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.