1986 Corps Regs Final - Sacramento District...rule. The various comments relating to these proposals...

Federal register

ThursdayNovember 13, 1986

Part II

Department of Defense

Corps of Engineers, Department of the Army

33 CFR Parts 320 through 330

Regulatory Programs of the Corps of Engineers; Final Rule

Note: This is a scanned copy. Page numbers are accurate, but there are minorformatting changes. Some letters and numbers may not have been accuratelyscanned. Do not use for legal cite. See current Code of Federal Regulations(CFR).

41206 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations

DEPARTMENT OF DEFENSECorps of Engineers, Department ofthe Army

33 CFR Parts 320, 321, 322, 323, 324,325, 326, 327, 328, 329 and 330

Final Rule for Regulatory Programs ofthe Corps of Engineers

AGENCY: Corps of Engineers, ArmyDepartment, DOD.

ACTION: Final rule.

SUMMARY: We are hereby issuing finalregulations for the regulatory program ofthe Corps of Engineers. These regulationsconsolidate earlier final, interim final, andcertain proposed regulations along withnumerous changes resulting from theconsideration of the public commentsreceived. The major changes includemodifications that provide for moreefficient and effective management of thedecision-making processes, clarificationsand modifications of the enforcementprocedures, modifications to thenationwide permit program, revision of thepermit form, and implementation ofspecial procedures for artificial reefs asrequired by the National FishingEnhancement Act of 1984.

EFFECTIVE DATE: January 12, 1987.FOR FURTHER INFORMATIONCONTACT:

Mr. Sam Collinson or Mr. Bernie Goode,HQDA (DAEN-CWO-N), Washington,DC 20314— 1000, (202) 272— 0199.SUPPLEMENTARY INFORMATION:

Consolidation of Corps Permit RegulationsThese final regulations consolidate andcomplete the six following rulemakingevents affecting the Corps regulatoryprogram:

1. Interim Final Regulations. Theseregulations contained Parts 320— 330 andwere published (47 FR 31794) on July 22,1982, to incorporate policy and proceduralchanges resulting from legislative, judicial,and administrative actions that hadoccurred since the previous finalregulations had been published in 1977.Because it had been almost two years sincewe had proposed changes to the 1977regulations, we published the 1982regulations as “interim final” and asked forpublic comments. We received nearly 200comments.2. Proposed Regulatory ReformRegulations. On May 12, 1983, wepublished (48 FR 21466) proposedrevisions to the interim final regulations toimplement the May 7, 1982, directives ofthe Presidential Task Force on Regulatory

Relief. The Task Force directed the Armyto reduce uncertainty and delay, give thestates more authority and responsibility,reduce conflicting and overlappingpolicies, expand the use of general permits,and redefine and clarify the scope of thepermit program. Since these regulationsproposed changes to our existingnationwide permits and the addition of twonew nationwide permits, a public hearingwas held in Washington, DC, on October12, 1983, to obtain comments on theseproposed changes. As a result of the publiccomments received, nearly 500 in responseto the proposed regulations and 22 at thepublic hearing, we have determined thatsome of the proposed revisions should beadopted and some should not. We haveadopted some of the provisions that weredesigned to clarify policies for evaluatingpermit applications, to revise certainpermit processing procedures, to addadditional conditions to existingnationwide permits, and to modify certainnationwide permit procedures. We havenot adopted some of the other proposedchanges, including the two proposed newnationwide permits.3. Settlement Agreement FinalRegulations. On October 5, 1984, wepublished (49 FR 39478) final regulationsto implement a settlement agreementreached in a suit filed by 16 environmentalorganizations in December of 1982 againstthe Department of the Army and theEnvironmental Protection Agency (NWFv. Marsh) concerning several provisions ofthe July 22, 1982, interim final regulations.The court approved the settlementagreement on February 10, 1984, and onMarch 29, 1984, we published (49 FR12660) the implementing proposedregulations. We received over 150comments on these proposed regulationscovering a full range of views. Thosecomments which were applicable to theprovisions of the March 29, 1984,proposals were considered and addressedin the final regulations published onOctober 5, 1984. The remaining commentshave been considered in the developmentof the final regulations we are issuingtoday.

In the October 5, 1984, final rule therewere several new provisions relating to the404(b)(1) guidelines. In 33 CFR320.4(a)(1) we clarified the fact that no404 permit can be issued unless itcomplies with the 404(b)(1) guidelines.

If a proposed action complies with theguidelines, a permit will be issued unlessthe district engineer determines that it willbe contrary to the public interest. In 33CFR 323.6(a) we stated that districtengineers will deny permits for dischargeswhich fail to comply with the 404(b)(1)guidelines, unless the economic impact onnavigation and anchorage necessitates

permit issuance pursuant to section404(b)(2) of the Clean Water Act.Although no 404 permit can be issuedunless compliance with the 404(b)(1)guidelines is demonstrated (i.e.,compliance is a prerequisite to issuance),the 404(b)(1) evaluation is conductedsimultaneously with the public interestreview set forth in 33 CFR 320.4(a).

4. Proposed Permit Form Regulations.On May 23, 1985, we published (50 FR21311) proposed revisions to 33 CFR Part325 (Appendix A), which contains thestandard permit form used for the issuanceof Corps permits and the related provisionsconcerning special conditions. Thisproposal provided for the completerevision of the permit form and its relatedprovisions to make them easier forpermittees to understand. General permitconditions were written in plain Englishand greatly reduced in number;unnecessary material was deleted; andmaterial which is informational in naturewas reformatted under a “FURTHERINFORMATION” heading. We received18 comments on this proposal.

5. Proposed Regulations to Implementthe National Fishing Enhancement Act of1984 (NFEA). On July 26, 1985, wepublished (50 FR 30479) proposedregulations to implement a portion of theCorps regulatory responsibilities pursuantto the NFEA. Specialized proceduresrelative to the processing of Corps permitsfor artificial reefs were proposed forinclusion in Parts 322 and 325. Eightorganizations commented on theseproposed regulations, The NFEA alsoauthorizes the Secretary of the Army toassess a civil penalty on any person who,after notice and an opportunity for ahearing, is found to have violated anyprovision of a permit issued for anartificial reef. Procedures forimplementing such civil penalties will beproposed at a later date. In addition, we arehereby notifying potential applicants forartificial reef permits that the procedurescontained in Part 323 relating to thedischarge of dredged or fill materials andthose in Part 324 relating to thetransportation of dredged material for thepurpose of dumping in ocean waters willbe used in the processing of artificial reefpermits when applicable.

6. Proposed Regulations (Portion ofPart 323 and All of Part 326. On March20, 1986, we published (51 FR 9691) aproposed change to 33 CFR 323.2(d),previously 323.2(j), to reflect the Army’spolicy regarding de minimis or incidentalsoil movements occurring


during normal dredging operations and aproposed, complete revision of the Corpsof Engineers enforcement procedures (33CFR Part 326). Seventeen comment letterswere received on these proposedregulations. These comments and theresulting changes reflected in the finalregulations for § 323.2(d) and Part 326 arediscussed in detail below.

Environmental Documentation

We have determined that this actiondoes not constitute a major Federal actionsignificantly affecting the quality of thehuman environment. Appropriateenvironmental documentation has beenprepared for all permit decisions.Environmental assessments for each of thenationwide permits previously issued orbeing modified today are available fromthe Corps of Engineers. You may obtainthese assessments by writing to the addresslisted in this preamble. Considering thepotential impacts, we have determined thatnone required an environmental impactstatement.

Discussion of Public Comments andChangesPart 320— Genera/Regulatory Policies

Section 320.1(a) (6): In order to provideclarity to the public, we have added aprovision to codify existing practice thatwhen a district engineer makes certaindeterminations under these regulations, thepublic can rely on that determination as aCorps final agency action.

Section 320.3(o): The National FishingEnhancement Act of 1984 has been addedto the list of related laws in § 320.3.

Section 320.4: In the May 12, 1983.proposed rule and the March 29, 1984,proposed rule we proposed changes to § §320.4(a)(1)— public interest review,320.4(b)(5)— effect on wetlands,320.4(c)— fish and wildlife, 320.4(g)—consideration of property ownership, and320.4(j)— other Federal, state or localrequirements. Changes to these paragraphswere adopted in the October 5, 1984, finalrule. The various comments relating tothese proposals have been fully discussedin the October 5, 1984 final rule (49 FR39478).

Section 320.4 (a) (3): Many commentersobjected, some strongly, to the deletion inthe October 5, 1984, final regulations ofthe term “great weight” from § 320.4(c),the paragraph concerning the considerationof opinions expressed by fish and wildlifeagencies. Many stated that fish andwildlife agencies had the expertise andknowledge to know the impact of work inwetlands; therefore, their opinions shouldbe given strong consideration. Somecommenters supported removal of the“great weight” statement expecting less

value would be given fish and wildlifeagency views. It is not our intention toreduce or discount the value or expertise offish and wildlife agency comments orthose of any other experts in any field.Comments also varied from support of toobjection to the deletion of the “greatweight” statement from the other policystatements such as energy and navigationin § 320.4. Therefore, we added a newparagraph (a)(3) to clarify our position onhow we consider comments from thepublic, including those from persons oragencies with special expertise onparticular factors in the public interestreview.

Section 320.4 (b) (1): One commenterobjected to the placement of the word“some” in this paragraph as a rewrite ofE.O. 11990 which places no qualifier on“wetlands” indicating that all wetlands arevital. We have found through experiencein administering the Section 404 permitprogram that wetlands vary in value.While some are vital areas, others havevery little value; however, most areimportant. We recognize that “somewetlands are vital . . .“ is being read bysome people as “Some wetlands areimportant . . .“ This was not our intent. Toavoid this confusion we have revised thisparagraph by deleting “some wetlands arevital areas . . .“ and indicating that “most”wetlands are important.

Section 320.4(b)(2)(vi): We haveincluded in the list of important wetlandsthose wetlands that are ground waterdischarge areas that maintain minimumbaseflows important to aquatic resources.Scientific research now indicates thatwetlands more often serve as dischargeareas than recharge areas. Those dischargeareas which are necessary to maintain aminimum baseflow necessary for thecontinued existence of aquatic plants andanimals are recognized as important.

Section 320.4(b)(2)(viii): We haveincluded in the list of important wetlandsthose which are unique in nature or scarcein quantity to the region or local area.

Section 320.4(d): We have revised thisparagraph to clarify that impacts from bothpoint source and non-point sourcepollution are considered in the Corpspublic interest review. However, section208 of the Clean Water Act provides forcontrol of non-point sources of pollutionby the states.

Section 320.4 (j) (1): Clarifyinglanguage has been added to this section toeliminate confusion regarding denialprocedures when another Federal, state,and/or local authorization or certificationhas been denied.

Section 320.4(p): Some commenters feltthat environmental considerations shouldtake precedence over other factors. Othercommenters believed that guidance should

be given as to who determines whetherthere are environmental benefits to aproject. Many commenters indicated thatthe regulation does not define the possiblerange of environmental benefits that willbe considered. Environmental benefits aredetermined by the district engineer and thedistrict staff based on responses receivedfrom the general public, special interestgroups, other government agencies andstaff evaluation of the proposed activity.Defining the possible range ofenvironmental benefits would be almostimpossible to cover in the rules insufficient detail, since circumstances varyconsiderably for each permit application.After considering all the comments wehave decided to make the change asproposed on May 12, 1983.

Section 320.4(q): Some commentersbelieved that this rule would distort reviewcriteria by inserting inappropriateeconomic assumptions and minimizingenvironmental criteria. Some commenterssuggested that the Corps revise thisparagraph to include a provision tochallenge an applicant’s economic dataand that of governmental agencies as well.Other commenters believe that economicfactors do not belong in these regulationssince the intent of the Clean Water Act is:“to restore and maintain the chemical,physical, and biological integrity of thenation’s waters”; therefore, any regulationunder the CWA should have, as its primaryobjective, provisions which giveenvironmental factors the greatest weight.They were concerned that this part may beapplied to allow economic benefits tooffset negative environmental effects.Some’ commenters, however, believed thatthe Corps should assume that projectsproposed by state and local governmentalinterests and private industry areeconomically viable and are needed in themarketplace. They also believed that theCorps and other governmental agenciesshould not engage in detailed economicevaluations. Economics has been includedin the Corps list of public interest factorssince 1970. However, there has never beena specific policy on economics in theregulations. The Corps generally acceptsan applicant’s determination that aproposed activity is needed and will beeconomically viable, but makes its owndecision on whether


a project should occur in waters of the U.S.The district engineer may determine thatthe impacts of a proposed project on thepublic interest may require more than acursory evaluation of the need for theproject. The depth of the evaluation woulddepend on the significance of the impactsand in unusual circumstances couldinclude an independent economic analysis.The Corps will balance the economic needfor a project along with other factors of thepublic interest. Accordingly, § 320.4(q)has been modified from the proposed ruleto provide that the district engineer maymake an independent review of the needfor a project from the perspective of thepublic interest.

