Free Supplemental Brief - District Court of Federal Claims - federal

.~., -.

Case 1:05-cv-01179-MBH

Document 28-2

Filed 09/27/2006

Page 1 of 2
18685

RULES AND REGULATIONS

of navlga.tlon has come to the ø.ttentlon expected undel the plan or establlsh1nß' close to them as practicable. Monuments of Important Fedelfl, State, of the D1vslon Englneel. separate limits for solid and open work.
Cnoss REFEnf:NCS: For re¡;ulnilons of the

Federrr Power Commls61on. see ie CFR Chnptel' I.

its mel'lts and the probable commercial

(6) Each casc must be consIdered on

or municipal surveys. boundary monu-

ments, or lines of record. nnd Intersec-

developments at the ¡.artlcular 10cnJity

beyond established 11al'bor llnes Is construction between the bulkhead and reconstlUctlon or repair wil be used with permItted. pierhend lines wil be c011sidei'cd; 01' tl1iit caution: The bentlng of reference ltnes (2) If only a sigle typC of construcif sUps arc required in the íiitUle they should read from the reference point tion Is pennissible. a single 1Imiting llnc toward the harbor line point. wil be provided by excavating s110rewiird w1J be defined. It wil be designated a. (3) All harbor lines wll be straight of the bulkhead line, The fixing of the
protection at the same time of the In- for authority to use curves wil be made accompanied by a statement of necessity' ignated a plel'head and bulkhead line. terests of navigation without unreason- thei'eror, ably reducing wharf frontage. may ocIf soUd construction Is pennlsslble ad(4) An tnwelses formed by sections or jacent to the shore. and open-pUe work casionally requir some temporary ex- the lines and reference lines wll close may be extended farther toward the within l'ensonabJe limits, (7) If the channel faces of wharves channel, both bulkhead and p1erhead (5) The descriptive data wil be given and bUlkheads at the localiy arc to be llnes wil be established, In such form that a surveyor can readily (3) Applications for the shifting of vertical and the chnnnelward limits of locate an section of the lines or any harbor lines chnnnelward wil receive extension from shore wlU therefore be referencc line with as little additional vertical planes the establishment or a
If either open or solid construction is
permissible, the 11mtt1n~ line wil be des-

Geodetic Surveyor Lake Survey If either For eXainl)le, it be specified where it Is made manifest to him that hfllboi' line map may no stt'ucture on the system 12iis been established, and conthnt wil ba establishment is essential for the preser- placed between the pierhend nnd bullc- nected with monuments of that Survation and protection of a harbOl'. and head lines untu the speclnl pel'mlssion vey, Points on mllload ti'acks, wharves. .,rovldes that compcnsiitlon may iJe re. of the Secretary of the Army has been ol' other structm'cs likely to be shUted qull'ed where the extension of sti'uctures obtained; or thiit appllciitions for solid 01' chungcd in C011iecUol1 with work or
cause harbor l1nes to be established

(a) The harbor line system. (1) S,ec. clearly foreseen. it may be advisable be used as leference monuments. Wheruse of tlon 11 of th~ River and Jll\lbor Act to makl!with the some experImental ever practicable the harbol' line system features view of adopting ß. approved March 3, 11199 (33 U.S.C. 404) fixed plnn whel'c expei'iciice Indicated should be referenced to the i)lane coauthoiizes the Secl'etnn'Y of thc Army to
IDOle conclusively what it should be.

§ 209.150 Hnrbor lines.

studied cßrefully. If they cannot be where streets are weU defined or enn be located with reasonable nCCUrl\i\1' wil
ordinate system or the U.S. Coast and

tions of center or side lines of streets

plerhead ltne If the type of constructIon limits as permanently as possible 1s much is to be oppn-pllc work and a bulkhead preferred but proper concessions lor line if the construction is to be soUd fiL. sh01'e developments and for the adequate

lines unless exceptional circumstances

require the use of curves, In such cases prIor requests to the Chief of Engineers

pedlcnt, '

