33 U.S.C. § 2104 — Permits for construction and management

Page 685 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2104 1 So in original. Probably should be ‘‘Management’’. (Pub. L. 98–623, title II, § 202, Nov. 8, 1984, 98 Stat. 3394.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this title’’, meaning title II of Pub. L. 98–623, which in addition to enacting this chapter also enacted section 1220d of Title 16, Conservation, and amended sections 1220, 1220a, 1220b, and 1220c of Title 16. Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 98–623, title II, § 201, Nov. 8, 1984, 98 Stat. 3394, provided that: ‘‘This title [enacting this chapter and section 1220d of Title 16, Conservation, and amending sections 1220 to 1220c of Title 16] may be cited as the ‘National Fishing Enhancement Act of 1984’.’’ § 2102. Establishment of standards Based on the best scientific information avail- able, artificial reefs in waters covered under this chapter shall be sited and constructed, and sub- sequently monitored and managed in a manner which will— (1) enhance fishery resources to the max- imum extent practicable; (2) facilitate access and utilization by United States recreational and commercial fishermen; (3) minimize conflicts among competing uses of waters covered under this chapter and the resources in such waters; (4) minimize environmental risks and risks to personal health and property; and (5) be consistent with generally accepted principles of international law and shall not create any unreasonable obstruction to navi- gation. (Pub. L. 98–623, title II, § 203, Nov. 8, 1984, 98 Stat. 3395.) § 2103. National artificial reef plan Not later than one year after November 8, 1984, the Secretary of Commerce, in consultation with the Secretary of the Interior, the Secretary of Defense, the Administrator of the Environ- mental Protection Agency, the Secretary of the Department in which the Coast Guard is oper- ating, the Regional Fishery Managment 1 Coun- cils, interested States, Interstate Fishery Com- missions, and representatives of the private sec- tor, shall develop and publish a long-term plan which will meet the purpose of this chapter and be consistent with the standards established under section 2102 of this title. The plan must include— (1) geographic, hydrographic, geologic, bio- logical, ecological, social, economic, and other criteria for siting artificial reefs; (2) design, material, and other criteria for constructing artificial reefs; (3) mechanisms and methodologies for moni- toring the compliance of artificial reefs with the requirements of permits issued under sec- tion 2104 of this title; (4) mechanisms and methodologies for man- aging the use of artificial reefs; (5) a synopsis of existing information on ar- tificial reefs and needs for further research on artificial reef technology and management strategies; and (6) an evaluation of alternatives for facili- tating the transfer of artificial reef construc- tion materials to persons holding permits issued pursuant to section 2104 of this title, in- cluding, but not limited to, credits for envi- ronmental mitigation and modified tax obliga- tions. (Pub. L. 98–623, title II, § 204, Nov. 8, 1984, 98 Stat. 3395.) Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 2104. Permits for construction and management of artificial reefs (a) Secretarial action on permits In issuing a permit for artificial reefs under section 403 of this title, section 1344 of this title, or section 1333(e) of title 43, the Secretary of the Army (hereinafter in this section referred to as the ‘‘Secretary’’) shall— (1) consult with and consider the views of ap- propriate Federal agencies, States, local gov- ernments, and other interested parties; (2) ensure that the provisions for siting, con- structing, monitoring, and managing the arti- ficial reef are consistent with the criteria and standards established under this chapter; (3) ensure that the title to the artificial reef construction material is unambiguous, and that responsibility for maintenance and the fi- nancial ability to assume liability for future damages are clearly established; and (4) consider the plan developed under section 2103 of this title and notify the Secretary of Commerce of any need to deviate from that plan. (b) Terms and conditions of permits (1) Each permit issued by the Secretary sub- ject to this section shall specify the design and location for construction of the artificial reef and the types and quantities of materials that may be used in constructing such artificial reef. In addition, each such permit shall specify such terms and conditions for the construction, oper- ation, maintenance, monitoring, and managing the use of the artificial reef as are necessary for compliance with all applicable provisions of law and as are necessary to ensure the protection of the environment and human safety and prop- erty. (2) Before issuing a permit under section 1342 of this title for any activity relating to the siting, design, construction, operation, mainte- nance, monitoring, or managing of an artificial reef, the Administrator of the Environmental Page 686 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2105 Protection Agency shall consult with the Sec- retary to ensure that such permit is