Section 320.4(r): Many comments wereoffered as to the intent, scope andimplementation of the proposed mitigationpolicy. Comments were almost equallydivided between those who felt that thepolicy should be expanded and those thatfelt it should be more limited. The issuesthat were raised include: mitigation shouldnot be used to outweigh negative publicinterest factors; mitigation should not beintegrated into the public interest review;mitigation should be on-site to themaximum extent practicable; off-sitemitigation extends the range of concernsbeyond those required by Section 404. Awide range of views were expressed on ourproposed mitigation policy, but virtuallyall commenters expressed need for apolicy. The Corps has been requiringmitigation as permit conditions for manyyears based on our regulations and the404(b)(1) guidelines. Because of theapparent confusion on this matter, we havedecided to clarify our existing policy at320.4(r).

The concept of “mitigation” is many-faceted, as reflected in the definitionprovided in the Council on (EnvironmentalQuality (CEQ) NEPA regulations at 40CFR 1508.20. Viewing “mitigation” in itsbroadest sense, practically any permitcondition or best management practicedesigned to avoid or reduce adverse effectscould be considered “mitigation.”Mitigation considerations occurthroughout the permit application reviewprocess and are conducted in consultationwith state and Federal agencies responsiblefor fish and wildlife resources. Districtengineers will normally discussmodifications to minimize project impactswith applicants at pre-application meetings(held for large and potentiallycontroversial projects) and during theprocessing of applications. As a result ofthese discussions, district engineers maycondition permits to require minor projectmodifications, even though that projectmay satisfy all legal requirements and the

public interest review test without thosemodifications.

For applications involving Section 404authority, mitigation considerations arerequired as part of the Section 404(b)(1)guidelines analysis; permit conditionsrequiring mitigation must be added whennecessary to ensure that a project complieswith the guidelines. To emphasize this, wehave included a footnote to § 320.4(r)regarding mitigation requirements forSection 404, Clean Water Act, permitactions. Some types of mitigationmeasures are enumerated in Subpart H ofthe guidelines. Other laws such as theEndangered Species Act may also lead tomitigation requirements in order to ensurethat the proposal complies with the law. Inaddition to the mitigation developed inpreapplication consultations and throughapplication of the 404(b)(1) guidelines andother laws, these regulations provide forfurther mitigation should the publicinterest review so indicate.

One form of mitigation is“compensatory mitigation,” defined at 40CFR 1508.20(e) to mean “‘compensatingfor the impact by replacing or providingsubstitute resources or environments.”Federal and state natural resource agenciessometimes ask the Corps to require permitapplicants to compensate for wetlands tobe destroyed by permitted activities. Suchcompensatory mitigation might beprovided by constructing or enhancing awetland; by dedicating wetland acreage forpublic use; or by contributing to theconstruction, enhancement, acquisition orpreservation of such “mitigation lands.”Compensatory mitigation of this type isoften referred to as “‘off-site” mitigation.However, it can be provided either onsiteor off-site. Such mitigation can be requiredby permit conditions only in compliancewith 33 CFR 325.4, and specifically with33 CFR 325.4(a)(3). In addition to thoserestrictions, the Corps has for many yearsdeclined to use, and does now decline touse, the public interest review to requirepermit applicants to provide compensatorymitigation unless that mitigation isrequired to ensure that an applicant’sproposed activity is not contrary to thepublic interest. If an applicant refuses toprovide compensatory mitigation whichthe district engineer determines to benecessary to ensure that the proposedactivity is not contrary to the publicinterest, the permit must be denied. If anapplicant voluntarily offers to providecompensatory mitigation in excess of theamount needed to find that the project isnot contrary to the public interest, thedistrict engineer can incorporate a permitcondition to implement that mitigation atthe applicant’s request.

Part 321— Permits for Dams and Dikes inNavigable Waters of the United States

The Secretary of the Army delegated hisauthority under Section 9 of the Rivers andHarbors Act of 1899, 33 U.S.C. 401 to theAssistant Secretary of the Army (CivilWorks). The Assistant Secretary in turndelegated his authority under Section 9 forstructures in intrastate navigable waters ofthe United States to the Chief of Engineersand his authorized representative. Districtengineers have been authorized in 33 CFR325.8 to issue or deny permits for dams ordikes in intrastate navigable waters of theUnited States” under Section 9 of theRivers and Harbors Act of 1899. Thissection of the regulation and § § 325.5(d)and 325.8(a) have been revised to reflectthis delegation.

Part 322— Permits for Structures or Workin or Affecting Navigable Waters of theUnited States

Section 322.2(a): We have revised theterm “‘navigable waters of the UnitedStates” to reference 33 CFR Part 329 sinceit and all other terms relating to thegeographic scope of the Section 10program are defined at 33 CFR Part 329.Section 322.2(b): Commenters on thedefinition of structures indicated thatseveral terms needed further amplification.It was suggested that the term “boom” bedefined to exclude a float boom, as wouldbe used in front of a spillway. The termwas not redefined because those damsconstructed in Section 10 waters do requirea permit for a float boom. However, mostdams in the United States are constructedin non-Section 10 waters and do notrequire a permit for a boom (floating orotherwise) unless it involves the dischargeof dredged or fill material. It wassuggested that the term “obstacle orobstruction” be modified to reinstitute thelanguage from the July 19, 1977, finalregulations. We have adopted thesuggestion which will clarify our intentthat obstacles or obstructions, whetherpermanent or not, do require a permit; itwill also assist in jurisdictional decisionson enforcement. It was suggested that“boat docks” and ‘“boat ramps” beincluded in the list of structures, sincethese are frequently proposed structures.These have been included. It wassuggested that the term ““artificial gravelisland” be added, as


Congress, by Section 4(e) of the OuterContinental Shelf Lands Act of 1953,extended the regulatory program to theOuter Continental Shelf, and specificallycited artificial islands as falling underSection 10 jurisdiction. This type ofstructure is also constructed on state landswithin the territorial seas. Accordingly,artificial islands have been included.

Section 322.2(c): Two commentersdiscussed the definition of “‘work”; onestated that it was too broad and the otherthat it should be expanded. The presentdefinition of the term “‘work” hasremained unchanged for many years andhas achieved general acceptance by theregulators and those requiring a permit.The present language has been retained.

Sections 322.2(f)(2) and 323.2 (n) (2):Both of these sections are concerned withthe definition of general permits. Severalcommenters expressed support for theadditional criteria contained in the May 12,1983 proposed rule. Other commentersexpressed concern that the proposedcriteria were illegal. Some commentersbelieved that the proposal would amount toa delegation of the Section 404 program tothe states, and that this is not a prerogativeof the Corps of Engineers. Manycommenters expressed serious concern thatstate programs were not comprehensiveenough to properly represent the publicinterest review. Still others objected to theproposal because there were no assurancesthat the state approved projects themselveswere ‘“similar in nature” or would have“minimal adverse environmental effects”;those objections extended to the proposalto assess the impacts of the differences inthe State! Corps decisions. Somecommenters suggested that an automatic“kick-out” provision, whereby concernedagencies could cause the Corps to requirean individual application on a case-by-casebasis, may provide sufficient safeguardsfor the proposal to go forward. Somecommenters suggested that a preferredapproach to reducing duplication would befor the Corps to express, in its regulations,direction for its districts to vigorouslypursue joint processing, permitconsolidation, pre-application consultation,joint applications, joint public notices andspecial area management planning. Thischange was proposed in 1983. At that timewe believed that additional flexibility inthe types of general permits which couldbe developed was necessary to effectivelyadminister the regulatory program. Ourexperience since then has shown that theexisting definitions of general permit atboth of these sections is flexibleenough to develop satisfactory generalpermits. Therefore we have decided not toadopt this proposed change. Because

several definitions previously found in Part323 have been moved to Part 328, §323.2(n) has been redesignated § 323.2(h).

Section 322.2(g): This section adds thedefinition of the term “artificial reefs”from the National Fishing EnhancementAct and clarifies what activities orstructures the term does not include. Twocommenters suggested modifications, orclarifications, to this definition to ensurethat old oil and gas production platformscan be considered for use as artificial reefs.We agree with their suggestion. Thedefinition would include the use of someproduction platforms, either abandoned inplace or relocated, as artificial reefs aslong as they are evaluated and permitted asmeeting the standards of Section 203 ofthe Act.

Section 322.2(h): This section wasproposed to add the definition of the term“outer continental shelf” from the OuterContinental Shelf Lands Act (OCSLA).Two commenters suggested that theterritorial sea off the Gulf Coast of Floridaand Texas is greater than three nauticalmiles from the coast line. We havedetermined that this is not the case, andhave decided not to include a definition ofthe term “outer continental shelf” in theseregulations and to rely instead on thedefinition of this term that is already in theOCSLA.

Sections 322.3 (a) and 322.4: Activitieswhich do not require a permit have beenmoved from § 322.3 and included in §322.4. The limitation of the applicability ofSection 154 of the Water ResourceDevelopment Act of 1976 in certainwaterbodies has been deleted because nosuch limitation exists in that Act.

Section 322.5(b): This section addressesthe policies and procedures for processingartificial reef applications. One commentersuggested that the opportunity for ageneral permit should not be precluded bythis section. A general permit for artificialreefs is not precluded by this regulationchange. Furthermore, the opportunity forthe issuance of general permits may beenhanced with the implementation of theNational Artificial Reef Plan by theDepartment of Commerce.

Section 322.5(b) (1): This section citesthe standards established under section 203of the National Fishing Enhancement Act.These standards are to be met in the sitingand construction, and subsequentmonitoring and managing, of artificialreefs. Two commenters insisted that theseshould be called goals or objectives, andseveral commenters said that more specificguidelines or criteria are needed toevaluate proposed artificial reefs against

the standards or goals. Section 204 of theAct states that the Department ofCommerce will develop a NationalArtificial Reef Plan which will beconsistent with the standards establishedunder Section 203, and will include criteriarelating to siting, constructing, monitoring,and managing artificial reefs. Specificationof such criteria in these rules would beinappropriate in view of the intent ofCongress to have the Department ofCommerce perform this function. TheNational Marine Fisheries Service(NMFS), acting for the Department ofCommerce, has consulted with us indeveloping the National Artificial ReefPlan, and we will continue to consult withthem to ensure permits are issuedconsistent with the criteria established inthat plan. The Department of Commerceannounced the availability of the NationalArtificial Reef Plan in the Federal Registeron November 14, 1985.

The U.S. Coast Guard was particularlyconcerned that these rules be more specificwith regard to information and criteria thatwill be used to ensure navigation safetyand the prevention of navigationalobstructions. Section 204 of the NationalFishing Enhancement Act requires that theDepartment of Commerce consult the U.S.Coast Guard in the development of theNational Artificial Reef Plan regarding thecriteria to be established in the plan. Oneof the standards with which the criteriamust be consistent is the prevention ofunreasonable obstructions to navigation. Inaddition, the district engineer shall consultwith any governmental agency orinterested party, as appropriate, in issuingpermits for artificial reefs. This includespreapplication consultation with the U.S.Coast Guard, and placing conditions inpermits recommended by the U.S. CoastGuard to ensure navigational safety.

Section 322.5(b) (2) and (3): Thesesections state that the district engineer willconsider the National Artificial Reef Plan,and that he will consult with governmentalagencies and interested parties, asnecessary, in evaluating a permitapplication. Two commenters supportedthis coordination. The NMFS requestednotification of decisions to issue permitswhich either deviate from or comply withthe plan. Paragraph (b)(2) requires thedistrict engineer to notify the Departmentof Commerce of any need to deviate fromthe plan. In addition, the NMFS receives amonthly list of permit applications onwhich the


district engineer has taken final action.This should be sufficient notification forthose permits which do not deviate fromthe plan.