computation or investigation as practiof ench plane wiU be suffcient, If the cable. Harbor line maps. (1) Each ho.r(c) the creation of additional land which channel faces are to be inclined the posi- bor Une map wil be complete in itself, may be valuable for termial or other tion of the sloping limiting plane may be containing all description essential for wes, but It ddminlsbes the tidal prim defined either by the establlshment of the identification of monuments and and reduces the length of piers unless two lines lying In the plane and nt specI- reference points and for determining the the pierhead line Is moved correspond- fied elevations (at high and low water). postton of the harbor lines ingly. The movement of plerhead lines or by esta.blish1ng a single line at a specl- ground. Where str(!ts are well on the defied chnnelward In bnportant harbors fre- tied elevation and prescribing the degree or where they can be located with reapi'oval will be granted. The movement
very calcful considelntion before apsingle h::rbor line to deftne the position

of bulkhead lines chnnne1ward allows

ward limiting Quently sought as a means for accommo- of slope, When the chanel daUng longer sh1ps leads to gi'eater con- plane Is a slope the shoreward llmlt gestion of shipping. Increased velocty of where vertical walls may be erected wtl

sonable accuracy. the distance to the
harbor lies wUl be given from the inter-

cident. Accommodations for longer ships can generallY be provided by a chage lished ncross tl1e mouths or entrances to adjacent to the lines and mQnuments to of landing place to a wider section of the navigable waterwnys. Care wiD be taken which it relates and 1n a. manner convenharbor, the construction of piers oblique to sce that the termal points of the ient for reference. to the short line, or an cxteslon land- lines on either side of a waterway are (2) Where the hM'bor line system is ward of the sUps between piers. selected with the view of a future exten(4) The selection of the system wUl sion of harbor lines nlong the tributary. referenced to the u.s. Coast and Geodetic Survey plane coordinate grd sys1'equlre consideration of the following (9) When an extension or modifica- tem. the coordinates of every harbor questions: tion ol a project has been recommended Une point. monument and reference (i) Whether open-pile consruction or to Congress which wDl involve confict solid fill or both, or a combination of both with establlshed harbor Unes. the Dis- point wil be gi\len In tabular form on the map. Each map wil have two wil be permisible. report, with grid (m Whether the channel faces 01 trict Engineer w1J submit aas to abroga- meridian arrows. one showing the with recommendation and mD-p, wharves, buleads. a.nd simUar strc- tion or mOdlDcatlon of the harbOr line north and the other the true north, approprite notation as to the difference, tures at the locaUty should be vertical or lines affected. Where the plane coordinate i:rld system or incllned. (b) Establishment of liarbor lines. coordinates of (5) Exi'lence has shown that the (1) Jlarbor Jines wtn be so established Is not used. themonument andevery harbor line point, establishment of a bulkhead Uue has been and marked that their exact position at point. based on true merIdian,reference wil likefrequently followed by solid ffling to the

curent and more serious danger of ac-

be defied.

sections of center 11nes of streets measured iilong stt'cctt rug toward (II) Harbor lines wm not be estab- the Jines. The data wwi be incribed

limit and by requests thereafter from riparian owners to push the l1t farher

any point Can be determined wtth rea- wise be given in tabular form on the màp and a true meridian sl1own. Each secmonuments wil be established at con- tion of the hiirbor ltne wil be described
sonable ease and accuracy, Reference

toward the channeL. It ha alsQ been

venient intervals, W11enever possible conestablished on shore,

found in some ca.ses where the plerhead

venient ranges on the lines wi be
(2) Reference monuments win be

by Its length and appropriate azimuth

of beiirtng.
fe.c1Utles wtll be shown in su1clent detail
(4) The map wUl show whether the
proposed Itnes are pierhead lies. bul-

line is about a sllp's length clue1-

(3) Hydrographic data and shore

ward of the bulkhead UDe that deedraft vesls lyig in the sUps cut off

of permanent character so marked and to present conditions clearly.

much of the water ftow causg sUt de- identifed. They should be situnted on

desèribed that they may be readil

posits Wlder the piers and in th sUps the same side of the channel as the hend lines, combined plerhead and buIkthns considerably reduc1ng the benefts angle points referred to them and as hend lines. or otherwse, and wil 11150
FEDERAL REGISTER, VOL 33, NO, 245-WEDNESDAY, DECEMBER 18, 1968

Defendant's Exhibit 4

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Case 1:05-cv-01179-MBH
18686

