The Department of the Army Regulatory Program is one of the oldest in the federal government. Initially it served to protect and maintain the navigable capacity of the nation's waters. Time, changing public needs, evolving policy, case law and new statutory mandates have changed the program, adding to its breadth, complexity and authority.
The legislative origins of the Regulatory Program are the Rivers and Harbors Acts of 1890 (superseded) and 1899 (33 U.S.C. 401, et seq.). Various sections establish permit requirements to prevent unauthorized obstruction or alteration of any navigable water of the United States. The most frequently exercised authority, granted to the Secretary of the Army, is contained in Section 10 (33 U.S.C. 403), which covers construction, excavation or deposition of materials in, over or under navigable waters, or any work that would affect the course, location, condition or capacity of those waters. Other permit authorities in the act are Section 9 for dams and dikes, Section 13 for refuse disposal, and Section 14 for temporary occupation of public works built by the United States (e.g., seawall, bulkhead, jetty, dike, levee, wharf or pier). Various pieces of legislation have modified these authorities but not removed them.
In 1972, amendments to the Federal Water Pollution Control Act added what is commonly called Section 404 Authority (33 U.S.C. 1344) to the program. The Secretary of the Army, acting through the Chief of Engineers, is authorized to issue permits for the discharge of dredged or fill material into waters of the United States. The public is notified and given the opportunity to comment and/or request a public hearing. Selection of discharge sites must be in accordance with guidelines developed by the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army; these guidelines are known as the 404(b)(1) Guidelines. The discharge of pollutants other than dredged or fill material into waters of the U. S. is regulated under Section 402 of the Act, which supersedes Section 13 of the Rivers and Harbors Act. The Federal Water Pollution Control Act was further amended in 1977 and given the common name of "Clean Water Act." It was amended again in 1987 to modify criminal and civil penalty provisions and to add an administrative penalty provision.
Enactment of the Marine Research and Sanctuaries Act in 1972 authorized the Secretary of the Army, acting through the Chief of Engineers, to issue permits for the transportation of dredged material to be dumped in the ocean. This authority also carries with it the requirement to notify the public and provide them with the opportunity to comment and/or request a public hearing. Disposal sites for such discharges are selected in accordance with criteria developed by the EPA in consultation with the Secretary of the Army.
The geographic jurisdiction of the Rivers and Harbors Act of 1899 includes all navigable waters of the United States, which are defined as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce." This jurisdiction extends seaward to include all ocean waters within a zone three nautical miles from the coast line (the "territorial seas").
Limited authorities extend across the outer continental shelf for artificial islands, installations and other devices (see 43 U.S.C. 1333 (e)). Activities requiring Section 10 permits include structures (e.g., piers, wharfs, breakwaters, bulkheads, jetties, weirs and transmission lines), work (e.g., dredging or disposal of dredged material), excavation, filling or other modifications to the navigable waters of the United States.
The Clean Water Act uses the term "navigable waters," which is defined in Section 502(7) as "waters of the United States, including the territorial seas." Thus, Section 404 jurisdiction is defined as encompassing Section 10 waters plus their tributaries and adjacent or abutting wetlands where the use, degradation or destruction of such waters could affect interstate or foreign commerce. Also included are such waters as lakes, mudflats, sand flats and sloughs.
Activities requiring Section 404 permits are limited to discharges of dredged or fill materials into waters of the United States, including wetlands. These discharges include return water from dredged material disposed of in uplands and generally any fill material (e.g., rock, sand and dirt) used for site development, roadways, erosion protection, etc.
The geographic scope of Section 103 of the Marine Protection Research and Sanctuaries Act of 1972 is those waters of the open seas lying seaward of the baseline from which the territorial sea is measured. Along coast lines this baseline is generally taken to be the low water line. Thus, there is jurisdictional overlap with the Clean Water Act. By interagency agreement with the U.S. Environmental Protection Agency (EPA), the discharge of dredged material in the territorial seas is regulated under Section 103 criteria rather than those developed for Section 404.
