The American Samoa Government (ASG) was served a notice of violation for unauthorized activities involving the discharge of fill material into the sea and unpermitted work along the shoreline in Tula. This was in a November 15th letter from Linda Speerstra, Chief Regulatory Office, US Army Corps of Engineers, to Director of Public Works, Faleosina Voigt.
The Corps of Engineers said that the violations were found during compliance visits by their Regulatory staff from September 20th-22nd.
“Section 404 of the Clean Water Act (CWA) requires that a Dept. of the Army permit be obtained for the placement of discharge of dredged and/or fill material into WOTUS (Waters of the United States), prior to conducting the work…” said the notice of violation. “The Pacific Ocean is a traditional navigable water and therefore, a WOTUS subject to jurisdiction under Section 404 of the CWA.”
It goes on, “Section 10 of the Rivers and Harbors Act (RHA) of 1899 requires that a DA permit be obtained for certain structures or work in, over, under or affecting navigable waters violation the U.S. prior to conducting the work…The Pacific Ocean is subject to the ebb and flow of the tide and therefore, a navigable WOTUS subject to jurisdiction under Section 10 of the RHA.”
According to the notice of violation, the project in Tula required a permit from the US Army Corps of Engineers. “We reviewed our records and concluded a DA permit was nit obtained by DPW. Therefore the work is in violation of Section 10 of the RHA and Sections 494 and 301 of the CWA…”
The Army Corps said its intent is to resolve the matter amicably. It was pointed out that discharge of dredged and/or fill material into the ocean is unlawful, unless such discharge has been specifically authorized but the Secretary of the Army through a Corps permit. Violations carry substantial penalties including fines of just under $24,000 per violation with a maximum of $59,974 or by imprisonment of up to three years or both for any person who knowingly violates the Clean Water Act.
Meanwhile, the potential penalty for violation of the Rivers and Harbors Act is $6,270 per violation or by imprisonment of up to one year or both.
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DPW Director Voigt was told that the Corps is conducting an investigation to determine the appropriate course of action to resolve the violations. The Corps asked that the director provide certain information within 14 days of receipt of the Nov. 15th notice of violation. Voigt was also told that the Corps was forwarding a copy of the notice to the US Environmental Protection Agency and would determine whether to refer the unauthorized activity to the USEPA.
The notice mentions that during a meeting, that the Corps had with Governor Lemanu Peleti Mauga, he committed to ensuring that the Dept. of Public Works will stop work on the Tula project while the initial investigation is completed.
The federal agency warned Director Voigt that continuation of unauthorized work or start of new work without prior Dept. of the Army authorization, at other areas subject to Corps jurisdiction, shall be considered a knowing, repeat and flagrant violation of federal law.
