Tag Archive for: Section 404

Possible Penalties for Wetlands Violations

The Army Corps of Engineers has acknowledged that neither Perry Homes, its subsidiaries nor its contractors sought a “jurisdictional determination” before filling the wetlands at the Woodridge Village construction site. Further, the Corps is now investigating whether those wetlands do fall within its jurisdiction and would have required a permit to fill.

We are a long way from determining whether there was any wrongdoing in that case and I am not alleging any.

But, in general, what could possible penalties be in wetlands cases and how are they determined? Several documents found on the EPA website give insight into how they think and assess penalties. Below is a summary plus links to the documents and several additional useful pages on the EPA enforcement website.

Corps and EPA Share Responsibility for Enforcement

The Corps of Engineers and EPA share responsibility for enforcing Section 404 of the Clean Water Act, which covers wetlands. Both civil and criminal penalties can apply to wetlands violations depending on circumstances. This page on the EPA’s site explains the shared authority.

Goals of Enforcement Program

EPA’s Section 404 enforcement program has three goals:

  • Protect the environment and human health and safety
  • Deter violations
  • Treat the regulated community fairly and equitably. 

Factors Considered in Initiating an Enforcement Action

A wide variety of factors determine whether EPA initiates an enforcement action. They include:

  • Amount of fill
  • Acres of wetlands filled
  • Environmental significance
  • Discharger’s compliance history

Largest Criminal Action in EPA History

At one end of the spectrum, you have criminal cases. Since enactment of the Clean Water Act, EPA and the Corps have used their criminal enforcement authorities sparingly, only for the most flagrant and egregious Section 404 violations. The most significant case ever:

  • On February 25, 2005 in the Southern District of Mississippi, a jury convicted Robert J. Lucas, Jr., his daughter, Robbie Lucas Wrigley, and his engineer, M.E. Thompson, Jr., on all 41 counts of an indictment which charged violations of Sections 402 and 404 of the Clean Water Act, mail fraud and conspiracy.
  • Lucas developed and sold hundreds of lots in the Big Hill Acres subdivision that impacted approximately 260 acres of wetlands without Corps of Engineers’ permits.
  • In developing the lots, Lucas filled wetlands for the construction of driveways and septic systems. The construction persisted after Lucas was ordered to desist by EPA and other agencies.
  • Wrigley sold lots and otherwise participated in the conspiracy knowing that the lots were saturated and could not support septic systems. 
  • M.E. Thompson, a professional engineer, wrongfully certified that the lots were suitable for septic systems, even after being told by the local health department to the contrary. 
  • In December 2005, the District Court sentenced Lucas to 108 months in prison and Wrigley and M.E. Thompson, Jr. to 87 months apiece.  The court fined each of the Defendants $15,000, assessed restitution of $1,407,400 for each Defendant and fined Lucas’s two companies Big Hill Acres, Inc., $4,800,000 and Consolidated Investments, Inc., $500,000.
  • The case represents the most significant criminal wetlands case in the history of the Clean Water Act.
  • The Decision was affirmed on appeal and the Supreme Court refused to consider it.

Factors Considered in Assessing Fines

At the other end of the spectrum, you have civil penalties with fines that can range from slaps-on-the-wrist to substantial.

This document explains how the agencies determine penalties. They use multiple factors, each with weighting, that are fed into a formula. EPA designed the formula to:

  • Require violators to promptly correct violations
  • Remedy harm caused by violations
  • Recover any economic benefit that accrued to violators, thereby assuring a level playing field for those who obey the law
  • Deter future violations
  • Promote fair and equitable treatment nationwide
  • Promote expeditious resolution (fast settlement)

Section 309 (d) of the CWA sets penalty factors for judges to use when determining the appropriateness of civil penalties.

  • Seriousness of violations
  • Economic benefit resulting from violations
  • History of violations
  • Good faith efforts to comply
  • Economic impact on violators
  • Other matters as justice may require

They refer cases to the Department of Justice when court ordered injunctive relief is necessary to remedy a violation, or when the violator has failed to comply with an administrative compliance order or consent order.

Formula Used in Assessing Fines

When calculating minimum settlement penalties, they use the following formula.

Penalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity Adjustment Factors) – Litigation Considerations – Ability to Pay – Mitigation Credit for Supplemental Environmental Projects

This determines the minimum penalty amount that the government will accept in the settlement of a case, in other words, “the bottom-line penalty” amount.

Economic Benefit Component Explained

Persons who violate the CWA by discharging dredged and/or fill material without Section 404 permit authorization or in violation of a permit may have obtained an economic benefit by obtaining an illegal competitive advantage (“ICA”), or as the result of delayed or avoided costs, or by a combination of these or other factors.

The objective of calculating and recovering economic benefit is to place violators in no better financial position than they would have been had they complied with the law.

Gravity Component Explained

The “gravity” component of the calculation considers whether the discharge endangers the health and welfare of persons. The greater the threat, the higher the weight. If the discharge has resulted in an imminent and substantial endangerment, they will apply the highest value for this factor.

Other Considerations

Secondary or Off-Site Impacts such as the extent to which discharges caused erosion and downstream sedimentation problems are considered.

Judges also consider the duration of violation. That’s the length of time that fill material has remained in place. Generally, the longer the duration, the higher the weight assigned to this factor.

Judges can also apply a Recalcitrance Adjustment Factor. The “recalcitrance” factor may be used to increase the penalty based on a violator’s bad faith, or unjustified delay in preventing, mitigating, or remedying the violation in question.

As distinguished from culpability, recalcitrance relates to the violator’s delay or refusal to comply with the law, to cease violating, to correct violations, or to otherwise cooperate with regulators.

Classes of Penalties

Section 309(g) of the Clean Water Act establishes two classes of administrative penalties. They differ with respect to maximum assessment for violations.

A Class I penalty may not exceed $11,000 per violation, or a maximum amount of $27,500.

A Class II penalty may not exceed $11,000 per day for each day during which the violation continues, or a maximum amount of $137,500.

EPA may also seek:

  • Injunctive relief
  • Criminal penalties (fines and/or imprisonment),
  • Civil penalties through judicial action.

Criminal Vs. Civil

When the Agency refers cases to the Department of Justice (DOJ) for civil and/or criminal enforcement under Section 309(d), EPA may seek civil penalties of up to $27,500 per day for CWA violations including the unauthorized discharge of fill.

Criminal prosecution in wetlands cases usually involves someone who knowingly or negligently discharges fill, makes false or misleading statements on permit applications, or endangers other people.

For More Information and Exact Text

The discussion above summarizes 32-pages of technical/legal EPA and Army Corps documents. I urge you to consult the sources directly for their exact wording.

Other useful links, for those seeking even more information, include:

Posted by Bob Rehak on 11/18/2019

811 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Guide to Lake Houston Area Floodplain Regulations

Guidelines for floodplain development can bewilder even professionals. Overlapping jurisdictions often have different guidelines.  And guidelines often change, as Houston’s just did. Houston now manages the 100-year and 500-year floodplains differently. Cities also have building codes that include more requirements.

Site of the proposed new marina and high rise development. Shot from over the West Fork shortly after Harvey. Note sand deposited by Harvey. 25 and 50-story high-rises would be built on the narrow strip between the lake and the Barrington at the top of frame.


People ARE generally allowed to build and place fill in floodplains. However, they must follow local floodplain guidelines and obtain permits that restrict what they can do. They must also submit environmental surveys, mitigate wetlands, and provide hydrologic and hydraulic studies. In Houston, they may move earth from one location to another within a floodplain, but not add to the total volume. The general rule of thumb: zero negative impact on the conveyance of the river.

If a development destroys wetlands, wetland credits must be purchased from a mitigation bank. Mitigation banks place conservation easements on some of our most valuable wetlands. By helping to finance conservation of those areas, destruction of less valuable wetlands elsewhere may be permitted. Generally but not always, the mitigation credits must be within the same watershed. However, this is not always the case. Extenuating circumstances may exist.

KSA once considered placing East End Park in a mitigation bank as a way to help finance its long range parks plan. The conservation easement would ensure that the character of the park never changed. And the money raised would have provided needed improvements to other parks at no cost to residents.

