LEGAL AND ADMINISTRATIVE AUTHORITY OF THE U.S. ARMY CORPS OF ENGINEERS OVER PUBLIC USE OF ITS JETTIES, GROINS AND BREAKWATERS
In order to provide a better understanding of federal legislative mandates affecting the public use of Corps of Engineers jetties, groins and breakwaters, a review was undertaken of key statutes identified in Corps publications as the legal basis for Corps construction, operation and safe management of these structures. In addition, as part of this review, a short analysis of major engineering regulations and internal Corps directives was made to ascertain their applicability for Corps in-stallation of safety features on coastal or navigation structures with heavy public use.
General Legal Background
The legal authority of the U.S. Army Corps of Engineers to construct and maintain jetties, groins and breakwaters derives historically from a series of river and harbor acts and the U.S. Constitution that grants this agency navigation power or Federal jurisdiction over the “navigable waters” of the United States. The commerce clause from which this navigation power is derived was not invoked in the early history of the United States on behalf of water resources management or use. However, Justice John Marshall in 18211 in Gibbons vs. Ogden declared that the commerce power of Congress (Article I, Section 8) “comprehends navigation within the limits of every state in the Union,” so far as navigation may be in any manner connected with “commerce with foreign nations, or among the several states or with the Indian tribes.” The Army Corps of Engineers became almost exclusively responsible for navigation and has retained that function ever since 18211 as the Federal government has devoted increasing attention to navigation improvements under rivers and harbors legislation.
Federal investigations and improvements of rivers, harbors and other waterways are under the jurisdiction of and are prosecuted by the Department of the Army under the direction of the Secretary of the Army and supervision of the Chief of Engineers (33 USC 5110). In most cases, these investigations and construction of navigation (jetties and breakwaters) and coastal (groins) structures are generally carried out pursuant to a specific directive of Congress and approval of the Chief of Engineers. The common practice is for the House and Senate Public Works Committees to report an omnibus bill authorizing various surveys. Once a survey report reaches Congress, the next step is congressional authorization of the project. Favorable surveys usually recommend authorization of a certain improvement or modification as the Chief of Engineers may deem advisable. Although the above general provisions and most other Federal laws relating to works of improvements to navigation (jetties and breakwaters) apply equally to coastal or shore protection structures (groins), for purposes of analysis, Federal laws dealing with the shore protection structures will be treated separately in this study since -certain important sections of these laws, particularly relating to operation and maintenance (O&M) of these structures, vary substantially from similar mandates applicable to navigation structures. The following short discussion presents only those specific portions of Federal laws potentially related to policy options for public use of these structures.
Specific Federal Laws Relating to Navigation Structures (Jetties and Breakwaters)
As specified in 33 USC 540, the Federal government bears all costs for the construction of commercial navigation structures such as jetties and breakwaters due to the widespread benefits associated with these structures. Section 5 of the River and Harbor Appropriations Act of 1844, as amended, provides for the economical operation and maintenance of these structures at Federal expense. This same O&M authority can be used for essential repairs, rehabilitation, replacement or reconstruction of existing jetties and breakwaters that are required for continued use of the project for authorized purposes which do not change the project in scope, scale and location.
Under provisions contained in Section 107 of the River and Harbor and Flood Control Act of 1960, PL 86-545, the Corps of Engineers can allot up to $25 million per year to construct jetties and breakwaters and related improvements for smaller navigation projects not specifically authorized by Congress. Each project for which money is allocated must’ be a complete project and the allotment must be adequate to complete the project. No more than $2 million can be allocated for construction of a project at one locality under provisions of PS 94-587, as amended (33 USC 577).
The Federal government also assumes one-half of the cost for the construction of any jetty or breakwater associated with recreational navigation. Non-Federal interests bear the other half of construction costs as well as providing necessary policing and other services. However, the costs of operations and maintenance of the general navigation features of a small boat harbor are a Federal responsibility as established by Section 6 of PL 93-251 (Water Resources Development Act of 1974)
Federal Role in the Development of Shore Protection Measure (Groins)
Under existing beach erosion general laws (River and Harbor Act of July 1930, PL 520, 33 USC 426; River and Harbor and Flood Control Act of July 1960, PL 727, 33 USC 566; Act of July 28, 1950, PL 826, 33 USC 426e; River and Harbor Act of 1962, PL 87-874; Act of November 1, 1963, PL 88-172, 33 USC 4263), Congress has authorized Federal participation in the cost of restoring and protecting the shores of property on the Atlantic and pacific Oceans, the Gulf of Mexico, the Great Lakes, and lakes, estuaries and bays directly connected to these water bodies through a variety of measures including the construction of groins. The intent of this legislation is to prevent or control shore erosion caused by wind and tidal-generated waves and currents along the nation’s coasts and shores.
While Section 103 of the River and Harbor Act of 1962 authorized the Secretary of the Army to undertake construction of small beach and shore protection projects, an act of August 13, 1946, as amended (33 USC 426e-426h) authorizes Federal technical and financial assistance by the Corps on the construction but not the maintenance of shore and beach erosion control and restoration projects specifically authorized by Congress. The Corps is further authorized to construct without specific authorization small shore and beach protection projects with total Federal share of costs not to exceed $1 million including allowance for maintenance.
Provisions for some Corps maintenance over groins is contained in other Federal authorities, both in general laws and in specific authorization acts. Congress has authorized in various river and harbor acts the emplacement of some shore erosion protection structures, including groins, as part of an overall navigation facilities project, and, as a consequence, all maintenance and operation costs of the entire project are borne by the Federal government. An example of specific authority for Corps-sponsored maintenance on beach erosion structures can be found in PL 84-99 (33 USC 701m). This law permits emergency protection of federally authorized and constructed hurricane and shore protection works and the repair or restoration of federally authorized and constructed hurricane or shore protection structures damaged or destroyed by wind, wave or water actions of other than an ordinary nature.
Federal Water Project Recreation Act (PL 89-72)
PL 89-72 specifies that full consideration shall be given to outdoor recreation opportunities in the investigation and planning of any Federal navigation, * flood control, reclamation, hydroelectric or multiple-purpose water resource project. PL 89-72 further specifies that benefits of a project that can be attributed to outdoor recreation as well as the costs shall be taken into account in determining the economic benefits of the project. In 1965, PL 89-72 thus firmly established that outdoor recreation may be considered an authorized purpose at large Corps projects, subject to economic justification of such enhancement and two further notable requirements.
First, project allocations to recreation cannot exceed project allocations to navigation, flood control and other project purposes (i.e., obviously a requirement that Corps projects not be constructed primarily for outdoor recreation).
Second, the full potential of those Federal projects serving these purposes will be developed only upon an agreement by a non-Federal body that it will administer the area for either or both of these purposes, and that it will advance or repay a prescribed share of the costs of the project allocated to these purposes. Under the 1965 law, the non-Federal body was required to bear not less than one-half of the separable costs of the project allocated to recreation and all the costs of the operation, maintenance and replacement.