Regulations and Resources

Photo by Rebecca Manbeck

The U.S. Army Corps of Engineers Regulatory Program receives its authority from the following federal laws:

Section 10 of the Rivers & Harbors Act of 1899

Requires approval prior to the accomplishment of any work in or over navigable waters of the United States, or work which affects the course, location, condition or capacity of such waters. Projects typically requiring Section 10 permits include construction of piers, wharves, bulkheads, dolphins, marinas, ramps, floats intake structures, and cable or pipeline crossings; dredging and excavation; and overhead transmission lines, tunnels, or directional boring under a Section 10 waterbody.

Section 404 of the Clean Water Act

Requires approval prior to discharging dredged or fill material into the waters of the United States. The Clean Water Act (CWA) aims to protect the physical, chemical and biological integrity of water quality in the United States. Increased surface runoff from development has the potential to cause significant changes in aquatic ecosystems. Discharges of runoff may carry pollutants such as eroded soil, oil, metals, and pesticides that adversely affect oceans, streams, wetlands, lakes, and groundwater.

Section 103 of the Marine Protection, Research, & Sanctuaries Act of 1972

As amended (33 U.S.C. 1413), authorizes the U.S. Army Corps of Engineers to issue permits for the transportation of dredged material for the purpose of dumping it into ocean waters.

Section 14 of the Rivers and Harbors Act of 1899

33 USC 408 (commonly referred to as “Section 408”), authorizes the Secretary of the Army, on the recommendation of the Chief of Engineers of the US Army Corps of Engineers (USACE), to grant permission for the alteration or occupation or use of a USACE civil works project if the Secretary determines that the activity will not be injurious to the public interest and will not impair the usefulness of the project.

For more information and to begin the application process for a Section 408 review, visit our Section 408 webpage.

Regulatory Program Regulations (33 CFR Parts 320-332)

• 33 CFR Part 320 - General Regulatory Policies
• 33 CFR Part 321 - Permits for Dams & Dikes in Navigable Waters of the U.S.
• 33 CFR Part 322 - Permits for Structures in or Affecting Navigable Waters of the U.S.
• 33 CFR Part 323 - Permits for Discharges of Dredged or Fill Material Into Waters of the U.S.
• 33 CFR Part 324 - Permits for Ocean Dumping of Dredged Material
• 33 CFR Part 325 - Processing of Department of the Army Permits
• 33 CFR Part 326 - Enforcement
• 33 CFR Part 327 - Public Hearing
• 33 CFR Part 328 - Definition of Waters of the United States (1986 Rule)
• 33 CFR Part 329 - Definition of Navigable Waters
• 33 CFR Part 330 - Nationwide Permit Program
• 33 CFR Part 331 - Administrative Appeal Process
• 33 CFR Part 332 - Compensatory Mitigation for Losses of Aquatic Resources
• 33 CFR Part 334 - Danger Zone and Restricted Areas (Procedures)

Related Regulations

• 40 CFR Part 230 - Section 404(b)(1) Guidelines
• 40 CFR Part 22 - Administrative Assessment of Civil Penalties & the Revocation or Suspension of Permits
• 40 CFR Part 233 - State Program Regulations
• 40 CFR Part 233G - Tribal Regulations (Open PDF and search for “Subpart G”)
• 40 CFR Part 1500 et seq - Council on Environmental Quality
• 36 CFR Part 800 - Advisory Council on Historic Preservation
• 50 CFR Parts 400-499 - Endangered Species Regulations
• 50 CFR Part 600 - Essential Fish Habitat Regulations

Regulatory Guidance Letters

Regulatory Guidance Letters (RGLs) were developed by the Corps as a system to organize and track written guidance issued to its field agencies. RGLs are normally issued as a result of evolving policy; judicial decisions and changes to the Corps regulations or another agency’s regulations which affect the permit program. RGLs are used only to interpret or clarify existing Regulatory Program policy, but do provide mandatory guidance to the Corps district offices. RGLs are sequentially numbered and expire on a specified date. However, unless superseded by specific provisions of subsequently issued regulations or guidance, the content provided in RGLs generally remains valid after the expiration date. The Corps incorporates most of the guidance provided by RGLs whenever it revises its permit regulations.