Section 322.5(b)(4): Although somecommenters strongly supported thissection describing the liability ofpermittees authorized to build artificialreefs, several expressed concern that thisprovision was not clearly written orrequired specific criteria to assist thedistrict engineer in determining financialliability. This paragraph has been rewrittento correspond closely with the wording inthe National Fishing Enhancement Act,and examples of ways an applicant candemonstrate financial responsibility havebeen added.

Section 322.5(g,): We have revised thisparagraph on canals and other artificialwaterways by eliminating procedural-onlyprovisions which are redundant withrequirements in 33 CFR Parts 325 and 326.

Section 322.5(l): A new section onfairways and anchorage areas has beenadded. This section was formerly found at33 CFR 209.135. We are moving thisprovision to consolidate all of the permitregulations on structures to this part. Wewill delete 33 CFR 209.135 by separatenotice in the Federal Register.

Part 323— Permits for Discharges ofDredged or Fill Material Into Waters ofthe United States

Section 323.2: Several commenterssupported moving the definitions relatingto waters of the United States to a separateparagraph. As proposed on May 12, 1983,we have moved the term “waters of theUnited States” and all other terms relatedto the geographic scope of jurisdiction ofSection 404 of the CWA to 33 CFR Part328 which is titled “Definition of theWaters of the United States.” We believethat, by setting these definitions apart in aseparate and distinct Part of the regulationand including in that Part all of thedefinitions of terms associated with thescope of the Section 404 permit program,we are better able to clarify the scope ofour jurisdiction. We have not changed anyexisting definitions nor added anydefinitions proposed on May 12, 1983.Comments related to these definitions areaddressed in Part 328 below.

We have not changed the definition offill material at § 323.2(e). However, theCorps has entered into a Memorandum ofAgreement with the EnvironmentalProtection Agency to better identify thedifference between section 402 and section404 discharges under the Clean Water Act.

Section 323.2(d)— Previously 323.2(j):The proposed modification of thisparagraph states that “de minimis orincidental soil movement occurring duringnormal dredging operations” is not a“discharge of dredged material,” the termdefined by this paragraph.

Eight commenters raised concernsrelating to this provision. Most of thesesupported the regulation of “de minimis orincidental soil movement occurring duringnormal dredging operations” in varyingdegrees. Two specifically expressed abelief that the fallback from dredgingoperations constituted a discharge withinthe intent of section 404 of the CleanWater Act. One of these stated that theproposed provision was contrary to abinding decision by the U. S. DistrictCourt for the Northern District of Ohio inReid v. Marsh, No. C— 81— 690 (N. D.Ohio, 1984). Another commenter objectedto the provision on the basis that it wouldforce states that perceived a need toregulate dredging operations to regulatesuch activities under their NationalPollutant Discharge Elimination Systemauthority. The recommendations of theabove group of commenters included theregulation of dredging activities on anindividual or general permit basis or on aselective basis that would take into accountthe scopes and anticipated effects of theprojects involved. Two commentersexpressed concern over the fact thatdischarge activities such as the sidecastingof dredged material might be considered“‘soil movement” that was “incidental” toa “normal dredging operation.” The finalconcern raised related to the list ofdredging equipment cited as examples.This list was seen, alternatively, as toolimited or as not limited enough inreference to the types of equipment thatmay be used in a “normal dredgingoperation.” Four commenters supportedthe proposed provision as a reasonableinterpretation of the section 404 authorityof the Corps.

Section 404 clearly directs the Corps toregulate the discharge of dredged material,not the dredging itself. Dredgingoperations cannot be performed withoutsome fallback. However, if we were todefine this fallback as a ““discharge ofdredged material,” we would, in effect, beadding the regulation of dredging tosection 404 which we do not believe wasthe intent of Congress. We haveconsistently provided guidance to our fieldoffices since 1977 that incidental fallbackis not an activity regulated under section404. The purpose of dredging is to removematerial from the water, not to dischargematerial into the water. Therefore, thefallback in a ““normal dredging operation”is incidental to the dredging operation andde minimis when compared to the overall

quantities removed. If there are testsinvolved, we believe they should relate tothe dredging operator’s intent and theresult of his dredging operations. If theintent is to remove material from the waterand the results support this intent, then theactivity involved must be considered as a“normal dredging operation” that is notsubject to section 404.

Based on the above discussion, we havenot adopted any of the recommendationsrelating to the revision or deletion of thisprovision for the purpose of bringing aboutthe regulation of “normal dredgingoperations” in varying degrees. We havereplaced the “or” between the words “deminimis” and “incidental” with a commato more clearly reflect the fact that theincidental fallback from a “normaldredging operation” is considered to be deminim/s when compared to the overallquantities removed. In addition, we havedeleted the examples of dredgingequipment at the end of the proposedprovision to make it clear that de minim/sor incidental soil movement occurringduring any “normal dredging operation” isnot a “‘discharge of dredged material.”However, we wish to also make it clearthat this provision applies only to theincidental fallback occurring during‘“normal dredging operations” and not tothe disposal of the dredged materialinvolved. If this material is disposed of ina water of the United States, by sidecastingor by other means, this disposal will beconsidered to be a “‘discharge of dredgedmaterial” and will be subject to regulationunder section 404.

Section 323.4: We have made someminor corrections to this section to beconsistent with EPA’s permit exemptionregulations at 40 CFR Part 233.

Part 324— Ocean DisposalSection 324.4(c): The language of this

section on the EPA review process hasbeen rewritten to clarify the procedures thedistrict engineer will follow when theRegional Administrator advises that aproposed dumping activity does notcomply with the criteria establishedpursuant to section 102(a) of the MarineProtection, Research and Sanctuaries Act(MPRSA), or the restrictions establishedpursuant to section 102(c) thereof, inaccordance with the provisions of 40 CFR225.2(b).

Part 325— Permit ProcessingSeveral minor changes have been made

in this part. These changes involverequesting additional information from


an applicant, providing for a reasonablecomment period, combining permitdocumentation, and documenting issues ofnational importance.

Section 325.1(b): This section has beenrewritten to clarify the pre-applicationconsultation process for major permitapplications. No significant changes havebeen made in the content of this section.

Section 325.1 (d) (1): One commenteron this content of applications paragraphasked that where, through experience, ithas been found that specific items ofadditional information are routinelynecessary for permit review, the districtengineer should be allowed to developsupplemental information forms. Anotherobserved that restricting production oflocal forms may inhibit joint permitapplication processes. If it becomesnecessary to routinely request additionalinformation, the Corps can change theapplication form, but that must be done atCorps headquarters with the approval ofthe Office of Management and Budget.This change does not place any additionalrestrictions on developing local forms. Asis now the case, local forms may bedeveloped for joint processing with aFederal or state agency.

Section 325.1(d)(8): This is a newsection requiring an applicant to includeprovisions for siting, construction,monitoring and managing the artificial reefas part of his application for a permit. Onecommenter suggested that the criteria foraccomplishing these activities must becompleted in the National Artificial ReefPlan before establishment of such reefs canbe encouraged. Another recommended thatthe regulation describe more specificallythe information to be supplied by anapplicant with regard to monitoring andmaintaining an artificial reef. The planincludes general mechanisms andmethodologies for monitoring thecompliance of reefs with permitrequirements, and managing the use ofthose reefs. It can be used as a guide forthe information to be supplied by thepermit applicant. Specific conditions formonitoring and managing, as well as formaintaining artificial reefs generally needto be site-specific and should be developedduring permit processing.

The U.S. Coast Guard requested thatthey be provided copies of permitapplications for artificial reefs, and that apermittee be required to notify the CoastGuard District Commander when reefconstruction begins and when it iscompleted so timely information can beincluded in notices to mariners. Thedistrict engineer may elect to consult withthe Coast Guard, when appropriate, during

the pre-application phase of the permitprocess. At any rate, the Coast Guard willreceive public notices of permitapplications, and may makerecommendations to ensure navigationalsafety on a case-by-case basis. Appropriateconditions can be added to permits toprovide for such safety.

Section 325.1(e): Several commentersexpressed concern with language changesrequiring only additional information“essential to complete an evaluation”rather than the former requirement forinformation to “‘assist in evaluation of theapplication.” They felt this change wouldreduce the data base on which decisionswould be made. They indicated further thatwithout necessary additional information,district engineers would not be able tomake a reasonable decision, the public’sability to provide meaningful commentswould be limited, and resource agencieswould have to spend more time contactingthe applicant and gathering information.They felt this could increase delays ratherthan limiting them. Several commentersasked that the regulations be altered tospecifically require submission ofinformation necessary for a 404(b)(1)evaluation. Similar concerns wereexpressed with the change stating thatdetailed engineering plans andspecifications would not be required for apermit application. Commenters advisedthat without adequate plans or the abilityto routinely require supplementalinformation it may be impossible to insurecompliance with applicable water qualitycriteria or make reasonable permitdecisions. Other commenters wantedfurther restrictions placed on the districtengineer’s ability to request additionalinformation. Suggestions included alteringthe regulations to specify the type, needfor, and level of detail which could berequested, and requiring the districtengineer to prepare an analysis of costsand benefits of such information. Somecommenters objected to requirements forproviding information on projectalternatives and on the source andcomposition of dredged or fill material.

This paragraph has been changed asproposed. The intent of this change was toassure that information necessary to makea decision would be obtained, whilerequests for non-essential information anddelays associated with such requests wouldbe limited.

Section 325.2(a) (6): The newrequirement to document district engineerdecisions contrary to state and localdecisions was adopted essentially asproposed. The reference to state or localdecisions in the middle of this paragraphincorrectly did not reference § 320.4(j)(4)

in addition to § 320.4(j)(2). The adoptedparagraph references state and localdecisions in both of these paragraphs.

Section 325.2(b)(1)(ii): The May 12,1983, proposed regulations sought to speedup the process by reducing the standard 60day comment/waiver period to 30 days forstate water quality certifications.Commenters on this paragraph offered acomplete spectrum of views from strongsupport for the proposed changes to strongopposition to the proposal. Commentswithin this spectrum included opinionsthat: states must have 60 days; certificationtime should be the same as allowed byEPA (i.e. 6 months); the proposal isillegal; it conflicts with some state waterquality certification regulations andprocedures; and it would reduce state andpublic input to the decision-makingprocess. Most states objected to thisreduction with many citing establishedwater quality certification proceduresrequired by statute and/or regulationswhich require notice to the public(normally 30 days) and which allowrequests for public hearings which cannotbe completed within the 30-day period.We have, therefore, retained the 60 dayperiod in the July 22, 1982, regulations.Some Corps districts have developedformal or informal agreements with thestates, which identify procedures and timelimits for submittal of water qualitycertifications and waivers. Where these arein effect, problems associated withcertifications are minimized.

Many commenters objected to the May12, 1983, proposal to delete from the July22, 1982, regulations the statement, ‘“Therequest for certification must be made inaccordance with the regulations of thecertifying agency.” Deleting this statementwill not delete the requirement that validrequests for certification must be made inaccordance with State laws. However, wehave found that, on a case-by-case basis insome states, the state certifying agency andthe district engineer have found itbeneficial to have some flexibility todetermine what constitutes a valid request.Furthermore, we believe that the state hasthe responsibility to determine if it hasreceived a valid request. If this statementwere retained in the Corps regulation, itwould require the Corps to determine if arequest has been submitted in accordancewith state law. To avoid this problem, wehave decided to eliminate this statement.

Section 325.2 (d) (2): Numerouscommenters expressed concern withcomment periods of less than 30 days.They were concerned that, in order toexpedite processing times. 15 day


notices would become the norm. Thesecommenters stated that 15 days wasinsufficient to prepare substantivecomments and would not allow the publicadequate participation in the permitprocess as mandated by Section 101 of theCWA. State agencies noted that, withinternal and external mail requiring asmuch as a week each for the Corps and thestate, 15 days would not provide any timefor consideration of a project. Severalcommenters noted that such expeditedreview times might actually be counter-productive, as Federal and state agenciesmight routinely oppose projects andrequest permit denial so that they wouldthen have sufficient time to review aproject and to work with an applicant toresolve conflicts. We recognize that 15days is a very short comment periodconsidering internal agency processing andmail time. We expect that commentperiods as short as 15 days would be usedonly for minor projects where experiencehas shown there would be little or nocontroversy. Some districts have beenroutinely using comment periods of lessthan 30 days (20 and 25 days) while othershave used such procedures in only alimited number of special cases. Inadopting this provision, we have modifiedthe May 12. 1983, proposal to require thedistrict engineer to consider the nature ofthe proposal, mail time, the need to obtaincomments from remote areas, commentson similar proposals, and the need for sitevisits before designating public noticeperiods of less than 30 days. Additionally,after considering the length of the originalcomment period as well as those itemsnoted above, the district engineer mayextend the comment period an additional30 days if warranted. We believe thisprovides the desired flexibility with thenecessary restraints on when to usecomment periods of less than 30 days.