Delegation of Authority
The Corps’ permitting authorities, with specific exception of Section 9, have been delegated by the Secretary of the Army to the Chief of Engineers and his authorized representatives. Section 10 authority was formally delegated on May 24, 1971, with Section 404 and 103 authorities delegated on March 12, 1973. The Corps must consider the public interest when evaluating proposed work. Other applicable factors, such as the 404(b)(1) Guidelines and ocean dumping criteria, must also be met.
Delegated authority is subject to conditions that the Secretary of the Army or his representatives may impose. Division and district engineers are authorized to issue conditioned permits and to modify, suspend or revoke them. Division and district engineers also have authority to issue alternate types of permits, such as letters of permission and regional general permits, and in certain situations the delegated authority is limited.
The Corps of Engineers has a decentralized management philosophy. Regulatory Program management and administration is focused at the district level, with policy oversight at higher levels. The district engineer’s administrative regulations (33 CFR 320-332) have evolved to reflect added authorities, case law development, and public concerns. These regulations are developed through formal rule making procedures.
The district engineer has authority to make a final decision on a permit application in accordance with the procedures and authorities contained in the regulations. See the Appeals Section for additional information.
The individual permit is the basic form of authorization used by Corps districts. Processing such permits involves evaluation of individual, project-specific applications in what can be considered three steps: pre-application consultation (for major projects), formal project review, and decision making.
Pre-application consultation usually involves one or several meetings between an applicant, Corps district staff, interested resource agencies (federal, state, or local), and sometimes the interested public. The basic purpose of such meetings is to engage in informal discussions about a proposal before an applicant makes irreversible commitments of resources (funds, detailed designs, etc.). The process provides the applicant an opportunity to assess the viability of available alternatives, to discuss measures for reducing impacts to waters of the U.S., and to inform him of the factors the Corps must consider in its decision-making process.
Once a complete application is received, the formal review process begins. Corps districts operate under a project manager system where one individual is responsible for handling an application from receipt to final decision. The project manager prepares a public notice, evaluates the impacts of the project, considers all comments received, negotiates modifications to the project, and drafts appropriate documentation to support a recommended permit decision. The permit decision document includes a discussion of the environmental impacts of the project, the findings of the public interest review process, and any special evaluation required by the activity, such as compliance determinations with the Section 404(b)(1) Guidelines or ocean dumping criteria.
The Corps is required to consider the public interest when evaluating any permit application. This means we must consider the benefits and detriments of the proposed action on public resources, such as conservation, economics, aesthetics, wetlands, cultural values, navigation, fish and wildlife values, water supply, water quality, and any other factors judged important to the needs and welfare of the people. The following general criteria are considered in evaluating all applications:
- The relevant extent of public and private needs;
- Where unresolved conflicts of resource use exist, the practicability of using reasonable alternative locations and methods to accomplish project purposes; and
- The extent and permanence of the beneficial and/or detrimental effects the proposed project may have on public and private uses to which the area is suited.
No permit is granted if the proposal is found to be contrary to the public interest.
Alternate Forms of Army Permits
Alternate forms of authorization are used in certain prescribed situations. Letters of permission may be used where, in the opinion of the district engineer, the proposed work would be minor, not have significant individual or cumulative impact on environmental values, and should encounter no appreciable opposition. In such situations, the proposal is coordinated with all concerned fish and wildlife agencies and generally, adjacent property owners who might be affected by the proposal, but the public at large is not notified. However, the need to consider the public interest is central to the decision-making process on letters of permission.
Another form of authorization is the regional general permit. Regional general permits cover activities the Corps has identified as being substantially similar in nature and causing only minimal individual and cumulative environmental impacts. These permits may cover activities in a limited geographic area (e.g., county or state), a particular region of the country (e.g., group of contiguous states), or throughout the nation. Processing such permits closely parallels that of individual permits, with public notice, opportunity for hearing, and detailed decision documentation.
