[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR209.170]



[Page 148-151]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

PART 209_ADMINISTRATIVE PROCEDURE--Table of Contents

 

Sec.  209.170  Violations of laws protecting navigable waters.



    (a) [Reserved]

    (b) Injuries to Government works. Section 14 of the River and Harbor 

Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 408), makes it unlawful 

for any person or persons to take possession of or make use of for any 

purpose, or build upon, alter, deface, destroy, move, injure, obstruct 

by fastening vessels thereto or otherwise, or in any manner whatever 

impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, 

wharf, pier, or other work built by the United States, or any piece of 

plant, floating or otherwise, used in the construction of such work 

under the control of the United States, in whole or in part, for the 

preservation and improvement of any of its navigable waters or to 

prevent floods, or as boundary marks, tide gauges, surveying stations, 

buoys, or other established marks, nor remove for ballast or other 

purposes any stone or other material composing such works. (The 

Secretary of the Army may, on the recommendation of the Chief of 

Engineers, grant permission for the temporary occupation or use of any 

of the aforementioned public works when in his judgment such occupation 

or use will not be injurious to the public interest).

    (c) Injurious deposits. (1) Section 13 of the River and Harbor Act 

of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), makes it unlawful to 

throw, discharge, or deposit, or cause, suffer, or procure to be thrown, 

discharged, or deposited either from or out of any ship, barge, or other 

floating craft, or from the shore, wharf, manufacturing establishment, 

or mill, any refuse matter of any kind or description whatever other 

than that flowing from streets and sewers and passing therefrom in a 

liquid state, into any navigable water of the United States, or into any 

tributary of any navigable water from which the same shall float or be 

washed into such navigable water, or to deposit or cause, suffer, or 

procure to be deposited material of any kind in any place on the bank of 

any navigable water or on the bank of any tributary of any navigable 

water, where the same shall be liable to be washed into such navigable 

water, either by ordinary or high tides, or by storms or floods, or 

otherwise, whereby navigation shall or may be impeded or obstructed. 

Section 13 does not apply



[[Page 149]]



to the operations in connection with the improvement of navigable waters 

or construction of public works considered necessary and proper by the 

United States officers supervising such improvement or public work.

    (2) An Act of Congress approved June 29, 1888 (25 Stat. 209; 33 

U.S.C. 441-451), as amended on August 28, 1958 (72 Stat. 970-971; 33 

U.S.C. 441-451b) forbids the placing, discharging, or depositing of 

refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any 

other matter of any kind, other than that flowing from streets, sewers, 

and passing therefrom in a liquid state, in the tidal waters of the 

harbors of New York, Hampton Roads, and Baltimore or its adjacent or 

tributary waters, within the limits which shall be prescribed by the 

Supervisor of the Harbor. The provisions of this act are enforced by the 

Supervisor under the direction of the Secretary of the Army.

    (d) Penalties for violations. (1) Section 12 of the River and Harbor 

Act of March 3, 1899 (30 Stat. 1151; 33 U.S.C. 406), as amended, 

provides that every person and every corporation that shall violate any 

of the provisions of sections 9 and 10 shall be deemed guilty of a 

misdemeanor, and on conviction thereof shall be punished by fine, 

imprisonment, or both, in the discretion of the court. The removal of 

any structures or parts of structures erected in violation of the 

provisions of the said sections may be enforced by the injunction of any 

district court exercising jurisdiction in any district in which such 

structures may exist, and proper proceedings to this end may be 

instituted under the direction of the Attorney General.

    (2) Section 16 of the River and Harbor Act of March 3, 1899 (30 

Stat. 1153; 33 U.S.C. 412), provides that every person and every 

corporation that shall violate, or that shall knowingly aid, abet, 

authorize or instigate a violation of the provisions of sections 13, 14 

and 15, shall be guilty of a misdemeanor. On conviction thereof 

violators shall be punished by a fine, imprisonment, or both, in the 

discretion of the court. Any master, pilot, and engineer, or person or 

persons acting in such capacity, respectively, on board of any boat or 

vessel who shall knowingly engage in towing any scow, boat, or vessel 

loaded with any material specified in section 13 to any point or place 

of deposit or discharge in any harbor or navigable water, elsewhere than 

within the limits defined and permitted by the Secretary of the Army, or 

who shall willfully injure or destroy any work of the United States 

contemplated in section 14, or who shall willfully obstruct the channel 

of any waterway in the manner contemplated in section 15, shall be 

deemed guilty of a violation of the Act. Upon conviction he shall be 

punished as provided in this section, and shall also have his license 

revoked or suspended for a term to be fixed by the judge before whom 

tried and convicted. Any boat, vessel, scow, raft, or other craft used 

or employed in violating any of the provisions of sections 13, 14, and 

15 shall be liable for the pecuniary penalties specified in this 

section, and in addition for the amount of the damages done by said 

boat, vessel, scow, raft, or other craft. The latter sum shall be placed 

to the credit of the appropriation for the improvement of the harbor or 

waterway in which the damage occurred, and said boat, vessel, scow, 

raft, or other craft may be proceeded against summarily by way of libel 

in any district court of the United States having jurisdiction thereof.

    (e) Enforcement. (1) Section 17 of the River and Harbor Act of March 

3, 1899 (30 Stat. 1153; 33 U.S.C. 413) provides that the Department of 

Justice shall conduct the legal proceedings necessary to enforce the 

provisions of sections 9 to 16, inclusive, of the Act. It shall be the 

duty of district attorneys of the United States to prosecute vigorously 

all offenders against the same whenever requested to do so by the 

Secretary of the Army or by any of his designated representatives.

