Army Corps / EPA Section 404 Wetlands Cease-and-Desist Response

The situation

Robert, 61, is a retired contractor in rural Virginia who bought 12 acres to build a house and eventually subdivide the remaining land. In 2024 Robert hired an excavator to grade a low-lying area on the property and install a culvert to drain it for a driveway and foundation. In early 2026 he received a letter from the Army Corps of Engineers Norfolk District Regulatory office: a cease-and-desist letter stating that the grading and fill "may have affected waters of the United States" and requiring Robert to stop all activity, contact the district office, and submit a restoration plan to return the area to pre-disturbance condition.

The letter warns of civil penalties up to $25,000 per day for continued violations. An aerial photo attached to the letter shows the graded area.

Robert believes the filled area was just a low-lying wet spot with no connection to any stream or river, it held standing water in the spring but drained naturally by summer. He never thought it was a "wetland." His excavator told him he didn't need any permits for drainage work on private land.

(a) The post-Sackett WOTUS question is his first-line defense, not his last resort. Sackett v. EPA (2023) eliminated federal jurisdiction over wetlands without a continuous surface connection to a navigable water. If Robert's filled area is an isolated wet spot with no surface connection to a stream, river, or lake, the Corps may not have jurisdiction at all under current WOTUS law. Requesting an Approved Jurisdictional Determination (AJD), a formal Corps determination of whether the area is WOTUS, can establish that the Corps lacks jurisdiction and terminate the enforcement proceeding.

(b) The Cease and Desist letter is not a final enforcement action. The C&D letter is the beginning of an enforcement dialogue, not a penalty assessment. Robert has no obligation to simply comply with the requested restoration before challenging the Corps' jurisdiction. Requesting an AJD is the standard procedural first step, and Corps district offices routinely pause informal enforcement discussions pending an AJD.

(c) If jurisdiction IS valid, the 2026 Nationwide Permits may provide a path. If Robert's driveway/culvert fill qualifies for an NWP (NWP 14 covers linear transportation projects; NWP 29 covers residential development fills), an after-the-fact NWP authorization may be available, eliminating the civil penalty exposure and potentially allowing Robert to keep the fill in place with minimal mitigation. The 2026 NWPs went into effect March 15, 2026, their updated thresholds may cover Robert's situation.

(d) The environmental attorney quoted Robert $14,000. For AJD request + C&D response + after-the-fact permit analysis. Robert's strongest argument (isolated wet spot, no surface connection to a navigable water) is a factual question that he can document himself with a basic site survey, aerial photographs, and topographic mapping showing drainage patterns.

Who receives this

Small landowners, rural property developers, and small residential contractors in states with active Corps Regulatory enforcement (Virginia, North Carolina, Florida, California, Texas, Ohio, Michigan) who have received an Army Corps or EPA cease-and-desist letter for an alleged Section 404 violation. Typically individuals who filled, graded, or excavated low-lying land for agricultural, residential, or small commercial development without realizing a federal wetlands permit might be required.

Why the agency will not advise you

Army Corps Regulatory district offices cannot advise respondents on how to contest their own cease-and-desist letters or challenge jurisdiction. EPA enforcement attorneys represent the government. The post-Sackett WOTUS jurisdictional challenge is a well-established legal argument, but knowing to make it, and how to structure the AJD request, is not intuitive to a landowner who has never dealt with federal wetlands law. Environmental attorneys' $8,000–$25,000 quotes are driven largely by the complexity of translating Sackett's "continuous surface connection" test into a site-specific argument.

Key facts, with sources

• Sackett v. EPA, 598 U.S. 651 (2023), fundamentally narrowed the definition of 'waters of the United States' (WOTUS) under the Clean Water Act. The Supreme Court held that WOTUS is limited to (1) traditional navigable waters (rivers and lakes that are navigable-in-fact) and (2) wetlands that have a continuous surface connection to a body of water constituting WOTUS (i.e., the wetland must be continuously connected at the surface to a navigable water with no intervening dry land). The Sackett decision eliminated federal jurisdiction over isolated wetlands and wetlands separated from navigable waters by a berm, road, or upland. EPA and Army Corps issued a revised WOTUS rule in response, significantly narrowing the scope of federally regulated waters compared to pre-2023 rules. Source: Sackett v. Environmental Protection Agency — Supreme Court Opinion (2023) · EPA Section 404 Enforcement Framework
• Army Corps of Engineers Nationwide Permits (NWPs) were finalized in March 2026 (effective March 15, 2026). NWPs authorize certain categories of activities in WOTUS without requiring an individual Section 404 permit, subject to general and activity-specific conditions. After an unpermitted fill is discovered, a Corps district regulatory officer may allow an 'after-the-fact' NWP authorization if the activity qualifies, which eliminates ongoing civil penalty exposure. The new 2026 NWPs revised several activities: NWP 29 (Residential Developments), NWP 39 (Commercial and Institutional Developments), and NWP 12 (Oil and Gas Pipeline Activities) all have modified thresholds. A respondent who determines their activity qualifies for an NWP can apply for after-the-fact NWP authorization as part of the enforcement resolution. Source: U.S. Army Corps of Engineers Finalizes 2026 Nationwide Permits · Nationwide Permits Overview — Army Corps of Engineers
• Section 404 enforcement enforcement proceeds through two agencies: the Army Corps of Engineers (Regulatory program) and EPA. The Corps typically issues the initial Cease and Desist letter; EPA can issue a more severe 'Administrative Compliance Order' (ACO) under CWA § 308 with potential civil penalties of up to $25,000 per day of ongoing violation. In practice, most landowner C&D enforcement is handled by the Corps Regulatory district without EPA escalation, especially for fill volumes under 1 acre. The Corps cannot advise the landowner on how to respond to the C&D, negotiate restoration scope, or challenge jurisdiction, the Regulatory officer who issued the C&D letter is the same officer who will review the landowner's response, and they cannot serve as the landowner's advocate. Source: Federal Enforcement for Section 404 Program — EPA · Section 404 of the Clean Water Act — Army Corps Regulatory Program

When to bring in a professional

Self-serve responses fit routine cases: clear facts, amounts a business can absorb, and a deadline still ahead of you. Bring in a licensed professional when the amount at stake is large relative to their fee, the facts are genuinely disputed, criminal exposure is possible, or the deadline has already passed. A short paid consultation to sanity-check your plan is often worth it even when you handle the filing yourself.

All sources for this guide

1. Sackett v. Environmental Protection Agency — Supreme Court Opinion (2023)
2. EPA Section 404 Enforcement Framework
3. U.S. Army Corps of Engineers Finalizes 2026 Nationwide Permits
4. Nationwide Permits Overview — Army Corps of Engineers
5. Federal Enforcement for Section 404 Program — EPA
6. Section 404 of the Clean Water Act — Army Corps Regulatory Program