Document 28-2

Filed 09/27/2006

Page 2 of 2

RULES AND REGULATIONS

removed from the original harbor line and direction or the Secl'etary of the tracing by errure. If it Is not practicable Ai'my, hydraulic minig in the territory brought up to date at suIclently fre~ to revise the approved map, the District dratned by the Sacramento and Snn quent intervals t.o i)l'otoct properly the Engineei' wil furnish ii new map pi'e- Joaquin River systems, Californiii. Unwhich open-pUe structures may be buit."

bear 0.1 or such portion of the fonowing origgalllnes to remain in foi'ce, the por- 661), created the California Debris Com. statement as may be appropriate: "The tion to be superseded, the new lines pro- misson, conssting or thrcß offcers of the fjlncers to legUUate undel bulkhead Uno defines the limit of soUd posed. and 0. draft of legend. In no in- Corps of Etl, flg: the pierhead line the limt to stance wil the apIJr"ved lines be thc supervision of the Chief or Engineers
(5) Harbor lie tracing w1U be

Federal Investment in the harbor lie

but omitting s-ll lines superseded. The proprietors. or in case of a corpration, ø.pprova,l of the Chief of Encincers wll Its manager or agent appointed for that seted in field notes. monuments and be obtained before new maps Il.'e lire- purpose, owning minig ground in this terrItory which it Is desired to work by maps relating to harbor lines in order pared or approved mnps nre modied, (h) Terms 'Used. in connection 2oit11 the hydraulic process, must file with the that costiy resurveys are not requied. In the reestnbUsbment of nny mon- 7¿arbor lines. To avoid ambiguity and Comuuisslon a verifed petition, satting uments careful selection of the sta.tions misunderstanding both by the pubUc and forth such facts as wil comply with law
wil take necessary mensures to protect the propert of the United States repre-

systems, District and Division Engineers found in pnr£gmph (c) of this sectton

pnn.ed in accordn.ce with tbe inst1'1Ctions

der section 9 of the act (27 stat. 508; 33 U.S,C. 669) , the individual proprietor oJ'

(6) DJstrict Engineers wll forward di- "shoreward (or landward) of harbor rect to the Director, U,S. Coast and Geo- lines" and "cbannelward (or rlverward) detic Surey. a copy of mnps of new or of harbor lines" wUl be used in offcial modifed lines. Thi wil be done onlY correspondence to describe position relachared by that agency.

WI be made to insur permnnency.

in the Department the expressions

and thß rues prescribed by the Commis-

sion. The law contain detailed intructions witb regard to facts requIred to be shown by the petitioner and the proceand specifying the manner in whIch op-

when waters o.re involved that are tive to harbor lies and such terms as in issuing an order diectig the methods
"inde" and "outside." which might be

dure to be followed by the Commision

(d) Notification to municipal author- given opposite meanings, shaU be erations sha.ll procee. Fu tnonnation ftis. Whenever nn application is x-ceived on law and proedure ca be obtained (i Duty of District Engineers with re- from the Secretary, CaJlfornia Debris for the establishment of hai'bor lines, or the modification of existing Unes withi spect to established liarbor Zines. (1) The Commission, 650 Capitol Man, Sacrathe corporate limits of any city, town, or establihment of a harbor lie impUes mento, CalifornIa 95814. politieal subdivision by 'an applicant consent to riparian owners to erect § 20!).1'10 Violations or Inws prol.Unc other than the municipal authority. the structures to the lle without special nn"ignblo wDters. proper mWWcipal a.uthorities wn be authoriation by the Secetary of the promptly notifed in order that they may Army but does not imply consent to op~ hi,) Ilegal structure$ or other tDork. ha.ve ful opportunty to be heard In case erations of every kind lnndward of the (1) Section 9 of the River and Harbor the contemplated harbor lies may inter- line. Such work as dredging 1'01' intance Act of March 3, 1899 (30 stat. 1151: 33 tere with any pIon or works which the may seriously interfere With the regiJen U.s,C. 401), makes it una.wful ttt concity, town. or political subdivision has of tho waterway and wil ordiiirily re- struct any 'bridge, diim, cUe, or cause-

avoided. '

plaed.

consltation with. interesteã parties. (1) PubUc notices of an application for establient of harbor lies or for modi-

(e) PubUc notice. fJublfc liearfno. and

quire the authoriation of the Department to insure that openntlons are con-

way over or in any na.vigable water

duct under proper restctions. (2) Distrct Engieers wil keep 10-

local authority has been obtained and
untU the loctIon and plans have been
for an strcture have been so approved.

