Authority for the Regulatory Program
The US Army Corps of Engineers has been regulating activities in the nation's waters since 1890. Until the 1960's the primary purpose of the regulatory program was to protect navigation. Since then, as a result of laws and court decisions, the program has been broadened so that it now considers the full public interest for both the protection and utilization of water resources.
The regulatory authorities and responsibilities of the Corps of Engineers are based on the following laws:
- Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits the obstruction or alteration of navigable waters of the United States without a permit from the Corps of Engineers.
- Section 404 of the Clean Water Act (33 U.S.C. 1344). Section 301 of this Act prohibits the discharge of dredged or fill material into waters of the United States without a permit from the Corps of Engineers.
- Section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) authorizes the Corps of Engineers to issue permits for the transportation of dredged material for the purpose of dumping it into ocean waters.
Other laws may also affect the processing of applications for Corps of Engineers permits. Among these are the National Environmental Policy Act, the Coastal Zone Management Act, the Fish and Wildlife Coordination Act, the Endangered Species Act, the National Historic Preservation Act, the Deepwater Port Act, the Federal Power Act, the Marine Mammal Protection Act, the Wild and Scenic Rivers Act, and the National Fishing Enhancement Act of 1984.
Explanation of Some Commonly Used Terms
Certain terms which are closely associated with the regulatory program are explained briefly in this section. If you need more detailed definitions, refer to the Code of Federal Regulations (33 CFR Parts 320 through 330) or contact a Corps district regulatory office.
Activity(ies) as sued in this pamphlet includes structures (for example a pier, wharf, bulkhead, or jetty) and work (which includes dredging, disposal of dredged material, filling, excavation or other modification of a navigable water of the United States).
Navigable Waters of the United States are those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or have been used in the past or may be susceptible to use to transport interstate or foreign commerce. These are waters that are navigable in the traditional sense where permits are required for certain activities pursuant to Section 10 of the Rivers and Harbors Act. This term should not be confused with the term waters of the United States below.
Waters of the United States is a broader term than navigable waters of the United States defined above. Included are adjacent wetlands and tributaries to navigable waters of the United States and other waters where the degradation or destruction of which could affect interstate or foreign commerce. These are the waters where permits are required for the discharge of dredged or fill material pursuant to Section 404 of the Clean Water Act.
Pre-application Consultation is one or more meetings between members of the district engineer's staff and an applicant and his agent or his consultant. A pre-application consultation is usually related to applications for major activities and may involve discussion of alternatives, environmental documents, National Environmental Policy Act procedures, and development of the scope of the data required when an environmental impact statement is required.
Public Hearings may be held to acquire information and give the public the opportunity to present views and opinions. The Corps may hold a hearing or participate in joint public hearings with other Federal or state agencies. The district engineer may specify in the public notice that a hearing will be held. In addition, any person may request in writing during the comment period that a hearing be held. Specific reasons must be given as to the need for a hearing. The district engineer may attempt to resolve the issue informally or he may set the date for a public hearing. Hearings are held at times and places that are convenient for the interested public. Very few applications involve a public hearing.
The Public Interest Review is the term which refers to the evaluation of a proposed activity to determine probable impacts. Expected benefits are balanced against reasonably foreseeable detriments. All relevant factors are weighed. Corps policy is to provide applicants with a timely and carefully weighed decision which reflects the public interest.
Public Notice is the primary method of advising interested public agencies and private parties of the proposed activity and of soliciting comments and information necessary to evaluate the probable impact on the public interest. Upon request, anyone's name will be added to the distribution list to receive public notices.
Waterbody is a river, creek, stream, lake, pool, bay, wetland, marsh, swamp, tidal flat, ocean, or other water area.
Questions That Are Frequently Asked
Various questions are often asked about the regulatory program. It is hoped that these answers will help you to understand the program better.
Q. When should I apply for a Corps permit?
A. Since two to three months is normally required to process a routine application involving a public notice, you should apply as early as possible to be sure you have all required approvals before your planned commencement date. For a large or complex activity that may take longer, it is often helpful to have a "pre-application consultation" or informal meeting with the Corps during the early planning phase of your project. You may receive helpful information at this point which could prevent delays later. When in doubt as to whether a permit may be required or what you need to do, don't hesitate to call a district regulatory office.
Q. I have obtained permits from local and state governments. Why do I have to get a permit from the Corps of Engineers?
A. It is possible you may not have to obtain an individual permit, depending on the type or location of work. The Corps has many general permits which authorize minor activities without the need for individual processing. Check with your Corps district regulatory office for information on general permits. When a general permit does not apply, you may still be required to obtain an individual permit.
Q. What will happen if I do work without getting a permit from the Corps?
A. Performing unauthorized work in waters of the United States or failure to comply with the terms of a valid permit can have serious consequences. You would be in violation of Federal law and could face stiff penalties, including fines and/or requirements to restore the area.
Enforcement is an important part of the Corps regulatory program. Corps surveillance and monitoring activities are often aided by various agencies, groups, and individuals, who report suspected violations. When in doubt as to whether a planned activity needs a permit, contact the nearest district regulatory office. It could save a lot of unnecessary trouble later.
Q. How can I obtain further information about permit requirements?
A. Information about the regulatory program is available from any Corps district regulatory office. Information may also be obtained from the water resource agency in your state.
Q. Why should I waster my time and yours by applying for a permit when you probably won't let me do the work anyway?
A. Nationwide, only three percent of all requests for permits are denied. Those few applicants who have been denied permits usually have refused to change the design, timing, or location of the proposed activity. When a permit is denied, an applicant may redesign the project and submit a new application. To avoid unnecessary delays pre-application conferences, particularly for applications for major activities, are recommended. The Corps will endeavor to give you helpful information, including factors which will be considered during the public interest review, and alternatives to consider that may prove to be useful in designing a project.
