[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2007]
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]