consistent with any permit issued by the Secretary subject to this section. (c) Liability of permittee (1) A person to whom a permit is issued in ac- cordance with subsection (a) and any insurer of that person shall not be liable for damages caused by activities required to be undertaken under any terms and conditions of the permit, if the permittee is in compliance with such terms and conditions. (2) A person to whom a permit is issued in ac- cordance with subsection (a) and any insurer of that person shall be liable, to the extent deter- mined under applicable law, for damages to which paragraph (1) does not apply. (3) The Secretary may not issue a permit sub- ject to this section to a person unless that per- son demonstrates to the Secretary the financial ability to assume liability for all damages that may arise with respect to an artificial reef and for which such permittee may be liable. (4) Any person who has transferred title to ar- tificial reef construction materials to a person to whom a permit is issued in accordance with subsection (a) shall not be liable for damages arising from the use of such materials in an ar- tificial reef, if such materials meet applicable requirements of the plan published under sec- tion 2103 of this title and are not otherwise de- fective at the time title is transferred. (d) Liability of the United States Nothing in this chapter creates any liability on the part of the United States. (e) Civil penalty Any person who, after notice and an oppor- tunity for a hearing, is found to have violated any provision of a permit issued in accordance with subsection (a) shall be liable to the United States for a civil penalty, not to exceed $10,000 for each violation. The amount of the civil pen- alty shall be assessed by the Secretary by writ- ten notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the violation. The Secretary may com- promise, modify, or remit with or without con- ditions, any civil penalty which is subject to im- position or which has been imposed under this section. If any person fails to pay an assessment of a civil penalty after it has become final, the Secretary may refer the matter to the Attorney General for collection. (Pub. L. 98–623, title II, § 205, Nov. 8, 1984, 98 Stat. 3396.) § 2105. Definitions For purposes of this chapter— (1) The term ‘‘artificial reef’’ means a struc- ture which is constructed or placed in waters covered under this chapter for the purpose of enhancing fishery resources and commercial and recreational fishing opportunities. (2) The term ‘‘State’’ means a State of the United States, the District of Columbia, Puer- to Rico, the United States Virgin Islands, American Samoa, Guam, Johnston Island, Midway Island, and Wake Island. (3) The term ‘‘waters covered under this chapter’’ means the navigable waters of the United States and the waters superjacent to the Outer Continental Shelf as defined in sec- tion 1331 of title 43, to the extent such waters exist in or are adjacent to any State. (Pub. L. 98–623, title II, § 206, Nov. 8, 1984, 98 Stat. 3397.) § 2106. Savings clauses (a) Tennessee Valley Authority jurisdiction Nothing in this chapter shall be construed as replacing or superseding section 831y–1 of title 16. (b) State jurisdiction Nothing in this chapter shall be construed as extending or diminishing the jurisdiction or au- thority of any State over the siting, construc- tion, monitoring, or managing of artificial reefs within its boundaries. (Pub. L. 98–623, title II, § 208, Nov. 8, 1984, 98 Stat. 3398.) CHAPTER 36—WATER RESOURCES DEVELOPMENT Sec. 2201. ‘‘Secretary’’ defined. 2202. Non-Federal engagement and review. 2203. Review of contracting policies. SUBCHAPTER I—COST SHARING 2211. Harbors. 2211a. Preserving United States harbors. 2212. Inland waterway transportation. 2213. Flood control and other purposes. 2213a. Treatment of certain benefits and costs. 2214. General credit for flood control. 2215. Feasibility studies; planning, engineering, and design. 2216. Rate of interest. 2217. Limitation on applicability of certain provi- sions in reports. 2218. General applicability of cost sharing. 2219. Definitions. 2220. Rivers and harbors and other waterways projects for benefit of navigation, flood con- trol, hurricane protection, beach erosion control, and other purposes. 2221. Cost limitations on projects. 2222. Use of other Federal funds. 2223. Transfer of excess credit. 2224. Crediting authority for federally authorized navigation projects. 2225. Credit or reimbursement. 2226. Water resources projects on Federal land. 2227. Clarification of impacts to other Federal fa- cilities. SUBCHAPTER II—HARBOR DEVELOPMENT 2231. Study of water resources development projects by non-Federal interests. 2232. Construction of water resources development projects by non-Federal interests. 2233. Coordination and scheduling of Federal, State, and local actions. 2234. Nonapplicability to Saint Lawrence Seaway. 2235. Construction in usable increments. 2236. Port or harbor dues. 2237. Information for national security. 2238. Authorization of appropriations. 2238a. Estimate of harbor maintenance needs. 2238b. Funding for harbor maintenance programs. 2238b–1. Budgetary treatment expansion and adjust- ment for the Harbor Maintenance Trust Fund.