33 C.F.R. § 326.3

Unauthorized activities

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(a) Surveillance. To detect unauthorized activities requiring permits, district engineers should make the best use of all available resources. Corps employees; members of the public; and representatives of state, local, and other Federal agencies should be encouraged to report suspected violations. Additionally, district engineers should consider developing joint surveillance procedures with Federal, state, or local agencies having similar regulatory responsibilities, special expertise, or interest.

(b) Initial investigation. District engineers should take steps to investigate suspected violations in a timely manner. The scheduling of investigations will reflect the nature and location of the suspected violations, the anticipated impacts, and the most effective use of inspection resources available to the district engineer. These investigations should confirm whether a violation exists, and if so, will identify the extent of the violation and the parties responsible.

(c) Formal notifications to parties responsible for violations. Once the district engineer has determined that a violation exists, he should take appropriate steps to notify the responsible parties.

(1) If the violation involves a project that is not complete, the district engineer's notification should be in the form of a cease and desist order prohibiting any further work pending resolution of the violation in accordance with the procedures contained in this part. See paragraph (c)(4) of this section for exception to this procedure.

(2) If the violation involves a completed project, a cease and desist order should not be necessary. However, the district engineer should still notify the responsible parties of the violation.

(3) All notifications, pursuant to paragraphs (c) (1) and (2) of this section, should identify the relevant statutory authorities, indicate potential enforcement consequences, and direct the responsible parties to submit any additional information that the district engineer may need at that time to determine what course of action he should pursue in resolving the violation; further information may be requested, as needed, in the future.

(4) In situations which would, if a violation were not involved, qualify for emergency procedures pursuant to 33 CFR part 325.2(e)(4), the district engineer may decide it would not be appropriate to direct that the unauthorized work be stopped. Therefore, in such situations, the district engineer may, at his discretion, allow the work to continue, subject to appropriate limitations and conditions as he may prescribe, while the violation is being resolved in accordance with the procedures contained in this part.

(5) When an unauthorized activity requiring a permit has been undertaken by American Indians (including Alaskan natives, Eskimos, and Aleuts, but not including Native Hawaiians) on reservation lands or in pursuit of specific treaty rights, the district engineer should use appropriate means to coordinate proposed directives and orders with the Assistant Chief Counsel for Indian Affairs (DAEN-CCI).

(6) When an unauthorized activity requiring a permit has been undertaken by an official acting on behalf of a foreign government, the district engineer should use appropriate means to coordinate proposed directives and orders with the Office, Chief of Engineers, ATTN: DAEN-CCK.

(d) Initial corrective measures. (1) The district engineer should, in appropriate cases, depending upon the nature of the impacts associated with the unauthorized, completed work, solicit the views of the Environmental Protection Agency; the U.S. Fish and Wildlife Service; the National Marine Fisheries Service, and other Federal, state, and local agencies to facilitate his decision on what initial corrective measures are required. If the district engineer determines as a result of his investigation, coordination, and preliminary evaluation that initial corrective measures are required, he should issue an appropriate order to the parties responsible for the violation. In determining what initial corrective measures are required, the district engineer should consider whether serious jeopardy to life, property, or important public resources (see 33 CFR 320.4) may be reasonably anticipated to occur during the period required for the ultimate resolution of the violation. In his order, the district engineer will specify the initial corrective measures required and the time limits for completing this work. In unusual cases where initial corrective measures substantially eliminate all current and future detrimental impacts resulting from the unauthorized work, further enforcement actions should normally be unnecessary. For all other cases, the district engineer's order should normally specify that compliance with the order will not foreclose the Government's options to initiate appropriate legal action or to later require the submission of a permit application.

(2) An order requiring initial corrective measures that resolve the violation may also be issued by the district engineer in situations where the acceptance or processing of an after-the-fact permit application is prohibited or considered not appropriate pursuant to § 326.3(e)(1) (iii) through (iv) below. However, such orders will be issued only when the district engineer has reached an independent determination that such measures are necessary and appropriate.