Sections 325.2(e)(1) and 325.5(b) (2):Commenters supporting the use of lettersof permission (LOP) for minor section 404activities stated that applicants will realizesignificant time savings for minor requestswhile there will be no loss inenvironmental protection. Objectorsbelieve that the Corps is seekingadministrative expediency at the cost ofenvironmental protection. Issues raised bycommenters include: the legality of the404 LOP procedure without providing fornotice and opportunity for public hearing(Section 404(a) of the CWA); the legalityof issuing a permit which would becomeeffective upon the receipt or waiver of 401certification and/or a consistencycertification under the CZMA; the need tobe more definitive as to the criteria formaking a decision as to the categories ofactivities eligible for authorization under

the LOP; and the lack of coordination withFederal and state resource agencies. A fewcommenters were concerned that thenotice in the May 12, 1983, ProposedRules was insufficient because it did notgive the scope and location of the work tobe covered. The commenting states alsoindicated that the notice was insufficientfor water quality certification and coastalzone consistency determination purposes.Other commenters were concerned that,while LOP’s would be coordinated withFederal and state fish and wildlifeagencies, other resource agencies such asEPA should also review Section 404LOP’s. Based on the comments on theproposed 404 LOP procedures, we havedecided not to adopt the 404 LOPprocedures as proposed. We are notchanging § 325.5(b)(2), LOP format, norare we changing the section 10 LOPprovisions. Rather, we have revised §325.2(e)(1) to describe a separate section404 LOP process. Unlike the section 10LOP process, the section 404 processinvolves the identification of categories ofdischarges and a generic public notice.This LOP process is a type of abbreviatedpermit process which could and has beendeveloped under the July 22, 1982, interimfinal regulations. These procedures willavoid unnecessary paperwork and delaysfor many minor section 404 projects inaccordance with the intent of Section101(f) of the Clean Water Act

Section 325.7(b): We have added aprovision that, when considering amodification to a permit, the districtengineer will consult with resourceagencies when considering a change toterms, conditions, or features in which thatagency has expressed a significant interest.

Section 325.9: One commentergenerally supported this section on thedistrict engineer’s authority to determinejurisdiction but indicated that § 325.9(c)should not be adopted because it reflectsthe provisions of a Memorandum ofUnderstanding (MOU) with EPA andwould not be applicable if the MOU isrevised or deleted. We have determinedthat this paragraph is not now needed andhave decided not to adopt it.

Appendix A— Permit Form and SpecialConditionsA. Permit Form

Project Description: A comment wasreceived stating that intended use shouldbe specified for all permittedwork and not just for the fills involved. Acomment was also received suggesting thatwe be more specific on what dischargesare covered by permit authorizations. Weagree with these points and have madeappropriate changes to the instructional

material relating to project descriptions.

General Conditions

General Condition 1: Severalcommenters stated that the specified threemonth lead time on the requesting ofpermit extensions was too long. We agreewith these commenters and have,therefore, reduced this lead time fromthree to one month.

General Condition 2: One commenterrecommended that the wording of thiscondition, relating to the maintenance ofauthorized work, be modified to indicatethat restoration may be required if thepermittee fails to comply with thecondition. We agree and have modified thecondition accordingly. Another commenterstated that it would not be reasonable toenforce this condition when a permittedunderground facility is abandoned. Wegenerally agree with this statement,However, we believe the proceduresgoverning the enforcement of permitconditions are flexible enough to allow areasonable approach in such situations.

General Condition 3: One commenterindicated that this condition should bemodified to require the permittee to haltwork that could damage discoveredhistoric resources and to protect thoseresources from inadvertent damage. Thatcommenter also indicated that undercertain circumstances it would not benecessary to notify the Corps or to haltwork. This notification requirement hasbeen in effect since 1982, and thecontinuation of this requirement providesfor the Corps to be notified in a timelymanner. With this notification, the Corpscan react quickly to determine theappropriate course of action. We believethis approach has proven to be satisfactory.Therefore, this condition is being adoptedas proposed.

Proposed General Condition 4: In ourproposal, we specifically requestedcomments on this condition, which wouldrequire recording the permit on theproperty deed. More than half thecomments received were on this proposal.All but one of the commenters whoaddressed this condition were critical of itto a greater or lesser degree. Institutionalinterest observed that this condition wouldonly add to their costs, since once landswere purchased they were seldom sold.Institutional and industrial interestsobserved that permits often relate toeasements and


not to fee simple ownership and thatcompliance with the proposed condition, insuch situations, would not be possible ormeaningful in some locations. Onecommenter stated that a recordationcondition should not be necessary,provided permittees complied withproposed General Condition 5, whichrequires owners to notify the Corps whenproperty is transferred. To strengthen theproperty transfer condition, we havemodified the statement preceding thetransferee’s signature to specify that therequirement to comply with the terms andconditions of the permit moves with theproperty. One commenter stated that ageneral condition requiring recordationwhere possible would be unfair, since itwould not be uniformly applicable to allpermittees. Further coordination with ourfield offices indicates that compliance withand use of the proposed condition probablyoccurs only in a few locations. Thiscoordination also indicates that for somejurisdictions, where recordation ispossible, the cost of recordation may be sogreat that it exceeds the benefits. Giventhat recordation may not be practical orappropriate for all Corps permits, we havedeleted this general condition from thepermit form and renumbered the remaininggeneral conditions accordingly. On theother hand. the recordation requirement isappropriate and useful for many types ofstructures needing Corps permits, toprovide fundamental fairness toward futurepurchasers of real property and to facilitateenforcement of permit conditions againstfuture purchasers. For example, if theCorps were to issue a permit for a pier, thatpermit would require the owner tomaintain the pier in good condition and inconformance with the terms and conditionsof the permit. If the builder of the pierwere to allow the pier to deteriorate, hecould easily transfer the pier andassociated property with no notice to thepurchaser of the legal obligation to repairand maintain the pier, unless the permitwere recorded clong with the titledocuments relating to the associatedproperty. This failure to give notice toprospective purchasers would he unfair,and would increase the FederalGovernment’s difficulty in enforcingpermit conditions against futurepurchasers. Because of this importantnotice function, we have added arecordation condition under B. SpecialConditions, for use wherever recordation isfound to be reasonably practicable andappropriate.

General Condition 4 (Proposed GeneralCondition 5): One commenter suggestedthat this condition, relating to thetransference of the permit with theproperty, be modified to provide for notice

and approval from the Corps before thepermit is transferred. The reason given forthis suggestion was that the Corps mayhave special knowledge of the particulartransferee’s history and capabilities andmay wish to modify the terms andconditions of the permit accordingly. Thesuggested change would require theissuing office to conduct a review andprepare decision documentation every timeproperty is transferred and there is a Corpspermit involved. We believe that such areview in every case involving the transferof a permit would constitute an inefficientuse of available resources. Under theprocedures contained in 33 CFR 325.7, apermit is subject to suspension,modification, or revocation at any time theCorps determines such action is warranted.We believe this is a better approach, andhave, therefore, retained the proposedwording of this condition.

General Condition 5 (Proposed GeneralCondition 6): One commenterrecommended that this proposed condition,which relates to compliance with theprovisions of the water qualitycertification, be changed to provide for themodification of the Corps permit if EPApromulgates a revised Section 307standard or prohibition which applies tothe permitted activity. We agree thatpermits must be modified whencircumstances warrant. Proceduresgoverning modifications are contained in33 CFR 325.7, and we advise permittees ofthese procedures in item 5 (Reevaluationof Permit Decision) under the “FurtherInformation” heading. Therefore, since webelieve this potential requirement forpermit modifications is adequately coveredunder the “‘Further Information” heading,we have retained the proposed wording ofthis condition.

General Condition 8 (Proposed GeneralCondition 7): One commenter noted thatcompliance inspections should beconducted during normal working hours.As a general rule, this observation seemsreasonable. However, since we believe thatcompliance inspections will be scheduledduring normal working hours whenpossible, we have not made any changes tothe proposed wording of this condition.

Further Information

Limits of Federal Liability: Onecommenter suggested that the Governmentcould, under certain circumstances, be heldliable for damages caused by activitiesauthorized by the permit and suggestedthat Item 3, which limits the Government’sliability, be deleted in its entirety. While itis true that same courts have found theUnited States liable for damages sustained

by the owners of permitted structures or byindividuals injured in some way by thosestructures, it has never been the intent ofthe Corps to assume either type of liabilityor to insure that no interference or damageto a permitted structure will occur after ithas been built. In permitting structureswithin navigable waters, the Corps doesnot assume any duty to guarantee thesafety of that structure from damagescaused by the permittee’s work or by otherauthorized activities in the water, such aschannel maintenance dredging. This isviewed as an acceptable limitation on theprivilege of constructing a private structurefor private benefit in a public waterway,particularly since insurance is readilyavailable to protect the permittee from anydamage his structure may sustain.Accordingly, the language in Item 3 hasbeen further clarified to preclude anyinference that the Government assumesany liability for interference with ordamage to a permitted structure as a resultof work undertaken by or on behalf o theUnited States in the public interest.

Reevaluation of Permit Decision: Onecommenter recommended thatreevaluations be limited to the threecircumstances listed. Although we believethat the vast majority of the reevaluationsrequired will qualify under one of the threelisted circumstances, we cannot excludethe possibility of non-qualifying, uniquesituations where the public’s good mayrequire a reevaluation of a permit decision.Therefore, we have retained the wordingwhich states that reevaluations will notnecessarily be limited to the circumstanceslisted. Another commenter recommendedthat we add to this item that we have theauthority to issue administrative orders torequire compliance with the terms andconditions of permits and to initiate legalactions where appropriate. The proceduresgoverning these actions are contained in 33CFR 326.4 and 326.5 and reference wasmade to these procedures in the proposedwording. However, we agree that it wouldbe helpful to modify the proposed wordingto provide permittees with a betterunderstanding of our enforcement options;we have modified the text accordingly.

B. Special Conditions

One commenter suggested that SpecialCondition 5, which requires permitteesauthorized to perform certain types ofwork to provide advance notifications tothe National Ocean


Service and the Corps before beginningwork, be changed to allow verbalnotifications followed by writtenconfirmations, We have determined thatthis suggestion, if adopted, would greatlyincrease the chance of errors in noticedocuments published by the Governmentand would not be in the best interest ofmariners. Two weeks advance notice is areasonable period of time both forconstruction scheduling and forGovernment notification to mariners.Therefore, we have not adopted thissuggestion.

One commenter suggested that a specialcondition be added, for use whenappropriate, to require the permittee tocarry out a historic preservation planattached to the permit. The wording ofspecial conditions are normally determinedon a case-by-case basis. Only those thatare used often arid are subject tostandardized wording are listed inAppendix A (13. Special Conditions).While we agree that special conditions ofthis nature may be required, we do notbelieve they lend themselves sufficientlyto standardized wording to warrant addinga specific special condition to Appendix A.

Three comments were received whichrelated to General Condition (nJ on theprevious permit form. This conditionrequired the permittee to notify the issuingoffice of the date when the workauthorized would start and of anyprolonged suspensions before the workwas complete. Two of the commentersrecommended that this provision beretained as a general condition, and onecommenter recommended that it bespecified as a special condition. Ourresearch indicates that this condition, as ageneral condition applicable to allpermitted activities, has been virtuallyunenforceable in most areas and of limiteduse as a permit monitoring tool. We agreethat special conditions requiring permitteesto notify the Corps, in advance, of thedates permitted activities will start, areappropriate in certain situations. Two ofthese situations are covered by SpecialCondition 3 (maintenance dredging) andSpecial Condition 5 (charting of activitiesby National Ocean Service). Since webelieve our field offices are in the bestposition to identify any other situations inwhich similar special conditions would beappropriate, we have not adopted theserecommendations,

As discussed under Proposed GeneralCondition 4 above, we have added a sixthspecial recordation condition for use whererecordation is found to be reasonablypracticable.

