[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: 33CFR326.5]



[Page 455-456]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

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

                                 DEFENSE

 

PART 326_ENFORCEMENT--Table of Contents

 

Sec.  326.5  Legal action.



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

appropriate, he will recommend criminal or civil actions to obtain 

penalties for violations, compliance with the orders and directives he 

has issued pursuant to Sec. Sec.  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



[[Page 456]]



    (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.