Q. What is a wetland and what is its value?
A. Wetlands are areas that are periodically or permanently inundated by surface or ground water and support vegetation adapted for life in saturated soil. Wetlands include swamps, marshes, bogs and similar areas. A significant natural resource, wetlands serve important functions relating to fish and wildlife; food chain production; habitat; nesting; spawning; rearing and resting sites for aquatic and land species; protection of other areas from wave action and erosion; storage areas for storm and flood waters; natural recharge areas where ground and surface water are interconnected; and natural water filtration and purification functions.
Although individual alterations of wetlands may constitute a minor change, the cumulative effect of numerous changes often results in major damage to wetland resources. The review of applications for alteration of wetlands will include consideration of whether the proposed activity is dependent upon being located in an aquatic environment.
Q. How can I design my project to eliminate the need for a Corps permit?
A. If your activity is located in an area of tidal waters, the best way to avoid the need for a permit is to select a site that is above the high tide line and avoids wetlands or other waterbodies. in the vicinity of fresh water, stay above ordinary high water and avoid wetlands adjacent to the stream or lake. Also, it is possible that your activity is exempt and does not need a Corps permit or that it has been authorized by a nationwide or regional general permit. So, before you build, dredge or fill, contact the Corps district regulatory office in your area for specific information about location, exemptions, and regional and nationwide general permits.
Three types of drawings - Vicinity, Plan, and Elevation - are required to accurately depict activities.
Submit one original, or good quality copy, of all drawings on 8½ X 11 inch white paper (tracing cloth or film may be used). Submit the fewest number of sheets necessary to adequately show the proposed activity. Drawings should be prepared in accordance with the general format of the samples, using block style lettering. Each page should have a title block. See check list below. Drawings do not have to be prepared by an engineer, but professional assistance may become necessary if the project is large or complex.
Leave a 1-inch margin at the top edge of each sheet for purposes of reproduction and binding.
In the title block of each sheet of drawings identify the proposed activity and include the name of the body of water; river mile (if applicable); name of county and state; name of applicant; number of the sheet and total number of sheets in set; and date the drawing was prepared.
Since drawings must be reproduced, use heavy dark lines. Color shading cannot be used; however, dot shading, hatching, or similar graphic symbols may be used to clarify line drawings.
The vicinity map you provide will be printed in any public notice that is issued and used by the Corps of Engineers and other reviewing agencies to locate the site of the proposed activity. You may use an existing road map or US Geological Survey topographic (scale 1:24,000) as the vicinity map. Please include sufficient details to simplify locating the site from both the waterbody and from land. Identify the source of the map or chart from which the vicinity map was taken and, if not already shown, add the following:
- location of activity site (draw an arrow showing the exact location of the site on the map).
- latitude, longitude, river mile, if known, and/or other information that coincides with Block 6 on the application form.
- name of waterbody and the name of the larger creek, river, by, etc., that the waterbody is immediately tributary to.
- names, descriptions and location of landmarks.
- name of all applicable political (county, parish, borough, town, city, etc.) jurisdictions
- name of and distance to nearest town, community, or other identifying locations
- names or numbers of all roads in the vicinity of the site.
- north arrow.
The plan view shows the proposed activity as if you were looking straight down on it from above. your plan view should clearly show the following:
- Name of waterbody (river, creek, lake, wetland, etc.) and river mile (if known) at location of activity.
- Existing shorelines.
- Mean high and mean low water lines and maximum (spring) high tide line in tidal areas.
- Ordinary high water line and ordinary low water line if the proposed activity is located on a non-tidal waterbody.
- Average water depths around the activity.
- Dimensions of the activity and distance it extends from the high water line into the water.
- Distances to nearby Federal projects, if applicable.
- Distance between proposed activity and navigation channel, where applicable.
- Location of structures, if any, in navigable waters immediately adjacent to the proposed activity.
- Location of any wetlands (marshes, swamps, tidal flats, etc.)
- North arrow.
If dredged material is involved, you must describe the type of material, number of cubic yards, method of handling, and the location of fill and spoil disposal area. The drawing should show proposed retention levees, weirs, and/or other means for retaining hydraulically placed materials.
Mark the drawing to indicate previously completed portions of the activity.
Elevation and/or Cross Section View
The elevation and/or cross section view is a scale drawing that shows the side, front, or rear of the proposed activity. If a section view is shown, it represents the proposed structure as it would appear if cut internally for display. Your elevation should clearly show the following:
- Water elevations as shown in the plan view.
- Water depth at waterward face of proposed activity or, if dredging is proposed, dredging and estimated disposal grades.
- Dimensions from mean high water line (in tidal waters) of proposed fill or float, or high tide line for pile supported platform. Describe any structures to be built on the platform.
- Cross section of excavation or fill, including approximate side slopes.
- Graphic or numerical scale.
- Principal dimensions of the activity.
Notes on Drawings*
- Names of adjacent property owners who may be affected. Complete names and addresses should be shown in Block 5 on ENG Form 4345.
- Legal property description: Number, name of subdivision, block, and lot number. Section, Township, and Range (if applicable) from plot, deed, or tax assessment.
- Photographs of the site of the proposed activity are not required; however, pictures are helpful and may be submitted as part of any application.
- While illustrations need not be professional (many small, private project illustrations are prepared by hand), they should be clear, accurate, and contain all necessary information.
Names of adjacent property owners who may be affected. Complete names and addresses should be shown in Block 5 on ENG Form 4345.
* Drawings should be as clear and simple as possible (i.e., not too "busy").