General: In addition to several editorialchanges, we have added definitions for theword “‘you” and its derivatives and the

term “‘this office” at the beginning of thepermit form. We have substituted the term“this office” for references to the districtengineer throughout the form.

Part 326— EnforcementGeneral: Three commenters objected to

what they perceived as a lack of specificrequirements and recommended that theword “‘should” be changed to “shall”throughout Part 326. Another commenterstated that the proposed regulations weretoo specific and recommended that asignificant amount of the procedures inthis Part be deleted and addressed ininternal guidance. The word “should,”where used, allows district engineers tobase their enforcement actions on anassessment of what is the best approach ona case-by-case basis. The word “shall’”would require district engineers toimplement specified actions even thoughsuch actions may be obviouslyinappropriate in relation to a particularcase. We believe this flexibility isappropriate and have, therefore, retainedthe word “should” in most of the placeswhere it occurred in the proposedregulations. However, the word “will” isused at various places in this Part whereflexibility is not appropriate. We believethat the proposed language achieves aproper balance between the providing ofnecessary guidance and flexibility.

Finally, one commenter suggested thatPart 326 be rewritten to include only tworequirements: orders for immediaterestoration of filled wetlands and referralsfor legal action if these orders are notcomplied with. When Congress establishedthe Corps regulatory authorities, it allowedfor the issuance of permits. To ignore theissuance of permits as one means ofresoIving violations would beinappropriate.

Section 326.1: As a result of furtherinternal coordination, we have determinedthat it would be appropriate to make itclear that nothing in this Part establishes anon-discretionary duty on the part of adistrict engineer. Further, nothing in thisPart should be considered as a basis for aprivate right of action against a districtengineer. Therefore, we have modified thisparagraph accordingly.

Section 326.2: One commenterrecommended that this statement ofgeneral enforcement policy be expanded toprovide priority guidance on enforcementactions. Two other commentersrecommended strengthening of thisparagraph, with one recommending that itcite the firm and fair enforcement of thelaw to prohibit and deter damage, torequire restoration, and to punish violatorsas the purpose of the Corps enforcement

program. In that we refer in this paragraphto unauthorized activities, we are reflectingthe fact that these activities areunauthorized and subject to enforcementactions pursuant to the legal authoritiescited at the beginning of this Part. Further,the other recommended changes wouldsimply duplicate the discussions ofenforcement methods and proceduresalready contained in § § 326.3, 326.4. and326.5. However, we have added astatement to this provision to reflect thefact that EPA has independentenforcement authorities under the CleanWater Act, and thus, district engineersshould normally coordinate with EPA.

Section 326.3(b): One commenterrecommended that this paragraph beamended to require the establishment ofnumbered file systems for violations. MostCorps districts already assign controlnumbers to enforcement actions, and sincethis is an administrative function, we havedetermined that it would be inappropriateto include this requirement in a Federalregulation designed to provideenforcement policy.

Section 326.3(c) (2): One commentersuggested rewording of this paragraph tomake it clear that a violation involving acompleted activity may or may not beresolved through the issuance of a Corpspermit. The reference in the proposedwording to not initiating ‘“any additionalwork before obtaining requiredDepartment of the Army authorizations”apparently led to the commentermisunderstanding this paragraph. Theintent of this wording related to warning aviolator not to initiate work on otherprojects before obtaining required Corpspermits. Since the violator is in the processof being made aware of the legalrequirements for obtaining Corps permits,we have determined that this warning isunnecessary and have, therefore, deleted it.

Section 326.3 (c) (3): One commenterrecommended that this paragraph beamended to indicate that the informationrequested will also be used for determiningwhether legal action is appropriate inaddition to determining what initialcorrective measures may be required. Weagree that the information obtained fromviolators may provide a basis forenforcement decisions other than thoserelating to interim corrective measures.Therefore, we have revised this provisionto provide for notifying violators ofpotential enforcement consequences andfor the more generalized use of theinformation provided by violators in the


identification of appropriate enforcementmeasures.

Section 326.3(c) (4): One commenterrecommended that this provision bereworded to indicate that the limitations onunauthorized work of an emergency natureare to be established in conjunction withFederal and state resource agencies. Webelieve it is understandable that actions ofthis type will be completed on anexpedited basis with the procedures in §326.3(c— d) being followed concurrently.Since § 326.3(d) already provides forinteragency consultations, in appropriatecases, we do not believe it is necessary toduplicate that guidance in this provision.

Section 326.3 (d) (1): One commenterrecommended that “initial correctivemeasures” be defined as measures “whichsubstantially eliminate all current andfuture detrimental impacts resulting fromthe unauthorized work.” This commenteralso recommended that the procedures in33 CFR 320.4 and 40 CFR Part 230 bereferenced for use in determining what‘“initial corrective measures” are required.Essentially, this commenter isrecommending that all violators be denieda Corps authorization and required toundertake full corrective measures in theinitial stage of an enforcement action. Thiswould not be a reasonable or practicalapproach, since it would eliminate publicparticipation and would result in theremoval of work that may have beenpermitted under normal circumstances.Another commenter objected to thestatement that further enforcement actions‘“should normally” be unnecessary if theinitial corrective measures substantiallyeliminate all current and future detrimentalimpacts. This commenter sees thisprovision as barring legal action inappropriate cases such as those involvingwillful, flagrant, or repeated violations.This is not the case. To say that suchcorrective measures “should normally”resolve a violation does not mean that theywill “always” resolve a violation. Anothercommenter stated that consultations withthe Fish and Wildlife Service and theNational Marine Fisheries Service shouldbe made mandatory in this paragraphpursuant to the Fish and WildlifeCoordination Act. The reason given wasthat this provision would result in theissuance of permits which would requiresuch consultations. This paragraph dealswith initial corrective measures and notwith the issuance of permits. Theseagencies will be given an opportunity tocomment in response to a public noticebefore any decision is made on an after-the-fact permit application. In view of theabove discussion, we have retained theproposed wording of this paragraph.

Section 326.3(d) (2): One commenterrecommended that this paragraph bedeleted on the basis that it provided thedistrict engineer with too much discretionand questioned the cross-reference to §326.3(3). This paragraph was intended toprovide guidance to district engineers insituations involving prior initiations oflitigation or denials of essentialauthorizations or certifications by otherFederal, state or local agencies. We believedistrict engineers should have thediscretionary authority to determine whatis a reasonable and practical course ofaction for the Corps under thesecircumstances. However, we have revisedthis paragraph to clarify its intent and tocorrect the cross-reference.

Section 328.3(d)(3): As a result offurther review within the Corps, we havedetermined that the provision proposed as§ 326.3(e)(1)(i), which states that it is notnecessary to issue a Corps permit forinitial corrective measures, should bemoved to § 326.3(d) to more appropriatelyreflect the sequence of enforcementprocedures. Therefore, we have modifiedthis provision and established it as new §326.3(d)(3).

Section 326.3(e): One commenterobjected to the after-the-fact permitprocess, and observed that the process wasgenerally seen as a mechanism to avoidcompliance with the law. Exceptions to theprocessing of after-the-fact permitapplications are contained in §326.3(e)(i— iv). However, in most cases,the public participation associated with theprocessing of an application is necessarybefore a violation can be appropriatelyresolved.

Section 326.3(e) (1): One commenterrecommended that this paragraph beamended to specify the criteria for legalaction and to require that public noticesassociated with after-the-fact permitapplications clearly identify that aviolation is involved. The criteria for legalactions are given in § 326.5(a), and permitdecisions are based on whether an activitycomplies with the section 404(b)(1)Guidelines, where applicable, and onwhether it is or is not found to be contraryto the public interest. Permit decisions arenot based on whether a permit applicationis before or after-the-fact. We have,therefore, retained the proposed wordingof this paragraph.

Proposed Section 326.3(e)(1)(i): Wehave deleted this provision here and havemoved a modified version of it to new §326.3(d)(3); see discussion under §326.3(d)(3).

Section 326.3(e)(1)(i)— Proposed as326.3 (e)(1)(ii): This provision indicatesthat the processing of an after-the-factpermit application will not be necessary“when” detrimental impacts have beeneliminated by restoration. One commenterrecommended that district engineers berequired to consult with EPA beforedetermining that restoration has beencompleted that eliminates current andfuture detrimental impacts. We haveaddressee this comment by modifying §326.2 and § 326.3(g) to provide for suchcoordination when the district engineer isaware of an enforcement action beingconsidered by EPA under its independentenforcement authorities. Anothercommenter observed that the word “when”appeared to be in error and recommendedsubstituting the word “unless.” This wouldindicate that the Corps should process anafter-the-fact permit application only afterrestoration had taken place and there is nowork requiring a permit. This obviouslywould not be reasonable. In view of theabove discussion, we have retained theproposed wording of this provision.

Section 326.3(e)(1)(iii)— Proposed as326.3(e)(1)(iv): One commenterrecommended that a provision be added tothis paragraph to prohibit the acceptance ofan application for a Corps permit where anactivity is not in compliance with otherFederal, state, or local authorizations orcertifications. In essence, this amounts torequiring district engineers to take steps toenforce the terms and conditions ofanother agency’s authorization orcertification. We believe this is the issuingagency’s responsibility and not theresponsibility of the Corps. Of course,where that other agency has denied arequisite authorization, the Corps wouldnot accept an application for processing.

Section 326.3(e)(1)(iv)— Proposed as326.3(e)(1)(v): Two commentersrecommended rewording of this paragraphto prohibit the acceptance or processing ofany after-the-fact permit application whenthe Corps is aware of litigation or otherenforcement actions that have beeninitiated by other Federal, state or localagencies, We believe the Corps should, inappropriate situations, be able to takepositions on cases that are in conflict withthe viewpoints of other agencies.Therefore, we have retained the wordingof this paragraph essentially as proposed.However, since EPA has independentenforcement authorities, we have providedfor coordination with EPA in §§ 326.2 and326.3(g).

Section 326.3(g): One commenterindicated that this paragraph shoulddelineate EPA’s responsibility over


recognizing and reporting unpermitteddischarges. This paragraph deals only withcases where EPA is considering anenforcement action. The reporting ofviolations is covered under § 326.3(a).Another commenter recommended thatthis paragraph be reworded to ensure thatCorps actions under Part 326 are not inconflict with EPA enforcement actions.Another commenter, a state agency,suggested that this provision be expandedto require similar consultations with stateagencies that have initiated enforcementactions. The reason we have provided forconsultations with EPA in this paragraph isdue to the fact that both the Corps andEPA have overlapping authorities pursuantto the Clean Water Act. This is not thecase with state agencies. Nevertheless, webelieve district engineers will wish toconsult with state agencies in appropriatecircumstances. In any event, as we statedin our discussion relating to the wording of§ 326.3(e)(iv), we believe the Corpsshould have the right to take a position thatmay conflict with another agency’sviewpoint. However, we have revised thisprovision to emphasize that districtengineers should coordinate with EPAwhen they are aware of enforcementactions being considered by EPA under itsindependent enforcement authorities.

Section 326.4(a-b): As a result of furtherinternal coordination, we have determinedthat § 326.4(a) should make it clear thatdistrict engineers have the discretionaryauthority to determine when the inspectionof permitted activities is appropriate. Wehave modified § 326.4(a) accordingly. Inaddition, we have added a new § 326.4(b)to further discuss inspection limitations,

Section 326.4(d)— Proposed as 326.4(c):One commenter, a state agency, objectedto the provisions in this paragraph forattempting to obtain voluntary compliancebefore issuing a formal compliance order.The rationale given was that the absence ofa formal order would make coordinationbetween the Corps and the state difficult.Another state agency recommendedconsultations with state agencies and withEPA. The proposed, noncomplianceprocedures do not prohibit earlycoordination with other regulatoryagencies, when appropriate, andpresumably, if the permittee quickly bringsnis work into compliance, suchcoordination should not be necessary.