Some projects will require additional evaluation under other related laws and regulations. The lists below are not exhaustive. They are provided to make you aware of other laws which affect our program. Some of these laws apply regularly and some of them are rarely applicable.

Section 401 of the Clean Water Act

Under Section 401 of the CWA, a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a Section 401 water quality certification is issued, or certification is waived. The State of Alaska and the EPA (in certain locations) are the certifying authorities responsible for issuing water quality certifications in the State of Alaska. The Section 401 certification can cover both the construction and operation of the proposed project. Conditions of the Section 401 certification become conditions of the DA permit issued by the Corps. Section 404 permits generally require Section 401 water quality certifications. Section 10 permits may also require Section 401 water quality certifications.

When you apply for a permit from the USACE, Regulatory Division, you are often required to obtain a Section 401 water quality certification from the certifying authority. The Section 401 certification is generally conducted at the same time as the USACE, Regulatory Division’s review. To apply for a Section 401 certification, contact the applicable certifying authority. The certifying authorities in Alaska are: U.S. Environmental Protection Agency, Region 10 (EPA) and the Alaska Department of Environmental Conservation (ADEC). EPA is the certifying authority for activities in Metlakatla Indian Community, some Native Allotments, and Denali National Park. Alaska Department of Environmental Conservation (ADEC) is the certifying authority for activities in Alaska on all other lands not under EPA’s authority identified above.

For additional information on Section 401 of the Clean Water Act visit:

Endangered Species Act

The purpose of the Endangered Species Act (ESA) is to protect and recover many of our nation’s native plant and animal species that are in danger of becoming extinct. This protection extends to the habitats upon which they depend. The ESA is administered by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS)/Protected Species Division (PRD). The USFWS consults on birds, terrestrial animals, plants, amphibians and most freshwater fish. The NMFS/PRD consults on salmon, marine fish, marine mammals and marine reptiles.

When a proposed project has potential to affect a species listed under the Endangered Species Act, the USACE Regulatory Division is required to consult with the NMFS/PRD and/or the USFWS and cannot issue a permit until that consultation is complete. A USACE Regulatory Division tool designed to expedite the consultation is called Standard Local Operating Procedures for Endangered Species (SLOPES). SLOPES allows for a streamlined formal consultation process by timing projects to avoid critical life history windows; by minimizing aquatic resource, species and designated critical habitat impacts; and by improving the environmental baseline through site-specific habitat improvements. The SLOPES related documents are posted below under AK SLOPES.

AK SLOPES

Magnuson-Stevens Fishery Conservation and Management Act

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), established procedures designed to identify, conserve, and enhance Essential Fish Habitat (EFH) for those species regulated under a Federal fisheries management plan (FMP). Section 305(b)(2) of the Magnuson-Stevens Act requires Federal action agencies to consult with NOAA’s National Marine Fisheries Service (NOAA Fisheries/NMFS) Habitat Conservation Division (HCD) on all actions, or proposed actions, authorized, funded, or undertaken by the agency, that may adversely affect EFH.

For more information and guidance on EFH, including assessments, templates, and a list of designated EFH for your area, please see the National Marine Fisheries Service EFH website.

Cultural Resources and Historic Properties

Section 106 of the National Historic Preservation Act of 1966 requires federal agencies to take into account the effects of their undertakings on historic properties. A Department of the Army permit is considered to be such a federal undertaking. Historic properties, commonly referred to as cultural resources, are archaeological sites, historic districts, buildings or structures, and traditional cultural properties that are included in the National Register of Historic Places, or meet the criteria for inclusion in the National Register. The term encompasses artifacts, records and human burials related to and located within such properties. If there are indications your project has the potential to effect historic properties, you may be asked to complete a cultural resource assessment, which may include a historic property or cultural resource survey.

Federal Trust Responsibilities

The federal government’s unique relationship with Native American tribes is embodied in the U.S. Constitution, treaties, court decisions, federal statues and executive orders. Native American treaties are not a granting of rights, but a protection and preservation of land and certain rights retained by the tribes when they sign treaties. Treaties with tribes are equal to federal laws passed by Congress. As a federal agency the USACE Regulatory Division has federal trust responsibility to ensure that Native American rights reserved by treaties are not compromised as part of our permit application review.