and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject to same to removal by the United States as hereinafter provided for,

SEC. 16. 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 thirteen, fourteen, and fifteen of this Act shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction. And any and every 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 thirteen of this Act 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 War, or who shall willfully injure or destroy any work of the United States contemplated in section fourteen of this Act, or who shall willfully obstruct the channel of any waterway in the manner contemplated in section fifteen of this Act, shall be deemed guilty of a violation of this Act, and shall upon conviction be punished as hereinbefore 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. And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections thirteen, fourteen, and fifteen of this Act shall be liable for the pecuniary penalties specified in this section, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which 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.

SEC. 17. That the Department of Justice shall conduct the legal proceedings necessary to enforce the foregoing provisions of sections nine to sixteen, inclusive, of this Act; and it shall be the duty of district attorneys of the United States to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of War or by any of the officials hereinafter designated, and it shall furthermore be the duty of said district attorneys to report to the AttorneyGeneral of the United States the action taken by him against offenders so reported, and a transcript of such reports shall be transmitted to the Secretary of War by the Attorney-General; and for the better enforcement of the said provisions and to facilitate the detection and bringing to punishment of such offenders, the officers and agents of the United States in charge of river and harbor improvements, and the assistant engineers and inspectors employed under them by authority of the Secretary of War, and the United States collectors of customs and other revenue officers, shall 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 the aforesaid sections of this Act, or who may violate any of the provisions of the same: Provided, That no person shall be arrested without process for any offense not committed in the presence of some one of the aforesaid officials: And provided further, That whenever any arrest is made under the provisions of this 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; and such commissioner, judge, or court shall proceed in respect thereto as authorized by law in case of crimes against the United States.

SEC. 18. That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height width, of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in

giving such notice he shall specify the changes recommended by the Chief of Engineers that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If at the end of such time the alteration has not been made, the Secretary of War shall forthwith notify the United States district attorney for the district in which such bridge is situated, to the end that the criminal proceedings hereinafter mentioned may be taken. If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him willfully fail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge shall be deemed a new offense, and subject the persons, corporation, or association so offending to the penalties above prescribed: Provided, That in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court either by the United States or by the defendants.

SEC. 19. That whenever the navigation of any river, lake, harbor, sound, bay, canal, or other navigable waters of the United States shall be obstructed or endangered by any sunken vessel, boat, water craft, raft, or other similar obstruction, and such obstruction has existed for a longer period than thirty days, or whenever the abandonment of such obstruction can be legally established in a less space of time, the sunken vessel, boat, water craft, raft, or other obstruction shall be subject to be broken up, removed, sold, or otherwise disposed of by the Secretary of War at his discretion, without liability for any damage to the owners of the same: Provided, That in his discretion, the Secretary of War may cause reasonable notice of such obstruction of not less than thirty days, unless the legal abandonment of the obstruction can be established in a less time, to be given by publication, addressed "To whom it may concern," in a newspaper published nearest to the locality of the obstruction, requiring the removal thereof: And provided also, That the Secretary of War may, in his discretion, at or after the time of giving such notice, cause sealed proposals to be solicited by public advertisement, giving reasonable notice of not less than ten days, for the removal of such obstruction as soon as possible after the expiration of the above specified thirty days' notice, in case it has not in the meantime been so removed, these proposals and contracts, at his discretion, to be conditioned that such vessel, boat, water craft, raft, or other obstruction, and all cargo and property contained therein, shall become the property of the contractor, and the contract shall be awarded to the bidder making the proposition most advantageous to the United States: Provided, That such bidder shall give satisfactory security to execute the work: Provided further, That any money received from the sale of any such wreck, or from any contractor for the removal of wrecks, under this paragraph shall be covered into the Treasury of the United States.

SEC. 20. That under emergency, in the case of any vessel, boat, water craft, or raft, or other similar obstruction, sinking or grounding, or being unnecessarily delayed in any Government canal or lock, or in any navigable waters mentioned in section nineteen, in such manner as to stop, seriously interfere with, or specially endanger navigation, in the opinion of the Secretary of War, or any agent of the United States to whom the Secretary may delegate proper authority, the Secretary of War or any such agent shall have the right to take immediate possession of such boat, vessel, or other water craft, or raft, so far as to remove or to destroy it and to clear immediately the canal, lock, or navigable waters aforesaid of the obstruction thereby caused, using his best judgment to prevent any unnecessary injury; and no one shall interfere with or prevent such removal or destruction: Provided, That the officer or agent charged with the removal or destruction of an obstruction under this section may in his discretion give notice in writing to the owners of any such obstruction requiring them to remove it: And provided further, That the expense of removing any such obstruction as aforesaid shall be a charge against such craft and cargo; and if the owners thereof fail or refuse to reimburse the United States for such expense within thirty days after notification, then the officer or agent aforesaid may sell the craft or cargo, or any part thereof that may not have been destroyed in removal, and the proceeds of such sale shall be covered into the Treasury of the United States.