One commenter objected to allowing adistrict engineer to issue a complianceorder and to not making the use of Corpssuspension/revocation procedures or legalactions mandatory. Another commenterrecommended that suspension/ revocationprocedures or legal actions be mademandatory if a violator fails to complywith a compliance order. The issuance of a

compliance order is provided for in section404(s) of the Clean Water Act, and in mostcases, we believe that the methodsavailable for obtaining voluntarycompliance should be used beforediscretionary consideration is given tousing the Corps suspension/ revocationprocedures or initiating legal action.

Another commenter objected to the term‘“significantly serious to require anenforcement action” on the basis that allviolations are worthy of some enforcementaction. Minor deviations from the termsand conditions of a Corps permit may notalways warrant an enforcement action. Forexample, would a dock authorized to beconstructed with a length of 50 feet butinadvertently constructed with a length of51 feet constitute a violation warranting anenforcement action? We agree there maybe extenuating circumstances, such as theadditional length of the dock being justenough to impact the water access of aneighbor. However, this is a judgment thatis best made by the district engineerinvolved.

One Commenter objected to the term“mutually agreeable solution” on the basisthat such a solution could invalidate theprior results of coordination with resourceagencies. Since this term refers to bringingthe permitted activity into compliance orthe resolution of the violation with apermit modification using the modificationprocedures in 33 CFR 325.7(b), suchresolutions would not invalidate priorcoordination. In view of the abovediscussion, we have retained the proposedwording of this paragraph.

Section 326.5 (a): One commenterrequested that the words ‘“willful” and“repeated” be deleted from this paragraph,the rationale being, apparently, that mostviolators are not repeat or willful offendersand that the Corps should take the oneopportunity it has to bring legal actionagainst these one-time violators. We donot agree with this approach as beingeither reasonable or practical. Anothercommenter recommended addingviolations that result in substantial impactsto the list of violations that should beconsidered appropriate for legal action. Weagree with this recommendation and havemodified the wording of this provisionaccordingly.

Section 320.5(c): One commenterrecommended rewording of this paragraphto require that copies be provided to EPAof Corps referrals to local U.S. Attorneys.We believe it would be more appropriateto address matters relating to the detailedaspects of interagency coordination ininteragency agreements. Therefore, wehave retained the proposed wording of thisparagraph.

Section 326.5(d) (2): As a result offurther internal coordination, we havedetermined that litigation cases involvingisolated water no longer need to bereferred to the Washington level on aroutine basis. Therefore, we have deletedthis provision.

Section 326.5(e): One commenterrecommended that the word “may” bereplaced with the words ‘“encouraged to”in the provision relating to sendinglitigation reports to the Office of the Chiefof Engineers when the district engineerdetermines that an enforcement casewarrants special attention and the localU.S. Attorney has declined to take legalaction. We agree with thisrecommendation and have made thechange.

Another commenter suggested thatwording be aided to this paragraph toaddress circumstances in which permitsare not required. The fact that a legaloption may not be available does not meanthat a permit is not required. If the districtengineer chooses to close the case record,the activity in question will still beunauthorized and therefore illegal. Suchunauthorized activities will be taken intoaccount if the responsible parties becomeinvolved in future violations. Onecommenter suggested that Corps attorneysinitiate legal actions as an alternative toactions by local U.S. Attorneys. However,the Corps does not have the authorityunder existing Federal laws to initiate legalactions on its own.

Another commenter recommended thatthis paragraph be modified to provide forjoint Federal/state prosecution of violators.Since this involves discretionary decisionson the part of the Department of Justice, itwould not be appropriate to include aprovision of this nature in the Corpsenforcement regulations,

Part 328— Definition of Waters of theUnited States

This part is being added in order toclarify the scope of the Section 404 permitprogram. This part was added in directresponse to many concerns expressed byboth the public and the Presidential TaskForce on Regulatory Relief. We have notmade changes to existing definitions;however, we have provided clarificationby simply setting


them apart in a separate and distinct Part328 of the regulation.

The format for Part 328 has beenchanged slightly from the proposedregulation in order to improve clarity andreduce duplication. The content of theproposed § 328.2 “General Definitions”has been partially combined with § 328.3“Definitions.” The remainder has beenreestablished as § 328.5, “Changes inLimits of Waters of the United States.”Section 328.2 has been established as“General Scope.” The proposed § § 328.4and 328.5 have been combined into §328.4 and renamed “Limits ofJurisdiction.”

A number of commenters appeared tohave misinterpreted the intent of this part.Many thought we were trying to reduce thescope of jurisdiction while others believedwe were trying to expand the scope ofjurisdiction. Neither is the case. Thepurpose was to clarify the scope of the 404program by defining the terms inaccordance with the way the program ispresently being conducted.

Section 328.3: Definitions. This sectionincorporates the definitions previouslyfound in § 323.3 (a), (c), (d), (f) and (g).Paragraphs (c), (d), (f) and (g) wereincorporated without change. EPA hasclarified that waters of the United States at40 CFR 328.3(a)(3) also include thefollowing waters:

a. Which are or would be used as habitatby birds protected by Migratory BirdTreaties; or

b. Which are or would be used as habitatby other migratory birds which cross statelines; or

c. Which are or would be used as habitatfor endangered species; or

d. Used to irrigate crops sold ininterstate commerce.

For clarification it should be noted thatwe generally do not consider the followingwaters to be “Waters of the United States.”However, the Corps reserves the right on acase-by-case basis to determine that aparticular waterbody within thesecategories of waters is a water of theUnited States. EPA also has the right todetermine on a case-by-case basis if any ofthese waters are “‘waters of the UnitedStates.”

(a) Non-tidal drainage and irrigationditches excavated on dry land.

(b) Artificially irrigated areas whichwould revert to upland if the irrigationceased.

(c) Artificial lakes or ponds created byexcavating and/or diking dry land tocollect and retain water and which are usedexclusively for such purposes as stockwatering, irrigation, settling basins, or ricegrowing,

(d) Artificial reflecting or swimming

pools or other small ornamental bodies ofwater created by excavating and/or dikingdry land to retain water for primarilyaesthetic reasons.

(e) Waterfilled depressions created indry land incidental to construction activityand pits excavated in dry land for thepurpose of obtaining fill, sand, or gravelunless and until the construction orexcavation operation is abandoned and theresulting body of water meets thedefinition of waters of the United States(see 33 CFR 328.3(a)).

The term “navigable waters of theUnited States” has not been added to thissection since it is defined in Part329.

A number of comments were receivedconcerning the proposed change to thedefinition of the terms “‘adjacent” and theproposed definitions for the terms“inundation”, ‘“saturated”, “prevalence”,and “typically adapted.” A number ofcommenters believed that these terms maybetter define the scope of jurisdiction ofthe section 404 program, but suchdefinitions should more rightfully bewithin the province of the EnvironmentalProtection Agency in order to remainconsistent with the opinion of BenjaminCiviletti, Attorney General (September 5,1979). These definitions would require theprior approval of the EnvironmentalProtection Agency, which has not beenforthcoming. Therefore, these newproposed definitions will not be adopted atthis time.

To respond to requests for clarification,we have added a definition for “tidalwaters.” The definition is consistent withthe way the Corps has traditionallyinterpreted the term.

Section 328.4: Limits of Jurisdiction.Section 328.4(c)(1) defines the lateral limitof jurisdiction in non-tidal waters as theordinary high water mark provided thejurisdiction is not extended by the presenceof wetlands. Therefore, it should beconcluded that in the absence of wetlandsthe upstream limit of Corps jurisdictionalso stops when the ordinary high watermark is no longer perceptible.

Section 328.5: Changes in Limits ofWaters of the United States. This sectionwas changed to reflect both natural andman-made changes to the limits of watersof the United States. This change wasmade for clarification and resulted fromconsultation with the EnvironmentalProtection Agency.

Section 328.6: SupplementalGlorification. Most commenters favoredthe Corps plans to give specialconsideration to unique areas such asArctic Tundra that do not easily fit the

generic” wetlands definition. Severalcommenters indicated that the Corpsshould clarify its intended use of thissection, and one questioned the need to“describe” unique areas in the FederalRegister. A number of commentersindicated that criteria should be specifiedfor determining wetland types to beincluded as unique areas. Somecommenters stated that close coordinationbetween the Corps and the EnvironmentalProtection Agency will be necessary whenselecting unique areas and developingprocedures for making wetlanddeterminations in such areas, since theEnvironmental Protection Agency has thefinal authority to determine the scope of‘“Waters of the United States.”

While we believe that supplementalclarification of unique areas will be apositive step in clarifying the scope ofjurisdiction under the section 404 permitprogram, we have determined that suchsupplemental clarification can be doneunder existing regulations of theEnvironmental Protection Agency and theCorps and therefore have deleted thissection.

Part 329— Definition of Navigable Watersof the United States

We are currently planning to propose acomplete revision of Part 329 in the nearfuture, to simplify and clarify theprocedures involved, while retaining theessential aspects of the relevant policy. Inthe interim, we are making the two minorchanges discussed below.

Section 329.11: This section has beenmodified to clarify that the lateral extent ofjurisdiction in rivers and lakes extends tothe edge of all such waterbodies as it doesin bays and estuaries (§ 329.12(b)).

Section 329.12(a): This section has beencorrected to reflect that the territorial seas,for the purpose of Rivers and Harbors Actof 1899 jurisdiction, extend 3 geographicmiles everywhere and are measured fromthe baseline.

Part 330— Nationwide Permits We arereissuing the 26 nationwide

permits at § 330.5(a) as modified andconditioned. The nationwide permits willbe in effect for 5 years beginning with theeffective date of this regulation, unlesssooner revised or revoked.

Section 330.1: This section wasrestructured and updated in order toimprove its readability and technicalaccuracy. The definition concerning thedivision engineer’s discretionary authoritywas deleted from this section since similarlanguage appears in § 330.2. “Definitions.”The discussion concerning theapplicability of nationwide permits as theyrelate to


other Federal, state, and localauthorizations was deleted from thissection and relocated to § 330.5(d)“Further Information.”

Section 330.2: The definition of theterm “‘headwaters” was deleted from Part323 and relocated to § 330.2(b), since thedefinition is used as part of the nationwidepermit program. The definition of the term“‘natural lake” which was proposed at §330.2(c) has been deleted. Changes to the“headwaters”/’”isolated waters”nationwide permit which is found at §330.5(a)(26) have obviated the need forthis definition.

Section 330.5: In order to better informthe public of the statutory authority underwhich each nationwide permit has beenissued, we have added the authority byparenthetical expression at the end of eachnationwide permit.

We had proposed nationwide permitsfor activities funded or authorized byanother Federal agency or department andfor activities adjacent to Corps ofEngineers civil works projects. Mostcommenters discussed the two proposednationwide permits together. The mostfrequent comments questioned whetherthey would comply with section 404(e) ofthe CWA. They believed these nationwidepermits could authorize a wide variety ofFederal projects that would not be similarin nature and projects which could havesignificant adverse environmental impactson aquatic resources. Numerouscommenters stated that the Corps would bedelegating its 404(b)(1) complianceresponsibilities to other agencies and thatthere is a natural tendency of suchagencies to be self-serving. Manycommenters, including some states,objected that the public and other agencieswould not have an opportunity to reviewsome large individual projects. Manycommenters encouraged the adoption ofthese nationwide permits: in most casesthey based their opinion upon reduction induplication and the expediting of projectauthorization. Based on the commentsreceived we have decided that clarificationof activities that could be covered bynationwide permits would be necessary toinsure proper understanding and fieldapplication. Because of the complexity ofdoing this and an evaluation of thecomments received, we have decided notto adopt these two nationwide permits.

Section 330.5(a)(3): This nationwidepermit for repair, rehabilitation, orreplacement of existing structures or fillhas been clarified to show that beachrestoration is not authorized by thisnationwide permit.

Section 330.5(a)(6): This nationwidepermit for survey activities was clarified toshow that it does not authorize the drillingof exploration-type bore holes for oil andgas exploration.

Section 330.5(o) (7): This nationwidepermit for outfall structures was clarifiedby adding language concerning minorexcavation, filling and other work which isroutinely associated with the installation ofintake and outfall structures.

Section 330.5(a)(18): This nationwidepermit for discharges up to 10 cubic yardswas clarified by indicating that it does notauthorize discharges for the purpose ofstream diversion. The footnote was deletedbecause it was redundant with the terms ofthe nationwide permit itself.

