[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: 33CFR209.200]



[Page 151-153]

 

                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.  209.200  Regulations governing navigable waters.



    (a) Publication of regulations. (1) Regulations prescribed by or 

under the direction of the Secretary of the Army to govern navigation 

and navigable waters, are contained in the Code of Federal Regulations, 

title 33, Navigation and Navigable Waters, Chapter II.

    (2) District engineers (or division engineers if considered 

preferable by the latter to avoid duplication in cases where the 

regulations involved apply to more than one district) will distribute 

copies of departmental regulations to all known interested parties as 

soon as their publication has been noted in the Federal Register. In the 

case of regulations applicable to more than one division, distribution 

will be handled as agreed upon by the division engineers concerned. 

Under the Administrative Procedure Act (5 U.S.C. 551-553), publication 

in the Federal Register shall be not less than 30 days prior to the 

effective date except as



[[Page 152]]



otherwise provided upon good cause found and published with the 

regulations.

    (b) Navigation regulations. (1) Section 7 of the River and Harbor 

Act approved August 8, 1917 (40 Stat. 266; 33 U.S.C. 1) authorizes the 

Secretary of the Army to prescribe such regulations for the use, 

administration, and navigation of the navigable waters of the United 

States as public necessity may require for the protection of life and 

property, or for operations of the United States in channel improvement, 

covering all matters not specifically delegated by law to some other 

executive department. The statute provides for the posting of 

regulations and punishment for violations.

    (2) Section 6 of the River and Harbor Act approved June 13, 1902 (32 

Stat. 374; 33 U.S.C. 499) provides that regulations prescribed by the 

Secretary of the Army may be enforced as provided in section 17 of the 

River and Harbor Act approved March 3, 1899 (30 Stat. 1153; 33 U.S.C. 

413).

    (3) District Engineers will take action with respect to regulations 

prescribed for waterways under their jurisdiction:

    (i) To insure that the regulations are brought to the attention of 

the public.

    (ii) To insure that the regulations are properly and fairly 

administered.

    (iii) To recommend any revisions necessary to permit full use of the 

waterway by the public.

    (c) Danger zones. (1) The Secretary of the Army has authority to 

prescribe regulations for the use and navigation of any area of the 

navigable waters of the United States or waters under the jurisdiction 

of the United States likely to be endangered by Department of Defense 

operations. This authority is pursuant to the provisions of Chapter XIX 

of the Army Act of July 9, 1918, or of section 7 of the River and Harbor 

Act of August 8, 1917.

    (2) On receipt of a request from any element of the Department of 

Defense or other agency for approval by the Secretary of the Army of 

regulations establishing danger zones under authority of either Act, the 

District Engineer will, prior to issuing any public notice, make certain 

that the applicant: (i) Has coordinated its proposed operations with any 

operations being conducted or contemplated by other agencies in the same 

area with a view to avoiding interagency conflicts, (ii) has obtained 

clearance from the proper Regional Subcommittee on Airspace, Rules of 

the Air and Air Traffic Control (Air Coordinating Committee), where the 

use of airspace is involved, and (iii) has conducted preliminary 

discussions with local interests when considered advisable. In the case 

of proposed danger zones off the Atlantic and Pacific Coasts, the 

coordination referred to in (c)(2)(i) of this section will include the 

Commander, Service Force, U.S. Atlantic Fleet, or the Commander, Western 

Sea Frontier.

    (3) The authority to prescribe danger zone regulations must be 

exercised so as not to interfere with or restrict unreasonably the food 

fishing industry. Whenever the establishment of a proposed danger zone 

or restricted area may affect fishing operations the District Engineer 

will consult with the regional director, U.S. Fish and Wildlife Service, 

Department of the Interior. Two copies of all notices of applications 

for the establishment of danger zones and restricted areas will be 

forwarded to the Chief of Staff, U.S. Air Force. In addition, notices of 

all applications relating to the establishment of aerial gunnery and 

bombing areas will be sent to local Army, Navy, and Federal Aviation 

Agency representatives.

