Firearms at Army Corps Water Resource Projects: Proposed Legislation and Issues in the 113th Congress
Released: 2015-03-16T00:00:00

Current and Proposed Corps Firearms Policy

The U.S. Army Corps of Engineers manages numerous water resource projects, such as dams and locks, across the United States. Many of these projects include facilities critical to managing floodwaters, supporting navigation, and producing hydropower. Many of these projects serve multiple purposes, including as sites popular for multiple kinds of recreation. Current Corps regulations prohibit possession of loaded firearms by private individuals at areas of Corps projects that are open to the public unless they are used for hunting in areas that are open to hunting or for shooting at authorized shooting ranges. The regulation applies at Corps projects regardless of their location in states allowing open or concealed carry of loaded firearms. Corps firearms regulations and their enforcement are the subject of ongoing lawsuits.

Legislation in the 113 th Congress was introduced to ban promulgation and enforcement of regulations that prohibit private individuals from possessing firearms, including assembled or functional firearms, at Corps projects. The proposed language would have eliminated the agency's ability to enforce or promulgate regulations on restricting firearms in project areas that are open to the public if possession is in compliance with state law. However, individuals still would have been prohibited from possessing firearms at a "federal facility" under Title 18, Section 930, of the United States Code . This report examines the Corps' current regulations, related legislative proposals, and firearms-related safety and security issues at Corps projects. The report also compares the Corps' authorities and regulations with authorities and regulations of the Department of the Interior's (DOI's) Bureau of Reclamation, which also operates federal water resources projects with significant recreation.

The Corps can issue firearms warnings or citations. During the five years FY2008 through FY2012, warnings for firearms, explosives, other weapons, and fireworks averaged 33 annually from an average annual total of 22,207 warnings; similar citations averaged 21 annually from an annual average of 2,195.

Public Use and Access at Corps Projects

Most Corps water resources projects are constructed primarily to produce economic and public safety benefits through promoting navigation and reducing exposure to flood waters. Congress, in multiple laws, also has provided the Corps with authorities to support other activities at its projects. Consequently, Corps projects such as dams are often multipurpose. That is, they produce hydroelectric power and store water for municipal, industrial, and agricultural use as well as provide navigation and flood damage reduction. Congress also gave the Corps authority to support some recreation at its projects.

In carrying out its water resources mission, the Corps is responsible for 8.8 million acres of Corps fee-owned land; the agency manages 422 lake and river projects with recreation, 92,844 campsites, 7,700 miles of trails, and 3,544 boat launches. Corps projects provide 33% of U.S. freshwater available for lake fishing. Roughly half of Corps fee-owned lands are open for hunting, and there are a small number of authorized shooting ranges. Corps projects receive 370 million recreational visits annually, making its projects the most visited of any single federal agency's sites; that is, the Corps hosts 20% of the visits to federal recreation areas on 2% of the federal lands. One reason for the high visitation is close proximity to population centers: 90% of Corps recreation areas are within 50 miles of a metropolitan area. Examples of Corps projects with significant public use are reservoirs at multipurpose dams (e.g., Lake Lanier in Georgia, Lake Texoma in Oklahoma and Texas, and Missouri River mainstem dams) and navigation locks.

Current Corps Firearms and Hunting Regulations

Currently, Title 36, Section 327, of the Code of Federal Regulations sets out the regulations for public use of Corps projects. Section 327.13 prohibits private (i.e., non-law enforcement) individuals from possessing loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons at Corps-administered water resource projects, unless they are being used

for hunting (with devices unloaded when being transported to hunting sites), at authorized shooting ranges, or with written permission of the Corps District Commander.

Under these regulations, the firearms are to remain unloaded in recreation areas such as campgrounds. The regulation applies at projects regardless of their location in states allowing open or concealed carry of loaded firearms. The Corps enforces the regulations on land and waters that it owns in fee-simple status; it does not enforce them on floodways under easement or on levees that are not on Corps fee-owned land.

