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The Regulatory Permit ProgramA Brief Guide from the Memphis District
Corps of Engineers Regulatory Program Water is one of our nation's most valuable resources. It is becoming increasingly important that we protect the quality of our inland waters and wetlands for the use and benefit of future generations. This brochure discusses the regulatory program of the U.S. Army Corps of Engineers: what it is, how it began, how it may affect you, and what you as a concerned American can do to help. If you are planning work in a river, stream, or wetland, a Corps permit may be required. The program provides for the consideration of all concerns of the public - environmental, social, and economic - in the Corps' decision-making process to either issue or deny permits. As part of its responsibility to protect water quality, the Corps of Engineers Section 404 permit program extends to many areas that were not regulated prior to the Clean Water Act. The purpose of the Section 404 program is to insure that the physical, biological, and chemical quality of our nation's water is protected from irresponsible and unregulated discharges of dredged or fill material that could permanently alter or destroy these valuable resources. History The U.S. Army Corps of Engineers has been involved in regulating certain activities in the nation's water since 1890. Until 1968, the primary thrust of the Corps' regulatory program was the protection of navigation. As a result of several new laws and judicial decisions, the program evolved to one that considers the full public interest by balancing the favorable impacts against the detrimental impacts. What Work Requires a Permit? Section 10 of the Rivers and Harbors Act of 1899 requires approval prior to the accomplishment of any work in or over navigable waters of the United States, or which affects the course, location, condition or capacity of such waters. Typical activities requiring Section 10 permits are:
Section 404 of the Clean Water Act requires approval prior to discharging dredged or fill material into the waters of the United States. Typical activities requiring Section 404 permits are:
Any person, firm, or agency (including Federal, state, and local government agencies) planning to work in navigable waters of the United States, or dump or place dredged or fill material in waters of the United States, must first obtain a permit from the Corps of Engineers. Permits, licenses, variances, or similar authorization may also be required by other Federal, state and local statutes. Waters of the United States Waters of the United States includes essentially all surface waters such as all navigable waters and their tributaries, all interstate waters and their tributaries, all wetlands adjacent to these waters, and all impoundments of these waters. "Wetlands" are areas characterized by growth of wetland vegetation (bulrush, cattails, rushes, sedges, willows, pickleweed, andiodine bush) where the soil is saturated during a portion of the growing season or the surface is flooded during some part of most years. Wetlands generally include swamps, marshes, bogs, and similar areas. The Corps' provides a brochure on Recognizing Wetlands. The landward regulatory limit for non-tidal waters (in the absence of adjacent wetlands) is the ordinary high water mark. The ordinary high water mark is the line on the shores established by the fluctuations of water and indicated by physical characteristics such as:
Navigable waters are defined as waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate or foreign commerce up to the head of navigation. Section 10 and/or Section 404 permits are required for construction activities in these waters. A complete list is available in the District Office. Pre-Application Consultation You are encouraged to contact the Corps of Engineers for proposed work in waters in your area. Exemptions, nationwide, regional and individual permit requirements will be reviewed. By discussing all information prior to application submittal, your application will be processed more efficiently. An official determination as to the need for a Department of the Army permit will be provided upon request. TYPES OF PERMITSIndividual PermitsIndividual permits are issued following a full public interest review of an individual application for a Department of the Army permit. A public notice is distributed to all known interested persons. After evaluating all comments and information received, final decision on the application is made. The permit decision is generally based on the outcome of a public interest balancing process where the benefits of the project are balanced against the detriments. A permit will be granted unless the proposal is found to be contrary to the public interest. Processing time usually takes 60 to 120 days unless a public hearing is required or an environmental statement must be prepared. To apply for an individual permit, an application form must be completed. This application is available from all regulatory offices. Nationwide Permits A nationwide permit is a form of general permit which authorizes a category of activities throughout the nation. These permits are valid only if the conditions applicable to the permits are met. If the conditions cannot be met, a regional or individual permit will be required. Summaries of the nationwide permits are available. A few of the nationwide permits are briefly listed here: Discharge of dredged or fill material in rivers, streams or lakes located above the headwaters or in closed basins. Use of this nationwide permit is not allowed when 10 acres or more of waters of the United States, including wetlands, are filled, flooded, excavated or drained as a result of the project. Discharges affecting 1 to 10 acres require advanced written notification to the District Engineer. Headwaters means the point where the average annual stream flow is 5 cubic feet per second (cfs). For an intermittent stream, the headwater point is where the stream flows at or above 5 cfs 50 percent of the time. Closed basins involve waters that are not part of a tributary system to interstate waters or navigable waters of the United States. Repair, rehabilitation, or replacement of a structure or fill which was previously authorized and currently serviceable. The structure or fill must not be significantly changed. Utility lines placed across a waterway. Discharge of bedding and backfill material is permitted if bottom contours are not changed. Single projects of less than 10 cubic yards of fill. Piecemeal work is not authorized. Bank stabilization projects less than 500 feet long containing less than an average of one cubic yard of material per running foot. The activity must be necessary for erosion protection and may not exceed the minimum amount needed for erosion protection. Fill is not to be placed in wetland areas or in a manner that impairs water flow. Materials free of waste metal products and unsightly debris must be used and the activity must be a single, complete project. Concrete poured into tightly sealed forms or cells if the concrete is a structural member not otherwise regulated. Minor road crossing fills (temporary or permanent) that place less than 200 cubic yards or fill below the ordinary high water mark. The crossing must be bridged or culverted to prevent restriction of high flows. The fill placed in waters of the US is limited to no more than one-third of an acre. Regional Permits Regional permits are issued by the District Engineer for a general category of activities when
Contact the District Regulatory office in your area for information regarding regional permits. You Can Help The understanding and support of the American people is vital to the success of this program. To protect our nation's water resources and assure their use and enjoyment for future generations, we must all join this vital effort. We ask your help in "passing the word" to others concerning the permit requirements outlined in this brochure and solicit your views and comments on better ways of attaining the goals of this program. Your comments, questions, and suggestions should be directed to one of our regulatory offices. For additional information or to apply for a permit, please contact one of our Regulatory Offices.
This page last updated: 10/30/06 |
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