(3) It will not be necessary to issue a Corps permit in connection with initial corrective measures undertaken at the direction of the district engineer.

(e) After-the-fact permit applications. (1) Following the completion of any required initial corrective measures, the district engineer will accept an after-the-fact permit application unless he determines that one of the exceptions listed in subparagraphs i-iv below is applicable. Applications for after-the-fact permits will be processed in accordance with the applicable procedures in 33 CFR parts 320 through 325. Situations where no permit application will be processed or where the acceptance of a permit application must be deferred are as follows:

(i) No permit application will be processed when restoration of the waters of the United States has been completed that eliminates current and future detrimental impacts to the satisfaction of the district engineer.

(ii) No permit application will be accepted in connection with a violation where the district engineer determines that legal action is appropriate (§ 326.5(a)) until such legal action has been completed.

(iii) No permit application will be accepted where a Federal, state, or local authorization or certification, required by Federal law, has already been denied.

(iv) No permit application will be accepted nor will the processing of an application be continued when the district engineer is aware of enforcement litigation that has been initiated by other Federal, state, or local regulatory agencies, unless he determines that concurrent processing of an after-the-fact permit application is clearly appropriate.

(v) No appeal of an approved jurisdictional determination (JD) associated with an unauthorized activity or after-the-fact permit application will be accepted unless and until the applicant has furnished a signed statute of limitations tolling agreement to the district engineer. A separate statute of limitations tolling agreement will be prepared for each unauthorized activity. Any person who appeals an approved JD associated with an unauthorized activity or applies for an after-the-fact permit, where the application is accepted and evaluated by the Corps, thereby agrees that the statute of limitations regarding any violation associated with that application is suspended until one year after the final Corps decision, as defined at 33 CFR 331.10. Moreover, the recipient of an approved JD associated with an unauthorized activity or an application for an after-the-fact permit must also memorialize that agreement to toll the statute of limitations, by signing an agreement to that effect, in exchange for the Corps acceptance of the after-the-fact permit application, and/or any administrative appeal. Such agreement will state that, in exchange for the Corps acceptance of any after-the-fact permit application and/or any administrative appeal associated with the unauthorized activity, the responsible party agrees that the statute of limitations will be suspended (i.e., tolled) until one year after the final Corps decision on the after-the-fact permit application or, if there is an administrative appeal, one year after the final Corps decision as defined at 33 CFR 331.10, whichever date is later.

(2) Upon completion of his review in accordance with 33 CFR parts 320 through 325, the district engineer will determine if a permit should be issued, with special conditions if appropriate, or denied. In reaching a decision to issue, he must determine that the work involved is not contrary to the public interest, and if section 404 is applicable, that the work also complies with the Environmental Protection Agency's section 404(b)(1) guidelines. If he determines that a denial is warranted, his notification of denial should prescribe any final corrective actions required. His notification should also establish a reasonable period of time for the applicant to complete such actions unless he determines that further information is required before the corrective measures can be specified. If further information is required, the final corrective measures may be specified at a later date. If an applicant refuses to undertake prescribed corrective actions ordered subsequent to permit denial or refuses to accept a conditioned permit, the district engineer may initiate legal action in accordance with § 326.5.

(f) Combining steps. The procedural steps in this section are in the normal sequence. However, these regulations do not prohibit the streamlining of the enforcement process through the combining of steps.

(g) Coordination with EPA. In all cases where the district engineer is aware that EPA is considering enforcement action, he should coordinate with EPA to attempt to avoid conflict or duplication. Such coordination applies to interim protective measures and after-the-fact permitting, as well as to appropriate legal enforcement actions.

[51 FR 41246, Nov. 13, 1986, as amended at 64 FR 11714, Mar. 9, 1999; 65 FR 16493, Mar. 28, 2000]

Notes of Decisions

Cited in 49 cases (3 in the last 5 years), 1980–2026 · leading case: Sackett v. Env't Prot. Agency, 132 S. Ct. 1367 (2012).