Another form of general permits are nationwide permits. Nationwide permits are issued by the U.S. Army Corps of Engineers commanding general through the Federal Register rulemaking process.
Public involvement plays a central role in the Corps' Regulatory Program. The primary tools used to interact with the public are the public notice and public hearing.
The public notice advises all interested parties of a proposed activity for which a permit is sought and solicits comments necessary to evaluate the probable beneficial and detrimental impacts on the public interest. Public notices on proposed projects always contain a statement that anyone commenting may request a public hearing.
Public hearings are held if comments raise substantial issues that cannot be resolved informally, and the Corps’ decisionmaker determines that information from such a hearing is needed to make a decision. Public notices are used to announce hearings. The public is also informed by notice on a monthly basis of permit decisions.
Any project on which an Environmental Impact Statement (EIS) will be prepared is subject to additional public involvement. The preparation of EISs is governed by regulations implementing the National Environmental Policy Act (NEPA). The first stage of EIS development is the scoping process, which is how substantive issues are identified for further study in the EIS. The NEPA scoping process begins with the publication of a Notice of Intent to prepare an EIS. The scoping process itself often involves face-to-face participation with the interested public.
The availability of the draft EIS is announced through public notice. It is the notice that is intended to solicit comments not only on the NEPA document but substantive comments on the proposal itself. Again, with these complex projects, the public may request a public hearing. The Corps decisionmaker may independently decide to hold a public hearing, and its announcement will be incorporated into the notice of availability of the NEPA document. The public is also informed of the availability of the final EIS, any EIS supplement, and the availability of the decision maker's record of decision.
Thus, a permit application requiring preparation of an EIS can involve five or more notices to the public during the review process.
Internal Decision Safeguards
The permit evaluation process contains many safeguards designed to ensure objectivity in the evaluation process.
Even before an application is formally submitted, such safeguards come into play, for example, in the pre-application consultation stage. Probably the single biggest safeguard of the Regulatory Program is the Corps’ public interest review, which also forms the main framework for overall evaluation of the project. This review requires the careful weighing of all public interest factors relevant to each particular action. Thus, one specific factor, such as economic benefits, cannot by itself force a specific decision, but rather the decision represents the net effect of balancing all factors, many of which are frequently in conflict.
The public interest review is used to evaluate applications under all authorities administered by the Corps. Additional evaluation criteria are used for specific authorities, for example: applications for fill in waters of the United States are also evaluated using the Section 404(b)(1) Guidelines developed by the Environmental Protection Agency (EPA) in conjunction with the Army.
These guidelines are heavily weighted toward preventing environmental degradation of waters of the United States and place additional constraints on Section 404 discharges. Likewise, ocean dumping permits are evaluated using special criteria developed by EPA in consultation with the Army. These criteria are also primarily aimed at preventing environmental degradation and set up stringent tests that must be passed before a Section 103 permit can be granted.
Although required for permit issuance, compliance with these authority-specific criteria is only a part of the public interest review. Therefore, projects that comply with the criteria may still be denied a permit if they are found to be contrary to the overall public interest.
External Decision Safeguards
Besides internal safeguards, a series of external safeguards work to maintain objectivity. One is the U.S. Environmental Protection Agency’s (EPA) so-called "veto" authority. EPA may prohibit or withdraw the specifications of a proposed disposal site if the EPA Administrator determines that discharges into the site will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. This authority also carries with it the requirement for notice and opportunity for public hearing. The EPA may invoke this authority at any time whether or not an application is pending.
Section 404(q) of the Clean Water Act requires the Department of the Army (DA) to enter into interagency agreements to minimize duplication, needless paperwork and delays in the Section 404 permit process. Current agreements allow EPA, the Department of Commerce, and the Department of the Interior to request higher level review within the DA when they disagree with a permit decision that is about to be made by the district engineer. Higher level review can only be requested when certain criteria are met and must be conducted within time limits specified in the agreements. Criteria include: insufficient coordination at the district level, development of significant new information, or the need for policy level review of nationally important issues. Honoring such requests is at the discretion of the Assistant Secretary of the Army for Civil Works.
