Feds serve ASG with violation notice for unauthorized work at Tula

Pago Pago, AMERICAN SAMOA — The U.S. Army Corps of Engineers has served the American Samoa Government with a “Notice of Violation” over unauthorized activities involving the discharge of fill material into waters of the United States and the unauthorized work in navigable waters along the shoreline in the village of Tula.

The notice was served two months ago and details are outlined in a letter dated November 15, 2022 from Linda Speerstra, Chief of the US Corps Regulatory Office to Director of Public Works, Faleosina Voigt who was asked to make a submission by November 30, 2022.

It is unclear whether Voight was able to submit the required information as efforts to get comments were unsuccessful as of press time.

The letter was obtained by Samoa News.

Speerstra pointed out a meeting between Public Works and Lt Col Pevey and Gov Lemanu P. S Mauga to discuss the ongoing violation observed by U.S Army Corps of Engineers regulatory staff while conducting compliance visits in American Samoa during the period September 20- 22, 2022.

Speerstra said that during the meeting two months ago the Governor committed to ensuring that ASG’s Department of Public Works stopped work in Tula, while the initial investigation was being completed.

“Continuation of the unauthorized work in WOTUS (waters of the U.S) or commencement of new work in WOTUS without prior authorization at other areas subject to Corps jurisdiction shall be considered a knowing, repeat, and flagrant violation of Federal law.”

Speerstra cited section 404 of the Clean Water Act (CWA) requires that a Department of the Army (DA) permit be obtained for the placement or discharge of dredged and/or fill material into WOTUS, prior to conducting the work (33 U.S.C. § 1344).

“The activity described above required a permit from us. We reviewed our records and concluded a DA permit was not obtained by DPW. Therefore, the work is in violation of Section 10 of the RHA and Section 301 of the CWA (33 U.S.C. § 1311).”

Furthermore the Corps' intent is to resolve this matter amicably, she wrote.

“There can be substantial penalties for conducting unauthorized work in WOTUS.” Penalties can include fines of up to $23,990 per violation with a maximum of $59,974 or by imprisonment of up to three years, or both, for any person who knowingly violates Section 301 of the CWA.

“The potential penalties for violation pursuant to Section 12 of the RHA provides civil penalties up to $6,270 per violation or by imprisonment of up to one year, or both (33 U.S.C. § 555).

“The Corps is conducting an investigation to determine the appropriate course of action required to resolve this violation.”

The DPW was asked to provide information on the purpose of the work, the funding source(s) for implementation, and the name and contact information of the landowner where the construction activities occurred.

Also, a complete written project description, including methods for construction, the type of heavy construction equipment used, the location and size of any temporary construction stockpile areas and disposal sites (if applicable), among other things.

The director was also asked to provide the estimated area (in acres) of dredged and/ or fill materials discharged into WOTUS.

“The name, mailing address, email, and telephone number of the contractor performing the work; to scale drawings or engineering plans showing the extend and dimensions of the unauthorized placement of dredged and/ or fill materials into WOTUS relative to the high tide line.

“A list of best management practices, if any, that were deployed during the unauthorized discharge of dredged and/ or fill materials in WOTUS and work in navigable WOTUS.

“To ensure that all pertinent information is available for our evaluation and is included in the public record, you are invited to provide any other information, which you feel should be considered.

Speerstra added that she has requested input from other federal and local resource agencies on the effects of the activity on federally threatened and endangered species, special aquatic sites, water quality, essentials fish habitat, and historic properties.

“I am also requesting the agency's recommendations for initial corrective measures that may be necessary. 

“Further, in accordance with a Memorandum of Agreement between the Department of the Army and the U.S Environmental Protection Agency (USEPA) concerning federal enforcement of section 404 of the CWA, a copy of this notification is being sent to the EPA for review and coordination.

“Based on our preliminary investigation we will determine whether to refer this unauthorized activity to EPA.

“You will be notified whether EPA or the Corps will be the lead federal agency responsible for evaluating the unauthorized work and working with you from compliance with other Federal. Territorial, or local statutes, ordinances, or regulations which may affect this work.”