    (4) If the use of water areas is desired only for such temporary, 

occasional, or intermittent periods that operations can be conducted 

safely without imposing restrictions on navigation, applicants may be 

informed that formal regulations by the Secretary of the Army are not 

required. However, proper notices for mariners requesting that vessels 

avoid the areas will be issued by the District Engineer to all 

interested persons. Copies will be sent to the Commandant, U.S. Coast 

Guard, Washington, D.C. 20226 and the Commander, U.S. Naval 

Oceanographic Office, Washington, D.C. 20390.

    (d) Dumping grounds. (1) Section 4 of the River and Harbor Act of 

March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419), authorizes the Secretary 

of the Army to prescribe regulations to govern the



[[Page 153]]



transportation and dumping into any navigable water, or waters adjacent 

thereto, of dredgings and other refuse materials whenever in his 

judgment such regulations are required in the interest of navigation.

    (2) Section 13 of the river and Harbor Act of March 3, 1899 (30 

Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to 

permit the deposit of refuse matter in navigable waters, whenever in the 

judgment of the Chief of Engineers anchorage and navigation will not be 

injured thereby, within limits to be defined and under conditions to be 

prescribed by him. Although the Department has exercised this authority 

from time to time, it is considered preferable to act under Section 4 of 

the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 

419). As a means of assisting the Chief of Engineers in determining the 

effect on anchorage of vessels, the views of the U.S. Coast Guard will 

be solicited by coordination with the Commander of the local Coast Guard 

District.

    (3) Under the authority contained in an Act of Congress to prevent 

obstructive and injurious deposits within the harbor and adjacent waters 

of New York City of June 29, 1888 (25 Stat. 209; 33 U.S.C. 441), the 

Supervisor of New York Harbor has established dumping areas in those 

waters and has prescribed regulations for their use. The provisions of 

the act are enforced by the Supervisor under the direction of the 

Secretary of the Army.

    (4) In considering requests for the establishment of dumping 

grounds, District and Division Engineers will give careful consideration 

to the requirements of navigation and will take action to prevent 

unreasonable injury to fish and wildlife.

    (e) Public notice and consultation with interested parties. (1) When 

applications are received for the promulgation of regulations as 

outlined in paragraphs (b) through (f), inclusive, of this section, 

District Engineers will issue public notices to all parties deemed 

likely to be interested and specifically to the agencies referred to in 

these paragraphs. The notice should fix a limiting date within which 

comments will be received, normally a period not less than 30 days after 

the actual mailing of the notice. If time is an essential element when 

adequately explained by the applicant, the District Engineer is 

authorized to give interested parties a minimum of 10 days after receipt 

of the notice in which to present protests. A copy of every notice 

issued will be sent to the Chief of Engineers, Attention: ENGCW-ON.

    (2) Copies of the notices sent to interested parties, together with 

a list of parties to whom sent, will accompany reports on all 

applications for promulgation of regulations submitted to the Chief of 

Engineers for necessary action.

    (3) In all instances when response to a public notice has been 

received from a Member of Congress, the District Engineer will inform 

the Member of Congress of the final action taken on the application.

    (f) Public hearings. (1) It is the policy of the Chief of Engineers 

to conduct his civil works activities in an atmosphere of public 

understanding, trust, and mutual cooperation and in a manner responsive 

to public needs and desires. To this end, public hearings are helpful 

and will be held whenever there appears to be sufficient public interest 

to justify such action. In case of doubt, a public hearing should be 

held.

    (2) Among the instances warranting public hearings are general 

public opposition to the promulgation of regulations governing the use 

and navigation of navigable waters. District Engineers will notify the 

Division Engineer of the need for a hearing, state the proposed 

arrangements therefor and obtain his concurrence therein. Public 

hearings will be held in any case when Congressional interests or 

responsible local authorities make an official and valid request 

therefor and such action will fulfill the above-stated policy and 

objectives.



[33 FR 18670, Dec. 18, 1968, as amended at 51 FR 45765, Dec. 22, 1986; 

52 FR 24157, June 29, 1987]