Section 330.5(a) (1 9): This nationwidepermit for dredging up to 10 cubic yardswas clarified by indicating that it does notauthorize the connection of canals or otherartificial waterways to navigable waters ofthe United States.

Section 330.5(a) (22): This nationwidepermit for the removal of obstructions tonavigation was clarified by indicating thatit does not authorize maintenancedredging, shoal removal, or riverbanksnagging.

Section 330.5(b) (3): This condition forthe protection of endangered species wasmodified to set forth more clearly optionsavailable to the district engineer to satisfysection 7 of the Endangered Species Actwhen it has been determined that anactivity may adversely affect any listedendangered species or its critical habitat.

Section 330.5(b) (7): This condition forthe protection of wild and scenic riverswas modified to define more clearlycomponents of the National Wild andScenic River System by showing that itincludes any Congressionally designated“study river.”

Section 330.5(b) (9): This condition forthe protection of historic properties wasadded in response to numerous commentswhich expressed concern for an apparentlack of consideration which was beinggiven historic properties. This conditionoutlines the procedures to be followed byboth the permittee and the district engineerto provide for modification, suspension, orrevocation of a nationwide permit orcontact with the Advisory Council onHistoric Preservation if an activityauthorized by a nationwide permit mayadversely affect an historic property.

Section 330.5(b)(1C): This condition

was added as a result of comments whichexpressed concern that activitiesperformed under the nationwide permitscould impair reserved tribal rights.

Section 330.5(b) (11) and (12): Theseconditions were adopted as proposed. Theyprovide notification to the public that,within certain states, authorization for theactivity may have been denied withoutprejudice as a result of state 401 waterquality certification denial ornonconcurrence with Coastal ZoneManagement consistency. Theseconditions trigger the provisions of §§330.9 and 330.10.

Section 330.5(b)(13): This conditionwas added to alert the public that regionalconditions may have been added by thedivision engineer in accordance with §330.8(a).

Section 330.5(c): The Grandfatheringprovision included in the October 5, 1984,final regulations expires on April 5, 1986,before the effective date of theseregulations and is, therefore, no longerneeded and has been deleted. A newparagraph has been added to provide thepublic further information on nationwidepermits as they relate to such things ascompliance with conditions, other requiredauthorizations, property rights, Federalprojects, and revised or modified waterquality standards.

Section 330.5(d): This paragraph hasbeen added to clarify that the Chief ofEngineers has the authority to modify,suspend, or revoke any nationwide permit.

Some states indicated in their commentsthat there might be other ways to reduceburdens on the public within their stateother than the nationwide permits. Onestate suggested that it might be appropriateto revoke all the nationwide permits infavor of regional permits subject tointeragency review. The authority existsfor the Chief of Engineers to revoke someor all of the nationwide permits within astate. There are also existing provisions inthe regulations for district engineers andthe states to develop a permit systemdesigned around specific state authorities.These existing provisions include regionalgeneral permits, programmatic generalpermits, transfer of the 404 program (see33 CFR 323.5), joint processing, permitconsolidation, preapplication consultationand special area management planning.Before adopting a permit system designedaround specific state authorities, a publicnotice providing an opportunity for apublic hearing would be issued outliningthe proposed permit system within thestate and the proposal to revoke thenationwide permits. If such a system isdeveloped, the Chief of Engineers willconsider revoking all or most of thenationwide permits within a state.


Section 330.8(a): The concept of case-by-case regional conditioning authorityreceived overwhelming support. This newparagraph allows the division engineerthrough discretionary authority to addactivity specific conditions to nationwidepermits on a case-by-case basis. Thedistrict engineer may do the same whenthere is mutual agreement with thepermittee or when conditions are necessarybased on conditions of a state 401certification.

Section 330.8(c): This paragraph wasmodified to clarify that, although thedivision engineer has used discretionaryauthority to require individual permits, hemay subsequently allow the activity to beauthorized by nationwide permit if theimpediment to using the nationwidepermit, which triggered the discretionaryauthority, has been removed.

Section 330.8(c) (2): This paragraph hasbeen modified to allow division engineersthe discretionary authority to requireindividual permits for categories ofactivities or specific geographic areas. Thisauthority was previously exercised by theChief of Engineers. However, the Chief ofEngineers is retaining this authority on astatewide or nationwide basis.

Section 330.9: Many commentersobjected to the issuance of nationwidepermits when a state denies 401certification. Their objections were basedon the Clean Water Act requirement that“No license or permit shall be granted untilthe certification . . . has been obtained orhas been waived.” Commenters expressedstrong concerns about the validity of suchpermits, and stated that issuance wouldconstitute a de facto transfer of theadministration of this portion of the 404permit program to the objecting states. Anattendant concern was that, if states wereunable to respond within the time specifiedby the Corps, a waiver would bepresumed, and the nationwide permitwould become effective, whether or notthis would have been the intent of thestate. Some commenters suggested thatstates would be forced to denycertifications because of inadequate timeto ensure that proposed activities wouldnot violate water quality standards. Mostcommenters opposed district engineershaving discretionary authority overconditions to the 401 certification. Onecommenter believes this authority conflictswith states’ rights. Another suggested thatthe proposed action could prod states intoadopting thef” own wetland laws andregulatory programs. Several commenterssupported the proposal, stating that it was ameans of preserving the utility of thegeneral permit program.

Section 330.9 has been modified to

provide that, if a state denies a required401 certification for a particularnationwide permit, then authorization forall discharges covered by the nationwidepermit within the state is denied withoutprejudice until the state issues anindividual or generic water qualitycertification or waives its right to do so.We did not adopt the 30 day waiver periodbut rather will rely on the language at§325.2(b)(1) which defines a reasonableperiod of time. This section was alsomodified to notify the public that thedistrict engineer will include conditions ofthe 401 water quality certification asspecial conditions of the nationwidepermit.

Section 330.9(b): This subsection hasbeen added to notify the public of thecertification requirements of the variousnationwide permits.

Section 330.10: A number of coastalstates commented that consistencydetermination or waiver thereof must havebeen obtained prior to the promulgation ofthe nationwide permits. Some commentersasserted that such a requirement is not astatutory prerequisite to permit issuance.Others contend that assuming a waiver ofcertification preempts the individual state’sauthority and thwarts Congressional intentthat the permit process involves oversightby the state as well as Federal agencies.

Section 330.10 has been modified tostate that, in certain instances where a statehas not concurred that a particularnationwide permit is consistent with itscoastal zone management plan,authorization for all activities subject tosuch nationwide permit within or affectingthe state coastal zone agency’s area ofauthority is denied without prejudice untilthe applicant has furnished to the districtengineer a coastal zone managementconsistency determination pursuant tosection 307 of the Coastal ZoneManagement Act and the state has eitherconcurred in that determination or waivedits right to do so.

Section 330.11: This subsection wasadded to clarify existing procedures toestablish a time limit in which a permitteemay rely on confirmation from the districtengineer that an activity is covered by anationwide permit, and to specifyprocedures to modify, suspend, or revokethe permittee’s right to proceed under thenationwide permit after the districtengineer notified the permittee that theactivity may proceed.

Section 330.12: This subsection wasmodified to provide a twelve monthtransition period for projects which may beaffected by future changes in nationwide

permits. After considering equityestablished in reliance on the nationwidepermit and that the public will in alllikelihood receive ample notice ofproposed changes, we believe that thistransition period is both reasonable andequitable. In addition, if necessary on acase-by-case basis we can, even thoughthere is a grandfather provision, exercisediscretionary authority pursuant to § 330.8or modify, suspend or revoke individualauthorization pursuant to 33 CFR 325.7.

State Certification of Nation wide Permits

Most states have issued or waived 401certification and/or Coastal ZoneManagement consistency concurrence forone or more of the twenty six nationwidepermits. Many states have issued aconditional certification and some havedenied certification! consistencyconcurrence. Final action is still pending insome of the states but is imminent. Theprimary mechanism for keeping the publicinformed of the status and/or changes instate certifications or Coastal ZoneManagement consistency concurrence willbe public notices issued by the districtengineers within the affected states. Thedistrict engineers will be issuing publicnotices concurrent with the publication ofthese regulations. Subsequent notices willbe issued as changes occur.

Listed below are those states which, asof the date of this printing, have eitherdenied or conditionally issued 401certification and/or coastal zonemanagement consistency concurrence forone or more of the nationwide permits. Formore current and detailed information youshould consult with the appropriate districtengineer.

Alaska, California, Connecticut, Florida,Hawaii, Illinois, Iowa, Louisiana, Maine,Maryland, Massachusetts, Michigan,Minnesota, Mississippi, Missouri,Nebraska, New Hampshire, New Jersey,New York, North Carolina, Pennsylvania,Rhode Island, South Carolina, Tennessee,Vermont, Washington, West Virginia andWisconsin. Determinations underExecutive Order 12291 and the RegulatoryFlexibility Act. The Department of theArmy has determined that the revisions tothese regulations do not contain a majorproposal requiring the preparation of aregulatory analysis under E.O. 12291. TheDepartment of the Army certifies, pursuantto section 605(b) of the RegulatoryFlexibility Act of 1980, that theseregulations will not have a significanteconomic impact on a substantial numberof entities.


Note 1.— The term “he” and its derivativesused in these regulations are generic andshould be considered as applying to bothmale and female.

List of Subjects

33 CFR Part 320Environmental protection,

Intergovernmental relations, Navigation,Water pollution control, Waterways.

33 CFR Part 321Dams, Intergovernmental relations,

Navigation, Waterways.

33 CFR Part 322Continental shelf, Electric power,

Navigation, Water pollution control,Waterways.

33 CFR Part 323Navigation, Water pollution control,

Waterways.

33 CFR Part 324Water pollution control.

33 CFR Part 325Administrative practice and procedure,

Intergovernmental relations,Environmental protection, Navigation,Water pollution control, Waterways.

33 CFR Part 326Investigations, Intergovernmental

relations, Law enforcement, Navigation,Water pollution control, Waterways.

33 CFR Part 327Administrative practice and procedure,

Navigation, Water pollution control,Waterways.


Waterways.

33 CFR Part 329Waterways.


Waterways.Dated: November 4, 1986, Robert K.

Dawson, Assistant Secretary of the Army(Ci vil Works).

Accordingly, the Department of theArmy is revising 33 CFR Parts 320, 321,322, 323, 324, 325, 326, 327, 329, and 330and adding Part 328 to read as follows:

PART 320— GENERAL REGULATORYPOLICIES

Sec.320.1Purpose and scope.320.2Authorities to issue permits.

320.3Related laws.Sec.320.4General policies for evaluating

permit applications.Authority: 33 U.S.C. 401 et seq.; 33

U.S.C. 1344; 33 U.S.C. 1413.

§ 320.1 Purpose and scope.(a) Regulatory approach of the Corps of

Engineers. (1) The U.S. Army Corps ofEngineers has been involved in regulatingcertain activities in the nation’s waterssince 1890. Until 1968, the primary thrustof the Corps’ regulatory program was theprotection of navigation. As a result ofseveral new laws and judicial decisions,the program has evolved to one involvingthe consideration of the full public interestby balancing the favorable impacts againstthe detrimental impacts. This is known asthe “public interest review.” The programis one which reflects the national concernsfor both the protection and utilization ofimportant resources.

(2) The Corps is a highly decentralizedorganization. Most of the authority foradministering the regulatory program hasbeen delegated to the thirty-six districtengineers and eleven division engineers. Ifa district or division engineer makes a finaldecision on a permit application inaccordance with the procedures andauthorities contained in these regulations(33 CFR Parts 320— 330), there is noadministrative appeal of that decision.

(3) The Corps seeks to avoidunnecessary regulatory controls. Thegeneral permit program described in 33CF’R Parts 325 and 330 is the primarymethod of eliminating unnecessary federalcontrol over activities which do not justifyindividual control or which are adequatelyregulated by another agency.

(4) The Corps is neither a proponent noropponent of any permit proposal.However, the Corps believes thatapplicants are due a timely decision.Reducing unnecessary paperwork anddelays is a continuing Corps goal.

(5) The Corps believes that state andfederal regulatory programs shouldcomplement rather than duplicate oneanother. The Corps uses general permits,joint processing procedures, interagencyreview, coordination, and authoritytransfers (where authorized by law) toreduce duplication.

