[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR326.5]

[Page 445-446]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 326--ENFORCEMENT--Table of Contents
 
Sec. 326.5  Legal action.

    (a) General. For cases the district engineer determines to be 
appropriate, he

[[Page 446]]

will recommend criminal or civil actions to obtain penalties for 
violations, compliance with the orders and directives he has issued 
pursuant to Secs. 326.3 and 326.4, or other relief as appropriate. 
Appropriate cases for criminal or civil action include, but are not 
limited to, violations which, in the district engineer's opinion, are 
willful, repeated, flagrant, or of substantial impact.
    (b) Preparation of case. If the district engineer determines that 
legal action is appropriate, he will prepare a litigation report or such 
other documentation that he and the local U.S. Attorney have mutually 
agreed to, which contains an analysis of the information obtained during 
his investigation of the violation or during the processing of a permit 
application and a recommendation of appropriate legal action. The 
litigation report or alternative documentation will also recommend what, 
if any, restoration or mitigative measures are required and will provide 
the rationale for any such recommendation.
    (c) Referral to the local U.S. Attorney. Except as provided in 
paragraph (d) of this section, district engineers are authorized to 
refer cases directly to the U.S. Attorney. Because of the unique legal 
system in the Trust Territories, all cases over which the Department of 
Justice has no authority will be referred to the Attorney General for 
the trust Territories. Information copies of all letters of referral 
shall be forwarded to the appropriate division counsel, the Office, 
Chief of Engineers, ATTN: DAEN-CCK, the Office of the Assistant 
Secretary of the Army (Civil Works), and the Chief of the Environmental 
Defense Section, Lands and Natural Resources Division, U.S. Department 
of Justice.
    (d) Referral to the Office, Chief of Engineers. District engineers 
will forward litigation reports with recommendations through division 
offices to the Office, Chief of Engineers, ATTN: DAEN-CCK, for all cases 
that qualify under the following criteria:
    (1) Significant precedential or controversial questions of law or 
fact;
    (2) Requests for elevation to the Washington level by the Department 
of Justice;
    (3) Violations of section 9 of the Rivers and Harbors Act of 1899;
    (4) Violations of section 103 the Marine Protection, Research and 
Sanctuaries Act of 1972;
    (5) All cases involving violations by American Indians (original of 
litigation report to DAEN-CCI with copy to DAEN-CCK) on reservation 
lands or in pursuit of specific treaty rights;
    (6) All cases involving violations by officials acting on behalf of 
foreign governments; and
    (7) Cases requiring action pursuant to paragraph (e) of this 
section.
    (e) Legal option not available. In cases where the local U.S. 
Attorney declines to take legal action, it would be appropriate for the 
district engineer to close the enforcement case record unless he 
believes that the case warrants special attention. In that situation, he 
is encouraged to forward a litigation report to the Office, Chief of 
Engineers, ATTN: DAEN-CCK, for direct coordination through the Office of 
the Assistant Secretary of the Army (Civil Works) with the Department of 
Justice. Further, the case record should not be closed if the district 
engineer anticipates that further administrative enforcement actions, 
taken in accordance with the procedures prescribed in this part, will 
identify remedial measures which, if not complied with by the parties 
responsible for the violation, will result in appropriate legal action 
at a later date.