33 C.F.R. § 326.5

Legal action

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(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 §§ 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

(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.

Notes of Decisions

Cited in 17 cases (1 in the last 5 years), 1979–2024 · leading case: Nat'l Ass'n of Home Builders v. Env't Prot. Agency, 667 F.3d 6 (D.C. Cir. 2011).

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Nat'l Ass'n of Home Builders v. Env't Prot. Agency, 667 F.3d 6 (D.C. Cir. 2011). “§ 1319 (b) and 33 C.F.R. § 326.5 (providing for judicial actions by Agencies to enforce compliance or cease-and-desist order or to obtain penalties); 33 U.”

Dennis Hurst & Joyce Hurst v. United States of Am. & Don Hight, 882 F.2d 306 (8th Cir. 1989). · cites it 2× “g„ 33 C.F.R. § 326.5 (b) ("Where the district engineer determines that there has been non-compliance with the terms or conditions of a permit, he should first contact the permittee and attempt to resolve the problem.”

Harmon Cove Condo. Ass'n, Inc. v. John O. Marsh, Sec'y of the Army, Hartz Mountain Indus., Inc., & Hartz Mountain Assocs., 815 F.2d 949 (3rd Cir. 1987). “Because we are not confronted with a situation where the Secretary has made a finding that a permit holder is in violation of a condition of a permit, we need not consider whether mandamus relief would be available to compel the Secretary to issue an order requiring such person…”

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). “” 33 C.F.R. § 326.5 (1977). 8 Orleans has also asserted claims relating to the Corps’ regulatory authority under the Rivers and Harbors Act.”

Ctr. for a Sustainable Coast v. U.S. Army Corps of Engineers, 100 F.4th 1349 (11th Cir. 2024). “To remove the dock—the only thing that can redress the Center’s concrete injury—the Corps would have to bring an enforcement action against Lumar under 33 C.F.R. § 326.5 , and if Lumar failed to comply with the Corps’s decision, the Corps would have to sue Lumar for injunctive…”

Route 26 Land Dev. Ass'n v. United States Gov't, 753 F. Supp. 532 (D. Del. 1990). “33 C.F.R. § 326.5 . B. Judicial Review of Agency Action In determining whether or not to review an pre-enforcement agency action, a court must consider the finality of the agency action, whether or not judicial review of the action is precluded by statute, the ripeness of the…”

St. Andrews Park, Inc. v. United States Dep't of the Army Corps of Engineers, 314 F. Supp. 2d 1238 (S.D. Fla. 2004). “§ 1319(b); 33 C.F.R. § 326.5 ; see also Banks, 768 F.”

Nat'l Ass'n of Home Builders v. United States Army Corps of Engineers, 297 F. Supp. 2d 74 (D.D.C. 2003). “§ 1319(g); 33 C.F.R. §§ 326.5 , 326.6. For five-year intervals since 1977 the Corps has been issuing NWPs, including the most widely used permit, NWP 26.”

Nat'l Ass'n of Home Builders v. United States Env't Prot. Agency, 731 F. Supp. 2d 50 (D.D.C. 2010). “§ 1319 (b); 33 C.F.R. § 326.5 . B. Factual & Procedural History On December 3, 2008, the EPA’s Assistant Administrator for Water issued a letter to the Assistant Secretary of the Army for Civil Works, stating that two reaches of the Santa Cruz River were TNWs.”

Twp. of Parsippany-Troy Hills v. Costle, 503 F. Supp. 314 (D.N.J. 1979). “The Corps will, according to the government, issue an “after the fact” permit under 33 C. F.R. § 326.5. 17 . We note that our decision would in all respects be the same were we to apply, as plaintiff urges, the reasonableness standard of review.”

Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986). “On August 20, 1982, the Corps requested that Rayonier submit a formal Section 404 permit application for the sorting yard pursuant to former 33 C.F.R. § 326.5 . On *827 August 27, 1982 Rayonier submitted its Section 404 permit application.”

Sartori v. United States, 67 Fed. Cl. 263 (Fed. Cl. 2005). “See 33 C.F.R. § 326.5 (a). Therefore, on the current record, the court rejects plaintiffs arguments that section 326.”

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