State permitting and water quality certification requirements provide an additional safeguard to the Corps Regulatory Program. Section 401 of the Clean Water Act requires state certification or waiver of certification prior to issuance of a Section 404 permit.
Section 307 of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1458(c)), requires that the applicant certify the project is in compliance with an approved State Coastal Zone Management Program and that the State concurs with the applicant’s certification prior to the issuance of a Corps permit. The Corps' standard permit form contains a statement notifying the permittee that the federal permit does not remove any requirement for state or local permits. This has the effect of making the Corps' permit unusable without these additional authorizations. If the state or local permit is denied, the Corps permit is also denied.
In addition, Corps implementing regulations require district engineers evaluate applications for their potential to affect a variety of special interests (e.g., Indian reservation lands, historic properties, endangered species, and wild and scenic rivers).
Another form of external safeguard is legal challenge of a permit decision. Any member of the public may challenge in court a Corps decision to issue or deny a permit. Generally, such a challenge alleges failure to comply with procedural requirements, such as NEPA documentation, the 404(b)(1) Guidelines, or Corps permitting procedures regulations. For additional information see appeals section.
On average, individual permit decisions are made within 90 to 120 days from receipt of a complete application. General permits and nationwide permits typically take 30 to 45 days, and emergency permit decisions can be made in a matter of hours. Applications requiring environmental impact statements average about three years to process.
Procedures for enforcing Corps permitting authorities are found here.
The district engineer uses a variety of means to inspect activities in waters of the United States. Corps of Engineers employees are instructed to observe and report suspected unauthorized activities in waters of the United States and violations of issued permits. The Corps is often aided by members of the public and other interested federal, state and local agencies who report suspected violations.
When the district engineer becomes aware of an unauthorized activity in progress, he must first issue a cease and desist order and then begin an investigation of the activity to ascertain the facts through coordination with state and federal resource agencies. If the unauthorized activity has been completed, the district engineer will advise the responsible party of the discovery and begin an investigation. Following evaluation, the district engineer will formulate recommendations on the appropriate administrative course or legal action to be taken.
The district engineer's evaluation contains a determination of whether significant adverse impacts are occurring that would require expeditious corrective measures to protect life, property, or a significant public resource. Remedial measures can be administratively ordered, and a decision can be made on whether legal action is necessary. District engineers typically coordinate with state and federal resource agencies when deciding on an appropriate action. Further evaluation of the violation takes into consideration voluntary compliance with a request for remedial action. A permit is not required for restoration or other remedial action.
The Army will accept applications for after-the-fact permits for cases that do not require legal action and for which complete restoration has not been ordered. The full public interest review is deferred during the early stages of the enforcement process. A complete public interest review is conducted only if and when the district engineer accepts an application for an after-the-fact permit.
The laws that serve as the basis for the Corps Regulatory Program contain several enforcement provisions that provide for criminal, civil, and administrative penalties. While the Corps is solely responsible for the initiation of appropriate legal actions pursuant to enforcement provisions relating to its Section 10 authority, the responsibility for implementing those enforcement provisions relating to Section 404 is jointly shared by the Corps and Environmental Protection Agency. For this reason the Army has signed a Section 404 enforcement memorandum of agreement (MOA) with EPA to ensure that the most efficient use is made of available federal resources.
If a legal action is instituted against the person responsible for an unauthorized activity, an application for an after-the-fact permit cannot be accepted until final disposition of all judicial proceedings, including payment of all fees and completion of all work ordered by the court.
The Corps strives to reduce violations by educating and informing the public, implementing an aggressive general permit program, and conducting efficient and fair evaluation of individual permit applications.