TITLE 33-NAVIGATION AND NAVIGABLE WATERS

CHAPTER II-CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY

PART 209-ADMINISTRATIVE PROCEDURE

Permits for Discharges or Deposits Into Navigable Waters

On December 31, 1970, notice of proposed rule making was published in the FEDERAL REGISTER (35 F.R. 20005) which set forth the text of regulations proposed as § 209.131 relating to the policy, practice and procedure in connection with applications for permits authorizing discharges or deposits into navigable waters of the United States or into any tributary from which discharged matter shall float or be washed into a navigable water (33 U.S.C. 407).

Pursuant to the above notice, a number of comments have been received from interested persons, and due consideration has been given to all relevant matter presented. In light of the preceding, a number of revisions have been made in the rules as proposed.

In accordance with the statement in the notice of proposed rule making, § 209.131, as set forth below, is hereby adopted effective on publication (4-7-71). $209.131 Permits for discharges or deposits into navigable waters.

(a) Purpose and scope. This section prescribes the policy, practice, and procedure to be followed by all Corps of Engineers installations and activities in connection with applications for permits authorizing discharges or deposits into navigable waters of the United States or into any tributary from which discharged or deposited matter shall float or be washed into a navigable water.

(b) Law and Executive order authorizing permits. (1) Section 13 of the Act approved March 3, 1899 (33 U.S.C. 407), hereafter referred to as the "Refuse Act," provides in part that it is 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 of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, 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; and it shall not be lawful 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 * * * whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the U.S. officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above-mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful."

(2) Executive Order No. 11574 (dated December 23, 1970) directs the implementation of a permit program under the authority of the Refuse Act and provides for the cooperation of affected Federal agencies in the administration of the program.

(c) Related legislation. (1) Section 21(b) of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et seq.), (see particularly the Water Quality Improvement Act of 1970, Public Law 91-224, 84 Stat. 108), reflects the concern of the Congress with maintenance of applicable water quality standards and, subject to certain exceptions, requires any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities which may result in a discharge into the navigable waters

of the United States to provide an appropriate certification that there is reasonable assurance that such activity will be conducted in a manner which will not violate applicable water quality standards.

(2) The concern of the Congress with the need to encourage the productive and enjoyable harmony between man and his environment and the need to promote efforts which will prevent or eliminate damage to the environment was manifested in the enactment of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347). Section 102 of that Act directs that:

"To the fullest extent possible: (1) The policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall

"(B) Identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical consideration ***"

(3) The concern of Congress with the quality of the aquatic environment as it affects the conservation, improvement and enjoyment of fish and wildlife resources is indicated in the Fish and Wildlife Act of 1956 (16 U.S.C. 742a et seq.), the Migratory Marine Game-Fish Act (16 U.S.C. 760c-760g) and the Fish and Wildlife Coordination Act (16 U.S.C. 661-666c). The latter Act provides in part that:

"[W]henever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the U.S. Fish and Wildlife Service, Department of the Interior, and with the head of the agency exercising administration over the wildlife resources of the particular State wherein the impoundment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources * * *. (16 U.S.C. 662(a))"

(See also Reorganization Plan No. 4 of 1970 which transferred certain functions from the Secretary of the Interior to the Secretary of Commerce.) As provided in paragraph (d) (6) of this section, advice as to the impact which a proposed discharge or deposit may or is likely to have on fish and wildlife resources, is to be solicited from the appropriate Regional Coordinator or Field Representative of the Department of the Interior and the appropriate Regional Director of the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

(4) As amended, the Act of June 29, 1888 (33 U.S.C. 441 et seq.) authorizes Corps of Engineers' officers supervising the harbors of New York. Hampton Roads, and Baltimore to enforce provisions making unlawful unauthorized discharges or deposits. Section 421 of Title 33 of the United States Code makes unlawful certain discharges or deposits into Lake Michigan.

