United States Army Corps of EngineerS
Los Angeles District Regulatory Division
REGULATORY PERMIT PROGRAM
Source: SPL PAM 1130-2-1 November 1993
The Congress of the United States has assigned to the U.S. Army Corps of Engineers the responsibility for regulation of construction and other work in the waters of the United States. The Corps is charged with protecting our nation's harbors and navigation channels from destruction and encroachments. and with restoring and maintaining environmental quality. This is accomplished by regulating activity in three areas; discharge of dredged or fill material in coastal and inland waters and wetlands; construction and dredging in navigable waters of the United States, and transport of dredged material for dumping into ocean waters.
Navigable Waterways of the Los Angeles District
Pacific Ocean, Harbors and Estuaries, Colorado River
Major Federal Coordinating Agencies
U.S. Fish and Wildlife Service
National Marine Fisheries Service
Environmental Protection Agency
Major State and Local Coordinating Agencies
California State Lands Division
California Department of Fish and Game
California Water Quality Control Board
California Coastal Commission
Arizona Department of Game and Fish
Arizona Department of Environmental Quality
Various city and county agencies in project areas
Purpose of the Permit Program
The Corps Permit Program, administered by the Regulatory Branch, seeks to insure that our nation's water resources and wetlands are used in the best interest of the public. This includes consideration of environmental, cultural and other public interest concerns.
Who Should Obtain a Permit?
Any person, firm, or agency (including Federal, state, and local governmental agencies) planning to work in waters of the United States should first contact the Corps of Engineers regarding the need to obtain a permit from the Regulatory Branch. Permits, licenses, variances, or similar authorization may also be required by other Federal, state and local statutes.
The necessary permits are required even when land next to or under the water is privately owned. Both the property owner and contractor may be held liable for violation of Federal law if work begins before permits have been obtained. Penalties for proceeding with work without a permit issued by the Corps may include:
• Removal of work and restoration of area.
• Administrative penalties of up to $25,000 per day for each violation.
• Fine of up to $50,000 per day for each violation.
• Up to three years in prison.
Typical Activities Requiring Permits
The listed activities in waters of the United States may require permits.
• Construction of such structures as piers, wharves, bulkheads, dolphins, marinas, ramps and floats.
• Placement of wires and cables over the water, pipes or cables under the water, and intake and outfall pipes.
• Dredging, excavation and depositing of fill and dredged material.
• Transport of dredged material for the purpose of dumping into ocean waters.
• Any construction of revetments, groins, break- waters, levees, dams, dikes and weirs.
• Placement of riprap and road fills.
• Grading or land leveling activities.
• Sandmining and related activities.
The Cops permit program is based mainly on three Acts of Congress.
• Sections 9 and 10 of the RIVER AND HARBOR ACT of 1899 prohibit unauthorized construction in navigable waters of the United States.
• Section 404 of the CLEAN WATER ACT governs disposal of dredged or fill material in waters of the United States.
• Section 103 of the MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OF 1972 regulates transportation of dredged material for the purpose of dumping into ocean waters.
Other statutes also affect Corps regulatory authority.
• The NATIONAL ENVIRONMENTAL POLICY ACT of 1969 defines the national policy for encouragement of productive harmony between man and his environment, as evaluated through Environmental Impact Statements and Assessments.
• The FISH AND WILDLIFE COORDINATION ACT of 1956 requires the Corps to coordinate permit applications with State and Federal fish and wildlife agencies.
• The NATIONAL HISTORIC PRESERVATION ACT of 1966 requires coordination on matters concerning historic and archaeological preservation.
• The COASTAL ZONE MANAGEMENT ACT of 1972 requires that activities comply with and be certified by a State's coastal zone management program.
• The ENDANGERED SPECIES ACT of 1973 requires coordination to insure protection of endangered and threatened species.
• The EXECUTIVE ORDER 11988 of 1977 requires that the District Engineer avoid authorizing floodplain development whenever practicable.
Waters of the United States Defined
Waters of the United States, which are subject to Corps of Engineers' jurisdiction under Section 404 of the Clean Water Act, include:
• Territorial seas, measured seaward a distance of three miles;
• Coastal and inland waters, lakes, rivers and streams, and their tributaries;
• Interstate waters and their tributaries;
• Wetlands adjacent to all of the above waters; and
• Isolated wetlands and lakes, intermittent streams, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.
Factors Considered In Issuing a Permit
Overall, a permit must be found to be not contrary to the public interest. All factors which may be relevant to the proposal must be considered. Among those are: conservation, economics, aesthetics, general environmental concerns, wetlands, fish and wildlife values, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food production and, in general, the needs and welfare of the people. In addition to the public interest review and of equal importance is an analysis of alternative project designs that may avoid negative impacts to the aquatic ecosystem.
Some permits, such as nationwide permits, do not require a fee. Fees for other permits are assessed according to the proposed use. For example, the fee for work to be done for commercial and industrial use is $100, for private or noncommercial use, the fee is $10. The applicant will be notified of the required fee. No fee is required for Federal, state, or local government agencies. Permit fees are subject to future changes.
Wetlands are those areas that are inundated or saturated by surface or ground water (either fresh or salt) at a frequency and duration sufficient to support vegetation adopted for life in saturated soil conditions.
Wetlands and other saturated soils associated with coastal and inland waters may be of considerable value to the public interest, even though they are not directly or actively used by the public. Examples of such values are: water retention to limit flooding; ground water recharge areas; filtering of contaminated surface water, nutrient source for aquatic organisms: and resting, breeding, cover and feeding habitat for wildlife.
Wetlands and other special aquatic sites are afforded additional protection in the Corps of Engineers' section 404 permitting program.
Wetlands include such areas as swamps, marshes, bogs, estuaries, certain unique pond systems, and inland and coastal shallows. These wetland types are characterized by:
Predominance of aquatic or emergent wetland vegetation. Some species of these plants are nonpersistent and are obviously present only during the growing season (e.g. loosestrife, ludwigia, annual knotweeds and salt marsh fleabane.) Others are persistent and can typically be found standing even during the nongrowing season (e.g. cordgrass, common pickleweed, cattails, willows, bulrush, softrushes and sedges, alder, mulefat, cottonwood, and sycamore).
Type of water regime (saltwater. freshwater, tidal vs. nontidal, and either permanently flooded in the case of aquatic systems or occasionally to regularly flooded in the case of flats, marshes and swamps). If the water regime is not apparent during the summer or nongrowing season or if the high water mark is not apparent, evaluation of soil characteristics can determine the identity of a wetland.