On Sept. 30, 2010, the Corps of Engineers’ Norfolk District Regulatory Branch
published a public notice announcing the creation of an Enforcement and
Compliance Section within the regulatory branch. The new section will be staffed
by seven project managers – six in the Corps’ Norfolk office, and one in the
Charlottesville field office.
In the past, Corps enforcement has been handled by the same project managers
who wrote the permits. In practice, this meant that the Corps would write
letters regarding violations of the Clean Water Act, but would typically leave
the actual enforcement mechanism (drafting consent orders and levying penalties)
to the Virginia Department of Environmental Quality, which has always had a
separate enforcement section.
Now that the Corps has created its own separate section, it is unlikely that
this past practice will continue. Thus, for clients who are alleged to have
violated the Clean Water Act, the likely result is that they will be forced to
deal with two enforcement authorities, and potentially two sets of compliance
orders and two fines. As the new section is only a month old, there are not yet
examples of the new system's operation.
It is likely this development will complicate resolution of enforcement
matters, and expose the regulated community to increased costs as well as the
possibility that fines would be inappropriately high because of the agencies’
separate, uncoordinated assessment of the fines’ impact.