Federal Guidelines and How They Relate to Local

FEMA establishes minimum standards for a community to enroll in the National Flood Insurance Program (NFIP). By enrolling and administering floodplain regulations, it allows their residents the opportunity to purchase Flood Insurance through the NFIP. You must at least build at FEMA’s base flood elevation (BFE). But communities can and do set higher standards. And each may have different guidelines.

Engineers and regulators often talk about “freeboard factors.” Freeboard, a nautical term, means “the height of a ships side between the waterline and the deck.” In a flooding context, freeboard means minimum elevation above the BFE. You often see it described as “BFE + 1 ft.” Or 2 feet. Or X feet. Think of it as a safety margin. Any freeboard above the BFE is considered a local community’s higher standard.

To provide a context, below are links to some of the floodplain management orders/ordinances.

Houston Guidelines

HOW Ordinance is Executed

Note Chapters 9 and 13. They changed on September 1, 2018. Changes address building code issues for FEMA X zones. Zone X includes the 500 year flood plain. Many such areas flooded during Harvey.

Humble Guidelines

Flood Damage Protection Ordinance

Harris County Guidelines for Unincorporated Areas

Main Website


Cheat Sheet: Quick View of Changes Implemented in January

Montgomery County For Unincorporated Areas


Drainage Manual For Commercial Developments Greater than 15,000 SF 

Army Corps

If a development affects a major waterway like the San Jacinto River, its wetlands, its flow, or endangered wildlife, the Army Corps will also review studies submitted as part of the permitting process. They would look at applications from the point of view of the EPA and Clean Water Act, especially Section 404.  Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. … For most discharges that will have only minimal adverse effects, a general permit may be suitable. This is the major focus of the permitting process now underway for the high-rise development in Kingwood.


The Clean Water Act also contains a section 401.  It specifically focuses on how States and Tribes can use their water quality standards in Section 401 certifications to protect wetlands. States and Tribes can review and approve, condition, or deny any Federal permits or licenses that may result in a discharge to waters of United States within their borders, including wetlands. States and Tribes make their decisions to deny, certify, or condition permits or licenses primarily by ensuring the activity will comply with applicable water quality standards. In addition, States and Tribes look at whether the activity will violate effluent limitations, new source performance standards, toxic pollutants restrictions and other water resource requirements of State or Tribal law.

Jurisdictional Divides

The Houston ordinance only applies to Houston’s jurisdiction. Houston does not influence neighbors and cannot control or force their policies on other jurisdictions. That is important since Kingwood is surrounded by Humble, unincorporated Harris County (Atascocita and Huffman), and unincorporated Montgomery County.

The Key

Understand that if a developer/individual meets the requirements identified in the floodplain ordinance(s), they can develop in the floodplain (including the floodway). Floodplain administrators must follow the law. However, they try to discourage dangerous floodplain development by “working to rule.” By strictly following all rules with no wiggle room, floodplain administrators can drag permitting processes out. A knowledgeable floodplain administrator can find problems with plans, surveys, and engineering reports for years. By requesting revisions, they can make life so difficult for applicants that it affects the economics of their developments. Eventually they may decide that a project falls into that great black box called “too hard to do,” and walk away.

Words of Wisdom

A regulator told me today that the more people who protest a permit, the harder they are to ignore.

If you have concerns about the high rise development in Kingwood, make sure you register them with the Army Corps (which is currently reviewing the permitting from a CWA 404 perspective). The deadline: January 29.

Comments and requests for additional information should reference USACE file number, SWG-2016-00384, and should be submitted to:

  • Evaluation Branch, North Unit
  • Regulatory Division, CESWG-RD-E
  • U.S. Army Corps of Engineers
  • P.O. Box 1229
  • Galveston, Texas 77553-1229
  • 409-766-3869 Phone
  • 409-766-6301 Fax
  • swg_public_notice@usace.army.mil
Posted By Bob Rehak on January 9, 2019
498 Days Since Hurricane Harvey

Section 404 of the Clean Water Act and Sand Mines

Section 404 of the U.S. Clean Water Act states that, “Any discharge of dredged or fill material … where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.”