    (2) Under the provisions of section 17, District Engineers and the 

United States collectors of customs and other revenue officers, have 

power and authority to swear out process and to arrest and take into 

custody, with or without process, any person or persons who may commit 

any of the acts or offenses prohibited by sections 9 to 16, inclusive, 

or who may violate any of the provisions of the same. No person shall



[[Page 150]]



be arrested without process for any offense not committed in the 

presence of some one of the aforesaid officials. Whenever any arrest is 

made under the provisions of the Act, the person so arrested shall be 

brought forthwith before a commissioner, judge, or court of the United 

States for examination of the offenses alleged against him. Such 

commissioner, judge, or court shall proceed as authorized by law in case 

of crimes against the United States.

    (3) It is the duty of each District Engineer to take notice of any 

violations of the laws for the protection of the navigable waters and 

the works of improvement therein that may occur in his district and to 

take the necessary steps to secure enforcement of the law. Whenever any 

violation of any of these provisions of law comes to his attention he 

will investigate carefully the circumstances of the case and will 

determine the amount of the damage for which the parties committing the 

violation are responsible under section 16 of the River and Harbor Act 

of March 3, 1899. He will advise the responsible parties to remove the 

illegal structure or deposit or to repair the damage at their own 

expense within a time specified by him. When there is reasonable doubt 

as to legal liability or the facts do not appear to warrant legal 

action, the District Engineer will report the case to the Chief of 

Engineers for decision before communicating with the responsible 

parties. When the damage must be repaired within a reasonable time, if 

the responsible parties so request in writing and if, when considered 

advisable by the District Engineer to protect the interests of the 

United States, they furnish a satisfactory bond or other guaranty, he 

may cause the repairs to be made by employees of the United States and 

then call upon the responsible parties to pay over to him the cost of 

the damages when finally ascertained. Where the damage is not to be 

repaired within a reasonable time, the District Engineer will make final 

settlement with the responsible parties as promptly as possible by 

collecting the estimated amount of the damages. All sums so received 

will be deposited promptly to the credit of the Treasurer of the United 

States for recredit to the appropriation affected and will be accounted 

for in the District Engineer's money accounts by proper vouchers. With 

reference to the method of ascertaining the amount of the damages under 

section 16 of the Act, a distinction should be made between cases 

involving property that should be repaired and those involving property 

that should be abandoned. In the former cases the amount of the damages 

should be the total cost of repairs, less any salvage value and any 

enhanced value. In the latter cases, the amount of the damages should be 

the fair value of the property, less any salvage value. Whether or not 

there has been any enhanced value (i.e., whether the fair value of the 

structure immediately after the repairs is greater than its fair value 

immediately before the damage occurred) is a matter to be determined 

from an actual survey of the structure and knowledge of its age and 

condition. Where maintenance has equalled depreciation there probably 

would be no enhanced value.

    (4) If the parties deny their responsibility, or if they refuse or 

neglect to remove any unlawful structure or deposit or to repair the 

damages within the time specified by the District Engineer, the matter 

will be reported to the Chief of Engineers with such evidence as the 

District Engineer may be able to obtain and his recommended action under 

section 17 of the Act of March 3, 1899. In a situation requiring 

immediate action, the District Engineer may report the case directly to 

the U.S. attorney for the district. The Chief of Engineers will be 

advised of such action by a written report. Although the Corps of 

Engineers has certain police powers under this Act it has been the long 

standing policy to secure compliance with its provisions short of legal 

proceedings. Accordingly every effort will be made to accomplish 

corrective measures prior to initiation of action leading to such 

proceedings. As a general rule, while minor and unintentional or 

accidental violations of the provisions of the Act need not be reported 

to the Chief of Engineers, all willful or intentional violations and all 

cases in which the parties responsible refuse or neglect to remove the 

unlawful structure or deposit or to make



[[Page 151]]



good the damages suffered should be reported promptly to the Chief of 

Engineers in accordance with the above. It is the policy not to 

recommend prosecution when the violation of law is trivial, apparently 

unpremeditated, and results in no material public injury. Each report 

recommending prosecution should be accompanied by a full statement of 

the case and copies of correspondence relating thereto.

    (5) The procedure in cases involving injurious deposits is similar 

to that described for other violations of law except that as the damage 

caused thereby cannot be repaired readily there will be no reason for 

serving any notice on the parties responsible for the violations further 

than to bring to their attention the consequences thereof.

    (6) Section 6 of the river and Harbor Act approved March 3, 1905 (33 

Stat. 1148; 33 U.S.C. 417) provides that expenses incurred by the Corps 

of Engineers in all investigations, inspections, hearings, reports, 

service of notice, or other action incidental to examinations into 

alleged violations of laws for protection and preservation of navigable 

waters shall be payble from any funds which may be available for the 

improvement, maintenance, operation, or care of the waterways or harbors 

affected. If such funds are not available in sums judged by the Chief of 

Engineers to be adequate, they shall be payable from any funds available 

for examinations, surveys, and contingencies of rivers and harbors.



[33 FR 18670, Dec. 18, 1968, as amended at 36 FR 17855, Sept. 4, 1971; 

51 FR 45765, Dec. 22, 1986; 53 FR 27512, July 21, 1988]