Corps regulations allow loaded firearms only for hunting purposes in areas open to hunting or at designated shooting areas. The regulations for hunting at Corps projects are set out in Title 36, Section 327.8, of the Code of Federal Regulations , which states that "hunting is permitted except in areas and during periods where prohibited by the District Commander" and "all applicable Federal, State and local laws regulating these activities apply on project lands and waters, and shall be regulated by authorized enforcement officials as prescribed in 327.26." Hunting is often restricted to those project areas designated for wildlife purposes. While state hunting and wildlife laws apply in these areas, Corps rangers do not enforce these state laws.

Of its 8.8 million acres of Corps fee-owned land, roughly half is open to hunting. The other half is closed to hunting, often due to its close proximity to developed or urban areas. That is, roughly 4.4 million acres of Corps land is closed to hunting but open to the public; on this land, Corps regulations restrict loaded firearms but allow unloaded firearms. On the roughly 4.4 million acres of Corps land open to hunting, Corps regulations restrict loaded firearms to use in hunting or shooting at designated ranges.

Corps regulations currently do not directly address discharge of firearms at Corps projects; that is, the regulations are related to possession, not firearm use. Visitors, however, arguably would be in violation of the regulation (36 C.F.R. §327.13) if they were to possess (or discharge) a loaded firearm unless they were hunting or using the firearm at an authorized shooting range.

Under Title 16, Section 460d, of the United States Code and its implementing regulations in Title 36, Section 327.25, of the Code of Federal Regulations , persons designated by the District Commander (i.e., Corps rangers) can write citations for violations of the recreation regulations. The citation can require "any person charged with the violation to appear before the United States Magistrate within whose jurisdiction the affected water resources development projects is located"; the violation "may be punished by a fine of not more than $5,000 or imprisonment for not more than six months or both."

Proposed Corps Firearms Legislation

Legislation proposed in the 113 th Congress (e.g., H.R. 2046 , the Recreational Lands Self-Defense Act, H.R. 3590 , Sportsmen's Heritage and Recreational Enhancement Act of 2013, and Section 103 of S. 1335 , the Sportsmen's Act) would have banned the Secretary of the Army from promulgating or enforcing regulations that prohibit individuals from possessing firearms (including assembled or functional firearms) at Corps projects. The proposed language would have required that possession comply with state law and that the individual not be otherwise prohibited from possessing firearms.

Enactment of the legislative language proposed in the 113 th Congress effectively would have allowed private individuals to carry loaded and/or concealed firearms at all Corps projects consistent with state law. However, individuals still would have been prohibited from possessing a firearm at a "federal facility" as identified under Title 18, Section 930, of the United States Code and in project areas restricted to the public pursuant to Title 16, Section 460d, of the United States Code . Individuals would have been responsible for knowing and complying with all applicable concealed carry laws of the state or states in which the water resources development project is located. The legislation would not have distinguished between handguns and other firearms, such as long guns (rifles and shotguns). The proposed legislation was similar to language enacted for the Department of the Interior in 2009 under Section 512 of P.L. 111-24 , the Credit Card Accountability Responsibility and Disclosure Act of 2009. P.L. 111-24 made it legal for individuals to possess firearms at National Park Service (NPS) and National Wildlife Refuge System (NWRS) units.

Supporters of the proposed legislation saw enactment as part of a larger, ongoing effort to improve the consistency of laws and regulations concerning firearms on federally managed lands. They also saw the proposed legislation as providing for consistent treatment of open and concealed firearms possession within a state, providing for recreational shooting and self-defense, and protecting the right to bear arms under the Second Amendment of the Constitution. Other stakeholders raised concerns that the proposed legislation ignored implementation challenges at Corps projects that are not generally faced at NPS and NWRS units (e.g., presence of critical facilities, limited law enforcement authority) and that enactment could have produced unintended public safety and infrastructure security issues. The Administration opposed the Corps firearms regulation prohibition provision in its Statement of Administration Policy for H.R. 3590 on February 3, 2014.

