Full document / COSOC-W-86-002 - the National Sea Grant Library

occurs because a negligent Inspection Is not In compliance with the
terms and conditions of the permit.
There are certain risks involved in construction and maintenance stages
that should be considered in planning a reef. The area Involved and
the type of material used must be matched so that the materials are
suitable, a requirement of the NFEA. Materials must also be free of
pollutants in order to meet the suitability requirement.
If a state or one of Its political subdivisions (a county or
municipality) is the permittee, it may be able to assert the doctrine
of sovereign immunity. The immunity, if applicable, is absolute and
will operate to defeat the claim of the Injured party. States are
generally Immune from all types of negligence actions, although state
officials have only a limited privilege of individual immunity. In the
typical reef scenario, Individual official actions can be divided into
those that arc discretionary in nature and those that are ministerial.
Discretionary decisions are normally covered by Immunity, while
nlnlsterlal actions are not. Discretionary decisions would Include the
initial decision to construct a reef and the choice of location and
materials. Ministerial actions would Include the placement of the
materials and the maintenance of the reef, including negligent
inspections.
The Immunity of a county or municipality of a state is derivative, and
therefore is not as strong as the state's Immunity. Sovereign immunity
can be explained by characterizing the actions of such entities as
governmental or proprietary. Governmental actions are generally those
considered to be necessary to the public welfare, while proprietary
actions are those not actually necessary, even though they do benefit
the public. An artificial reef would fall in the latter category.
Thus, in those Instances where a permittee is not protected by the
provision concerning actions required to bo undertaken by the permit,
normal rules of negligence apply. Sovereign inounlty is one defense
that may be available, a strong defense In the case of a state as the
permittee, but a weaker possibility when a county or city is the
permittee.
603