Unauthorized activities are activities that required a Corps permit under Section 9 or 10 of the Rivers and Harbors Act of 1899 (RHA), Section 404 of the Clean Water Act (CWA) and/or Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, and a permit was not issued. Within the Sacramento District, unauthorized activities primarily consist of work in navigable waters subject to Section 10 of the RHA and discharges of dredged and/or fill material into waters of the U.S. subject to Section 404 of the CWA.

When a regulated activity is undertaken in a Corps jurisdictional area without a permit, or when an activity does not comply with permit terms and conditions, enforcement action becomes necessary. Some violations are detected by Corps personnel during field visits or compliance inspections. However, since it is not practicable to monitor all activities in the district, the Corps heavily relies on the public to report unauthorized activity. Many activities investigated are reported to the Corps by private citizen or local, state, and federal agencies. It is Corps policy to investigate all reports that are received.

When a violation is confirmed, the Corps seeks to resolve the case in various ways, depending on the circumstances. The Corps will attempt to contact violators to request information on the activity and to inform them of the violation(s). A warning letter is usually sent to a violator if the work has already been completed. If the work is ongoing, a cease and desist order is sent to the violator, directing that the unauthorized work be stopped immediately. The Corps will also notify other agencies of the violation and requests site-specific comments from them. The Environmental Protection Agency, the U.S. Fish and Wildlife Service, state and local resource agencies, and if appropriate, the National Marine Fisheries Service are notified.

When a structure is constructed in navigable water without Corps authorization, we may require removal of the structure. Depending on the impact of the structure on navigation, we may authorize the structure to remain in place, with or without modification, by issuing an after-the-fact permit.

If an activity involves the unauthorized fill of a wetland or other water of the U.S., the violator may choose to immediately remove the fill material and restore the area back to pre-existing condition. The case may then be closed, provided the violator did not commit a willful violation of Clean Water Act regulations.

After considering agency comments and information provided by the violator, the Corps determines whether the unauthorized activity may be authorized by an after-the-fact permit or whether restoration of the site will be required. Some form of mitigation may be required as well. In less that 10 percent of cases, the violator is allowed to apply for an after-the-fact permit. Usually, restoration is required; more than two-thirds of violations are resolved by some form of restoration.

The U.S. Environmental Protection Agency (EPA) has independent enforcement authority for violations involving fill in wetlands and other waters under Section 404 of the CWA. Accordingly, some cases are referred to EPA for enforcement action. This happens for less than 10 percent of enforcement cases. The Corps and the EPA have a Memorandum of Agreement (opens in a new tab) for enforcement. In addition, the Sacramento District has field level agreements with EPA Region VIII (opens in a new tab) and EPA Region IX (opens in a new tab) concerning enforcement. The EPA does not have enforcement authority over violations of Section 10 of the RHA, and therefore these unauthorized activities are resolved by the Corps.

Compliance with the terms and conditions of a Corps permit is essential to ensure enforcement action is not taken for projects that have been permitted. The terms and conditions placed on a Corps permit ensure that impacts to waters of the U.S. are avoided, minimized and compensated to the maximum extent practicable.

In order to ensure compliance with the terms and conditions of a permit, the Corps may periodically conduct compliance visits to the project/work site. When an activity is authorized by the Corps, it is conditioned to allow representatives of the Corps to inspect the activity and any mitigation, preservation or avoidance areas at any time deemed necessary. The permittee will be notified in advance of all compliance inspections. If the Corps determines that the activity is not in compliance with the terms and conditions of the issued permit, the permittee will be notified of the action against them. Resolution of a non-compliance action may include requirements for the permittee to bring the activity into compliance, revocation of the permit, modification of the permit, requirements for additional compensatory mitigation, and/or in some instances, penalties and fines.

It is extremely important that permittees carefully read all of the terms and conditions of their permit authorization to ensure compliance. In addition, permittees should ensure that all contractors and construction workers have carefully read all of the terms and conditions of the permit and ensure that a copy of the permit is kept on-site for easy access and review. If all parties involved in implementing the authorized activity are aware of the terms and conditions, the chances that the activity will result in a non-compliance action will be greatly reduced.