Corps Firearms Policy and Related Security and Safety Issues

Public Access to Critical Facilities and Public Safety

The Corps and the U.S. Department of Homeland Security regard some Corps infrastructure as critical to homeland security and the economy; these structures include multipurpose dams and major navigation locks. Many of these facilities require additional protection measures in times of heightened homeland security concerns. Currently, public access and recreation is allowed at or near many of these structures. At issue is whether enactment of legislation similar to the proposals in the 113 th Congress may complicate or hamper the Corps' ability to maintain the security of these facilities given the Corps' limited law enforcement authority.

Legislation considered in the 113 th Congress would not have explicitly provided the Corps with authority to restrict firearms at Corps facilities that are open to the public. While not explicitly providing the Corps with authority to restrict firearms at its facilities, the proposed prohibition against enforcement of Title 36, Section 327.0, of the Code of Federal Regulations would not have altered the more general existing federal law (18 U.S.C. §930) that prohibits possession of firearms at a "federal facility." A "federal facility" is defined as "a building or part thereof owned or leased by the federal government, where Federal employees are regularly present for the purpose of performing their official duties." Which Corps facilities that are open to the public, such as recreation and improved campground facilities, locks, exposed hydropower elements, and levees on Corps fee-owned land, may qualify under this "federal facility" definition remains an open question.

The Corps' authority to restrict public access (16 U.S.C. §460d) also would appear to have remained unchanged under the proposed legislation. Existing Corps regulations (36 C.F.R. §327.12) authorize the District Commander to "close or restrict the use of a project or portion of a project when necessitated," including for reasons of public safety. If a ban on promulgating or enforcing Corps firearms regulations were enacted, the Corps may need to review safety and security vulnerabilities at its projects and may restrict public access in more areas if it is prohibited from promulgating rules that prohibit individuals from carrying loaded firearms.

Law Enforcement Authority15

Although Congress has given the Corps authority to regulate conduct at its projects, it has not provided the Corps with authority to perform many typical law enforcement functions, including the ability of rangers to carry firearms, make arrests, and execute search warrants. While some stakeholders may view the ability to possess loaded firearms as expanding the law enforcement challenge at Corps projects, others view the limitations on the Corps' law enforcement authorities as a reason for private individuals to be able to carry loaded firearms for self-defense.

The Corps' limited law enforcement authority contrasts with the authority Congress has explicitly granted to the Department of the Interior. DOI has the authority to designate officers with the full range of law enforcement functions. Thus, when P.L. 111-24 made it legal for individuals to possess firearms at NPS and NWRS units, public safety and security at those sites could be enforced by personnel with the full range of law enforcement functions, including the authority to carry arms, make arrests without warrants, execute warrants, and conduct investigations.

In contrast, Congress has limited enforcement by Corps rangers to issuing citations for violations of regulations. Corps rangers principally have land management functions with duties related to recreation and natural resources management (e.g., fisheries and wildlife biologist and forester).

Full police power at Corps projects, including the power to enforce state and local laws and place persons under arrest, is exercised solely by state and local authorities. Consequently, the Corps relies on the assistance and cooperation of local and state law enforcement through cooperative agreement or contracts during peak visitation periods for maintaining public safety. The Corps' authority for these law enforcement contracts (42 U.S.C §1962d-5d) is limited to $10 million per year nationally. Current Corps authority does not allow the agency to authorize state or local authorities to enforce federal law or regulations at Corps projects.

The legislative proposals from the 113 th Congress, if enacted, would have made no change to law enforcement authorities for the Corps. That is, no armed federal law enforcement authorities responsible for maintaining public safety and security would have been at Corps projects, a continuation of the status quo. Corps rangers would have remained unarmed; volunteers and those working as concessionaire contractors at Corps projects also would not have been allowed to carry firearms. No public information is available on whether additional law enforcement assistance and funding to obtain this assistance would have been needed for the Corps to maintain multiple uses of its projects, public safety, and infrastructure security under the proposed firearm legislation.

Comparison with Reclamation Firearms Policies

Like Corps projects, many of DOI's Bureau of Reclamation water resources projects are sites of both significant infrastructure and public recreation and access. The proposed legislation discussed in this report only would have affected Corps firearms regulations. Information on Reclamation authorities and regulations related to firearms presented herein is provided to illustrate how the other federal agency with large water resource projects manages firearms on its lands.