of the United Stiites untU the proper

cation thereof are mPJdatol' and wm be

formed therefore of operations 1andward ø.pproved by the CWef of Engineers and

ised to all known interested pnrtles in themselves that aU work proposed or In ever case. , proc Is either of the cbaracter author-

of harbor lies sumclently to nse the Secretary of the Ary., When plan

from such (2) Public hearings in connection with ized by the" estnbllhment of the line or It :1s unawfll to deviatethereof plans uness the modcation re"; hiibor lies wil be kept to Do minmn has been properly authorized. Where ce1ved the approval of the Chief hasEngiof
and wID be the exception rather than the rue. A heo.ñng ,w1l be held at the d1s-

proposed structures are to touch or

the establishment of new harbor lines or structue touchg the harbor line or Act of Ma.rch 3. 1899 (30 Stat. 1151; the modifcntlon of existing harbor lines closely àppivachlg it wUl be inspected 33 U.s.C. 403), prohibits the creation is consdered necessary. the District En- on completion and Its location Wi be of any obstruction not affrmatively gieer will submit a detaUed report i'ecorded on an omce copy of the ha.rbor authorized by Congr~s to the navigable
thrugh tbe Divsion Engineer to the

11 he deems 0. public heiug essential, to the DIstrict Englneer in advance, plan of Transportation pursuant to section as in a known controvcrslii case or when of that portIon of the proposed work response from the public notice indicates which wil be adjo.cent to the harbor lie 6(g) (6) (C) of the Department of Transportation Act (80 Stat, 931) . that a publ1c henrlng should be held. in order tht the integrty of the Ite (2) Section 10 of the River and Harbor (f) Report on harbor lines. Whenever may be careful maintained, Every

creUon of the District Engineer only

buider should be caned upon to submit

closely approach the harbor Une the Plans of any brIdge or causeway now re-

neers and the BecreLary of tbe Ary. quire the appiova of the Depaent

the latet lnonnatIon on commerce
the general type find length of vessels

Chief of Engineers. The report wil give ing where such data may be found.
an ana1sis Of prospective commerce and

line map or note made on the map show-

Unite States, and makes It uniiwful
to buid any wharf, pIer, dolphin, boom

capacity of any of the waters of the

funds (tonnage and type of shipments) and § 209.155 Expenditure of Feclt'rßI lines. weh', breakwater, bUlkhead, Jetty, or for work shoreward or IInroot"

heads. The dmfts of vessels and barges
aU other matters that should be con-

and barges inooring at piers and buland the type of tows, whether single or

fiotila, should be dicussed along with
sidered by the Department.

(a) Section 5 of the River and Harbor bor Unes or where no harbor lines have Act of July 13, 1892 (27 Stat. 111; 33 been estabUshed, or to excavate or fill. U.S.C. 628), prohibits the expenditure or in any manner to a1ter or modify the of money appropriated for the improve- course. location, condition, or capacity ment of rivers and harbors for dredging of, any navigable water of the United Inside of harbor lines duly established. states, unless the work has been recom-

other structures, outside established har-

(g) Modification of harbor lines. ment to expend Federal funds for the authoried by the Secretary of the Ary. When mocUcø.tion of an estø.bUshedremoval of wrecks or other obstructions The authority of the Secretary of the Arm to prevent obstructions to navigaharbor lie becomes necessary the pro~ shoreward of established harbor lies. tion was extended to a.ificiii islands cedur wi be as prescribed for the estab~
lIent of original lines. The report

(b) It is not the poUey of the Depart- mended by the Cllef of Engineers and

of the District Engieer on such modi-

§ 209.160 The Carorn;. Debris Coaa.

DÙion.

and structures on the outer ConUne1' tal

Shelf (section 4(f) of the Outer Con-

cation w. be accompnned by a copy of

the approved map, showig clearly the Marc 1, 1893 (27 stat, 507; 33 U.S.C. 7,1953 (67 stat. 463; 43 U.s,C. IS33(f)).
fEDERAL REGISTER, VOL 33, NO. 24S-WEDNESDAY, DECEMßEIt 18, 1968

Section 1 of the Act of Congress of

tinental Shelf Lands Act approed Aug,