(d) General policy. (1) The Refuse Act is considered to apply to all direct and indirect discharges or deposits (except those flowing from streets and sewers and passing therefrom in a liquid state) by any person, firm or other entity, including discharges or deposits from municipal, State, or Federal facilities or installations, into a navigable waterway or tributary or into a waste treatment system from which the same will flow into a navigable waterway or tributary. Discharges or deposits of water at a temperature different from that of the navigable waterway or tributary into which the same will flow are considered to be discharges or deposits to which the Refuse Act is applicable.

(2) The Refuse Act Permit Program is applicable to all discharges or deposits identified in subparagraph (1) of this paragraph except that the permit program is not applicable to:

(i) Discharges or deposits into a municipal or other public sewage treatment system:

(ii) Discharges or deposits from a municipal or other public sewage treatinent system;

(iii) Discharges or deposits of storm water runoff flowing from public or private streets;

(iv) Discharges or deposits into a waste treatment system. (This exception does not apply to discharges or deposits from such a waste treatment system into a navigable waterway or tributary. Thus, for example, the operator (including, if applicable, agencies or instrumentalities of the Federal, State, or local governments) of a waste treatment system which receives industrial discharges and is not tied in with a municipal or other public sewage treatment system must apply for and receive a permit if the system discharges or deposits into a navigable waterway or tributary.)

(v) Discharges or deposits which are placed on the banks of a navigable waterway or tributary where the same shall be liable to be washed into such navigable water either by ordinary or high tides, or by storms or floods whereby navigation shall or may be impeded or obstructed; (This exception does not apply to discharges or deposits placed on banks which, because of gravity or the slope of the ground on which the discharge or deposit is placed, will flow into a navigable waterway or tributary. Such discharges or deposits will require a permit under the Refuse Act Permit Program.)

(vi) Discharges or deposits from ships or other watercraft into a navigable waterway or tributary.

The foregoing exceptions from the permit program shall not be deemed to affect the applicability of the Refuse Act itself to such discharges or deposits unless such discharges or deposits fall within the statutory exception for "that flowing from the streets and sewers and passing therefrom in a liquid state." In addition to these exceptions, the Refuse Act Permit Program is not applicable to public or private dredging or filling which shall continue to be subject to the permit program instituted pursuant to 33 U.S.C. 403.

(3) Except as provided for in subparagraph (2) of this paragraph, all persons, firms, or other entities wishing to discharge or deposit into waters covered by the Refuse Act must apply to the District Engineer in charge of the District where the proposed discharge or deposit is to occur for a permit under the Refuse Act Permit Program. Permits covering discharges from facilities which are now in existence but which were not in existence or lawfully under constrcution prior to April 3, 1970, but be applied for as soon as possible following the publication of this section in the FEDERALL REGISTER, but in no event later than July 1, 1971. All other persons, firms, or other entities wishing to discharge or deposit into waters covered by the Refuse Act are obligated to apply for a permit prior to July 1, 1971, except that persons, firms, or other entities wishing to commence discharges or deposits into waters covered by the Refuse Act on or after November 1, 1971, must file a completed application for a permit no less than 120 days in advance of the date on which it is desired to commence discharges or deposits.

(4) All discharges or deposits to which the Refuse Act is applicable (see subparagraph (1) of this paragraph) are unlawful unless authorized by an appropriate permit issued under the authority of the Secretary of the Army. The fact that official objection may not have been raised with respect to past or continuing discharges or deposits does not constitute authority to discharge or deposit or to continue to discharge or deposit in the absence of an appropriate permit. Any such discharges or deposits not authorized by an appropriate permit may result in the institution of legal proceedings in appropriate cases for violation of the provisions of the Refuse Act. Similarly, the mere filing of an application requesting permission to discharge or deposit into navigable waters or tributaries thereof will not preclude legal action in appropriate cases for Refuse Act violations. The institution of either a civil or ciriminal action by the Department of Justice under the Refuse Act will not preclude the acceptance or continued processing of a permit application. Where a civil action to restrain a discharge or deposit which is the subject of the permit application that has been filed, and that action is disposed of other than by the dismissal of the case by the court, any permit which is issued shall include any requirements embodied in the resolution of the case. (5) The decision as to whether or on what conditions a permit authorizing a deposit which is the subject of the permit issued under the Refuse Act will be based on an evaluation of the impact which the discharge or deposit may have on (i) anchorage and navigation, (ii) applicable water quality standards and related water quality considerations, including environmental values reflected in water quality standards. and (iii) fish and wildlife values are not reflected in or adequately protected by applicable water quality standards, if any.