Currently, Reclamation facilities are governed differently than those of the Corps with respect to the regulation of firearms and law enforcement. Table 1 summarizes Reclamation's authorities and regulations, the Corps' authorities and regulations, and changes if the proposals considered in the 113 th Congress had been enacted. The table also includes related public access and law enforcement authorities for Corps and Reclamation water resources projects.

Reclamation regulations (43 C.F.R. §423.30) allow firearm possession in compliance with federal, state, and local law on Reclamation lands and waterbodies, with two exceptions:

possession is not permitted at or in a Reclamation facility, and prohibitions and regulations may apply in designated special-use areas.

Unlike the Corps' current regulations, these Reclamation regulations distinguish between facilities, lands, and waterbodies. At Reclamation facilities (e.g., buildings, dams, electric power facilities, switchyards, recreation facilities, fish and wildlife facilities), firearms are prohibited. At Reclamation lands and waterbodies, firearms are allowed to the extent provided by applicable federal, state, and local law. Therefore, the possession of loaded firearms by private individuals is allowed at most of a Reclamation project's land and water footprint, whereas current Corps regulations allow such possession only in areas designated for hunting and shooting at Corps projects.

Reclamation regulations (43 C.F.R. §423.30(b)) restrict discharge of a weapon unless for hunting or at an authorized shooting or archery range; discharge must also be in compliance with federal, state, and local law. As previously noted, Corps regulations do not explicitly address the discharge of weapons. Reclamation regulations (43 C.F.R. §423.32) permit hunting on Reclamation lands and waterbodies in accordance with federal, state, and local laws unless the area has been closed for public use or has been designated as a special-use area. In November 2001, in Section 1 of the Reclamation Recreation Management Act of 1992 ( P.L. 107-69 ), Congress provided criminal penalties for violation of regulations to maintain law and order and protect persons and property at Reclamation projects and lands.

Law enforcement at Reclamation projects can be provided by DOI armed law enforcement officers or by other law enforcement personnel through cooperative agreement or contract. Reclamation and DOI utilize a variety of personnel for security and public safety at Reclamation projects: federal special agents provided through DOI's law enforcement authority and uniformed guards acting as special policemen with law enforcement authority, an armed security response task force that does not have law enforcement authority, armed state and local law enforcement personnel, and personnel from private security companies for both armed and unarmed functions. The vast majority of criminal offenses occurring on Reclamation property, nonetheless, are handled by state police, sheriff's offices, or local law enforcement. Most law enforcement functions at Corps projects also are provided by state and local law enforcement authorities, but the Corps does not have the option of its own department's or agency's armed federal law enforcement personnel. At Reclamation projects (in some contrast to NPS and NWRS units, which have federal personnel with more law enforcement functions), Reclamation rangers function much like Corps rangers; both do not have significant law enforcement authority or carry firearms.

Conclusion

Many Corps projects function as popular recreation sites in addition to providing navigation, flood damage reduction, hydropower, and other benefits. Current Corps regulations prohibit possession of loaded firearms by private individuals at Corps projects unless for hunting or at designated shooting ranges. The 113 th Congress considered legislation that would have eliminated the Secretary of the Army's ability to enforce or promulgate regulations restricting the possession of loaded firearms in areas of its projects that are open to the public, as long as an individual is lawfully permitted to possess a firearm and such possession is in compliance with state law. Possession of firearms, however, would have remained prohibited at a "federal facility" consistent with Title 18, Section 930, of the United States Code . That is, if the proposed language had been enacted, the Corps would have been prohibited from promulgating or enforcing restrictions on loaded firearms on roughly 4.4 million acres of Corps fee-owned lands that are open to the public but currently closed for hunting. For the roughly 4.4 million acres that are open to hunting or designated as shooting ranges, the proposed legislation, if enacted, apparently would have essentially lifted the restriction that possession of a loaded firearms be limited for use in hunting or for shooting at designated shooting ranges. That is, under the proposed legislation, consistent with state law and firearms restrictions in Title 18, Section 930, of the United States Code , loaded firearms would have been allowed at all Corps project areas open to the public.