Hmmmm. Impaired flow? Does that sound like what happened to the San Jacinto as a result of sand deposited downstream of mines during Harvey?

Penalties for Violation Under 404

The law also states that, “Any person who violates any condition or limitation in a permit … shall he subject to a civil penalty not to exceed $10,000 per day of such violation.”

Findings of U.S. Army Corps of Engineers

The executive summary of the U.S. Army Corps of Engineers Value Engineering Study for its West Fork San Jacinto River Emergency Dredging Project states that, “On 25 August 2017, Hurricane Harvey made landfall along the Texas Coast as a Category 4 storm. Hurricane Harvey created extensive flooding along the West Fork of the San Jacinto River creating a record high flood of 69.22 feet as recorded by the West Fork San Jacinto River gauge on August 29, 2017. This record flooding increased the amount of deposition of sand and silt within the West Fork of the San Jacinto River from areas further upstream.” Below are two examples.

A giant sandbar almost completely blocks the west fork of the San Jacinto River just downstream from River Grove Park.

Yet another giant sand dune has formed at the mouth of the west fork of the San Jacinto. It is not being addressed by the Army Corps dredging project but should be. Thousands of homes upstream from the blockage flooded during Harvey.

Decreasing Amount of Water that Can Pass Through to Lake Houston

The executive summary continues, “This has now reduced the overall depth of the West Fork waterway and decreased the amount of water that can pass through and into Lake Houston. The epic flooding caused by Hurricane Harvey caused 4,139 structures along the West Fork to flood, including 1,621 homes with National Flood Insurance Program (NFIP) claims totaling over $407 million. In addition, during Hurricane Harvey a number of hospitals along the West Fork (e.g. Kingwood Medical Center, Memorial Hermann Northeast Hospital) were cut-off due to the West Fork flooding which prevented residents from obtaining emergency aid.”

The summary concludes, “Recent heavy rainfall along the West Fork has caused, and may again result in, downstream water levels that present a threat to persons and properties in the Kingwood-Humble-Lake Houston areas due to the inability of the West Fork to carry sufficient water volume. … In the event of another heavy rainfall event there is a near certain likelihood that wide-spread flooding will occur impacting even more homes than before due to the river’s inability to pass heavy volumes of water.”

Cost of Cleanup to Taxpayers

The Corps is currently spending almost $70 million on dredging to restore the carrying capacity of the river in a 2.1 mile section of the West Fork (out of an 8 mile stretch between U.S. Highway 59 and Lake Houston). The cost for cleaning up the rest of the river has yet to be determined. The initial project will not even address the biggest blockage on the river – a sand bar at the mouth of the West Fork that forces water to flow approximately 40 feet uphill before it reaches the main body of the lake.

 Need for Stricter Regulations on Sand Mining

One of the possibilities that the Corps examined to reduce such costs to taxpayers in the future was imposing stricter regulations on sand mining operations using 404 permitting. Although the Corps found this outside of the scope of their project, they address the possibility in section C-9 of their report on page 31.

The exact text reads:

“This comment refers to sand mining operations upstream of the US 59 highway bridge that are within the floodplain. During flood events where the boundaries of the sand pits are overrun, the river carries sediment from these pits downstream.

This is potentially a 404 issue/violation and it may be possible to get the mine operators to incorporate some abatement features to minimize the amount of sediment from their operations they discharge into the river.” [Emphasis Added]

This comment could apply equally to sand mining operations on the East Fork, but the East Fork was not within the scope of the Corps’ study.

Clearly, not all the sand above came from mines, but satellite imagery shows that much of it did.

It seems to me that sand mining operations located in the floodway which flood repeatedly would be eager to incorporate “abatement features,” such as the best management practices found in other states and countries. This just might show good faith effort to reduce pollution, mitigate liability under the Clean Water Act, and avoid a revocation of operating permits.

As always, these are my opinions on a matter of public policy protected under the first Amendment of the U.S. Constitution and the Anti-SLAPP statute of the great state of Texas.

Posted by Bob Rehak on 8/16/2018

352 Days since Hurricane Harvey