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Sackett v. Env't Prot. Agency, 132 S. Ct. 1367 (2012). · cites it 4× “” 33 CFR §326.3 (e)(1)(iv) (2011).3 The issuance of the compliance order also marks the “ ‘consummation’ ” of the agency’s decisionmaking process.”

Hawkes Co. v. United States Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015). · cites it 4× “1367, 1372 (2012) (internal citation omitted) (quoting 33 C.F.R. § 326.3 (e)(1)(iv)).3 The record in the present case does not reveal that a similar impediment to receiving a permit exists once a JD has been issued.”

United States v. San Juan Bay Marina, 239 F.3d 400 (1st Cir. 2001). · cites it 2× “33 C.F.R. § 326.3 (e); see also Cumberland Farms, 826 F.”

Belle Co. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014). · cites it 2× “” 33 C.F.R. § 326.3 (e)(l)(iv). By contrast, Corps regulations do not impose any such restriction with regard to the JD; pertinent here, the JD itself does not state that it will limit a party’s ability to obtain a permit.”

United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151 (1st Cir. 1987). · cites it 2× “33 C.F.R. § 326.3 (c) (1986). The Corps then brought this enforcement action.”

Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592 (5th Cir. 2007). “; 33 C.F.R. § 326.3 (e)(1). If the Corps of Engineers identifies a particularly serious violation of the Clean Water Act, that agency may recommend the matter to the Environmental Protection Agency (“EPA”) for administrative penalties.”

Child v. United States, 851 F. Supp. 1527 (D. Utah 1994). · cites it 3× “[7] Similarly, upon a finding that a person is illegally engaging in dredge and fill activity, a district engineer of the Corps will notify the responsible persons, 33 C.F.R. § 326.3 (c), [8] and may later determine whether to recommend that legal action be taken.”

Route 26 Land Dev. Ass'n v. United States Gov't, 753 F. Supp. 532 (D. Del. 1990). · cites it 2× “33 C.F.R. § 326.3 (e). The EPA and the Corps share enforcement authority with respect to dredge and fill activities.”

Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Colonel Lloyd Kent Brown, 948 F.2d 1436 (5th Cir. 1991). “” 14 *1442 Second, the district court concluded that, because “the park project, as completed, does not deviate from the proposed project[,] which was reviewed by the Corps of Engineers and found to be permissible under the nationwide permit,” the Corps could not require changes…”

Hawkes Co. v. United States Army Corps of Engineers, 963 F. Supp. 2d 868 (D. Minnesota 2013). · cites it 2× “If the petitioners did not comply, they would immediately risk accruing substantial, daily penalties.”

Orange Env't, Inc. v. Cnty. of Orange, 811 F. Supp. 926 (S.D.N.Y. 1993). · cites it 2× “As a discretionary enforcement device, they contend that the court should not compel the County to seek an after-the-fact permit when the EPA has already elected off-site remediation as the best remedy for the County’s past violations at the landfill site.”

Orleans Audubon Soc'y, Sierra Club, Intervenor-Appellant v. Colonel Robert C. Lee, in His Off. Capacity as Dist. Eng'r, 742 F.2d 901 (5th Cir. 1984). “See 33 C.F.R. § 326.3 (c) (1983). 9 . In July 1982, the Corps combined the nationwide permit regulations promulgated under section 10 of the RHA with those promulgated under the authority of section 404 of the CWA.”

Show all 49 citing cases →

— 33 C.F.R. § 326.3(c)(1) — 1 case

Madison Route 20, L.L.C. v. Lake Cty. Bd. of Revision, 2014 Ohio 3183 (Ohio Ct. App. 2014).

— 33 C.F.R. § 326.3(e)(l)(iv) — 1 case

United States v. Bay-Houston Towing Co., Inc., 197 F. Supp. 2d 788 (E.D. Mich. 2002).

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