(6) The Corps has authorized its districtengineers to issue formal determinationsconcerning the applicability of the CleanWater Act or the Rivers and Harbors Actof 1899 to activities or tracts of land andthe applicability of general permits orstatutory exemptions to proposedactivities. A determination pursuant tothis authorization shall constitute a Corpsfinal agency action. Nothing contained inthis section is intended to affect any

authority EPA has under the Clean WaterAct.

(b) Types of activities regulated. ThisPart and the Parts that follow (33 CFRParts 321— 330) prescribe the statutoryauthorities, and general and specialpolicies and procedures applicable to thereview of applications for Department ofthe Army (DA) permits for controllingcertain activities in waters of the UnitedStates or the oceans. This part identifiesthe various federal statutes which requirethat DA permits be issued before theseactivities can be lawfully undertaken; andrelated Federal laws and the generalpolicies applicable to the review of thoseactivities. Parts 321— 324 and 330 addressspecial policies and procedures applicableto the following specific classes ofactivities:

(1) Dams or dikes in navigable waters ofthe United States (Part 321);

(2) Other structures or work includingexcavation, dredging, and/or disposalactivities, in navigable waters of theUnited States (Part 322);

(3) Activities that alter or modify thecourse, condition, location, or capacity of anavigable water of the United States (Part322);

(4) Construction of artificial islands,installations, and other devices on theouter continental shelf (Part 322);

(5) Discharges of dredged or fillmaterial into waters of the United States(Part 323);

(6) Activities involving thetransportation of dredged material for thepurpose of disposal in ocean waters (Part324); and

(7) Nationwide general permits forcertain categories of activities (Part 330).

(c) Forms of authorization. DA permitsfor the above described activities areissued under various forms ofauthorization. These include individualpermits that are issued following a reviewof individual applications and generalpermits that authorize a category orcategories of activities in specificgeographical regions or nationwide. Theterm “general permit” as used in theseregulations (33 CFR Parts 320— 330)refers to both those regional permits issuedby district or division engineers on aregional basis and to nationwide permitswhich are issued by the Chief of Engineersthrough publication in the Federal Registerand are applicable throughout the nation.The nationwide permits are found in 33CFR Part 330. If an activity is covered bya general permit, an application for a DApermit.does not have to be made. In such cases, aperson must only comply with theconditions contained in the general permitto satisfy requirements of law for a DApermit. In certain cases pre-notification


may be required before initiatingconstruction. (See 33 CFR 330.7)

(d) General instructions. Generalpolicies for evaluating permit applicationsare found in this part. Special policies thatrelate to particular activities are found inParts 321 through 324. The procedures forprocessing individual permits and generalpermits are contained in 33 CFR Part 325.The terms “navigable waters of the UnitedStates” and “waters of the United States”are used frequently throughout theseregulations, and it is important from theoutset that the reader understand thedifference between the two. “Navigablewaters of the United States” are defined in33 CFR Part 329. These are waters that arenavigable in the traditional sense wherepermits are required for certain work orstructures pursuant to Sections 9 and 10 ofthe Rivers and Harbors Act of 1899,“Waters of the United States” are definedin 33 CFR Part 328. These waters includemore than navigable waters of the UnitedStates and are the waters where permits arerequired for the discharge of dredged orfill material pursuant to Section 404 of theClean Water Act.

§ 320.2 Authorities to issue permits.

(a) Section 9 of the Rivers and HarborsAct, approved March 3, 1899 (33 U.S.C.401) (hereinafter referred to as section 9),prohibits the construction of any dam ordike across any navigable water of theUnited States in the absence ofCongressional consent and approval of theplans by the Chief of Engineers and theSecretary of the Army. Where thenavigable portions of the waterbody liewholly within the limits of a single state,the structure may be built under authorityof the legislature of that state if thelocation and plans or any modificationthereof are approved by the Chief ofEngineers and by the Secretary of theArmy. The instrument of authorization isdesignated a permit (See 33 CFR Part321.) Section 9 also pertains to bridges .and causeways but the authority of theSecretary of the Army and Chief ofEngineers with respect to bridges andcauseways was transferred to the Secretaryof Transportation under the Department ofTransportation Act of October 15, 1966(49 U.S.C. 1155g(6)(A)). A DA permitpursuant to section 404 of the Clean WaterAct is required for the discharge ofdredged or fill material intowaters of the United States associatedwith bridges and causeways. (See 33CFR Part 323.)

(b) Section 10 of the Rivers and HarborsAct approved March 3, 1899, (33 U.S.C.403) (hereinafter referred to as section 10),prohibits the unauthorized obstruction or

alteration of any navigable water of theUnited States. The construction of anystructure in or over any navigable water ofthe United States, the excavating from ordepositing of material in such waters, orthe accomplishment of any other workaffecting the course, location, condition, orcapacity of such waters is unlawful unlessthe work has been recommended by theChief of Engineers and authorized by theSecretary of the Army. The instrument ofauthorization is designated a permit. Theauthority of the Secretary of the Army toprevent obstructions to navigation innavigable waters of the United States wasextended to artificial islands, installations,and other devices located on the seabed, tothe seaward limit of the outer continentalshelf, by section 4(f) of the OuterContinental Shelf Lands Act of 1953 asamended (43 U.S.C. 1333(e)). (See 33CFR Part 322.)

(c) Section 11 of the Rivers and HarborsAct approved March 3, 1899, (33 U.S.C.404), authorizes the Secretary of the Armyto establish harbor lines channelward ofwhich no piers, wharves, bulkheads, orother works may be extended or depositsmade without approval of the Secretary ofthe Army. Effective May 27, 1970, permitsfor work shoreward of those lines must beobtained in accordance with section 10and, if applicable, section 404 of the CleanWater Act (see § 320.4(o) of this Part).

(d) Section 13 of the Rivers and HarborsAct approved March 3, 1899, (33 U.S.C.407), provides that the Secretary of theArmy, whenever the Chief of Engineersdetermines that anchorage and navigationwill not be injured thereby, may permit thedischarge of refuse into navigable waters.In the absence of a permit, such dischargeof refuse is prohibited. While theprohibition of this section, known as theRefuse Act, is still in effect, the permitauthority of the Secretary of the Army hasbeen superseded by the permit authorityprovided the Administrator, EnvironmentalProtection Agency (EPA), and the statesunder sections 402 and 405 of the CleanWater Act, (33 U.S.C. 1342 and 1345).(See 40 CFR Parts 124 and 125.)

(e) Section 14 of the Rivers and HarborsAct approved March 3, 1899, (33 U.S.C.408), provides that the Secretaryof the Army, on the recommendation ofthe Chief of Engineers, may grantpermission for the temporary occupationor use of any sea wall, bulkhead, jetty,dike, levee, wharf, pier, or other work builtby the United States. This permission willbe granted by an appropriate real estateinstrument in accordance with existing realestate regulations.

(f) Section 404 of the Clean Water Act(33 U.S.C. 1344) (hereinafter referred to assection 404) authorizes the Secretary of theArmy, acting through the Chief ofEngineers, to issue permits, after noticeand opportunity for public hearing, for thedischarge of dredged or fill material intothe waters of the United States at specifieddisposal sites. (See 33 CFR Part 323.) Theselection and use of disposal sites will bein accordance with guidelines developedby the Administrator of EPA inconjunction with the Secretary of theArmy and published in 40 CFR Part 230.If these guidelines prohibit the selection oruse of a disposal site, the Chief ofEngineers shall consider the economicimpact on navigation and anchorage ofsuch a prohibition in reaching his decision.Furthermore, the Administrator can deny,prohibit, restrict or withdraw the use ofany defined area as a disposal sitewhenever he determines, after notice andopportunity for public hearing and afterconsultation with the Secretary of theArmy, that the discharge of such materialsinto such areas will have an unacceptableadverse effect on municipal water supplies,shellfish beds and fishery areas, wildlife,or recreational areas. (See 40 CFR Part230).

(g) Section 103 of the MarineProtection, Research and Sanctuaries Actof 1972, as amended (33 U.S.C. 1413)(hereinafter referred to as section 103),authorizes the Secretary of the Army,acting through the Chief of Engineers, toissue permits, after notice and opportunityfor public hearing, for the transportation ofdredged material for the purpose ofdisposal in the ocean where it isdetermined that the disposal will notunreasonably degrade or endanger humanhealth, welfare, or amenities, or the marineenvironment, ecological systems, oreconomic potentialities. The selection ofdisposal sites will be in accordance withcriteria developed by the Administrator ofthe EPA in consultation with the Secretaryof the Army and published in 40 CFRParts 220— 229. However, similar to theEPA Administrator’s limiting authoritycited in paragraph (f) of this section, theAdministrator can prevent the issuance ofa permit under this authority if he


finds that the disposal of the material willresult in an unacceptable adverse Impacton municipal water supplies, shellfishbeds, wildlife, fisheries, or recreationalareas. (See 33 CFR Part 324).

§ 320.3 Related laws.

(a) Section 401 of the Clean Water Act(33 U.S.C. 1341) requires any applicantfor a federal license or permit to conductany activity that may result in a dischargeof a pollutant into waters of the UnitedStates to obtain a certification from theState in which the discharge originates orwould originate, or, if appropriate, fromthe interstate water pollution controlagency having jurisdiction over theaffected waters at the point where thedischarge originates or would originate,that the discharge will comply with theapplicable effluent limitations and waterquality standards. A certification obtainedfor the construction of any facility mustalso pertain to the subsequent operation ofthe facility.

(b) Section 307(c) of the Coastal ZoneManagement Act of 1972, as amended (16U.S.C. 1456(c)), requires federal agenciesconducting activities, includingdevelopment projects, directly affecting astate’s coastal zone, to comply to themaximum extent practicable with anapproved state coastal zone managementprogram. Indian tribes doing work onfederal lands will be treated as a federalagency for the purpose of the Coastal ZoneManagement Act. The Act also requiresany non-federal applicant for a federallicense or permit to conduct an activityaffecting land or water uses in the state’scoastal zone to furnish a certification thatthe proposed activity will comply with thestate’s coastal zone management program.Generally, no permit will be issued untilthe state has concurred with the non-federal applicant’s certification. Thisprovision becomes effective upon approvalby the Secretary of Commerce of thestate’s coastal zone management program.(See 15 CFR Part 930.)

(c) Section 302 of the MarineProtection, Research and Sanctuaries Actof 1972, as amended (16 U.S.C. 1432),authorizes the Secretary of Commerce,after consultation with other interestedfederal agencies and with the approval ofthe President, to designate as marinesanctuaries those areas of the oceanwaters, of the Great Lakes and theirconnecting waters, or of other coastalwaters which he determines necessary forthe purpose of preserving or restoring suchareas for their conservation, recreational,ecological, or aesthetic values. Afterdesignating such an area, the Secretary of

Commerce shall issue regulations tocontrol any activities within the area.Activities in the sanctuary authorizedunder other authorities are valid only if theSecretary of Commerce certifies that theactivities are consistent with the purposesof Title III of the Act and can be carriedout within the regulations for thesanctuary.

(d) The National Environmental PolicyAct of 1969 (42 U.S.C. 4321— 4347)declares the national policy to encourage aproductive and enjoyable harmonybetween man and his environment. Section102 of that Act directs that ‘to the fullestextent possible: (1) The policies,regulations, and public laws of the UnitedStates shall be interpreted andadministered in accordance with thepolicies set forth in this Act, and (2) allagencies of the Federal Government shall* * * insure that presently unquantifiedenvironmental amenities and values maybe given appropriate consideration indecision-making along with economic andtechnical considerations * * *“. (SeeAppendix B of 33 CFR Part 325.)

(e) The Fish and Wildlife Act of 1956(18 U.S.C. 742a, et seq.), the MigratoryMarine Game-Fish Act (16 U.S.C. 760c—760g), the Fish and Wildlife CoordinationAct (16 U.S.C. 661— 666c) and other actsexpress the will of Congress to protect thequality of the aquatic environment as itaffects the conservation, improvement andenjoyment of fish and wildlife resources,Reorganization Plan No. 4 of 1970transferred certain functions, includingcertain fish and wildlife-water resourcescoordination responsibilities, from theSecretary of the Interior to the Secretary ofCommerce. Under the Fish and WildlifeCoordination Act and Reorganization PlanNo. 4. any federal agency that proposes tocontrol or modify any body of water mustfirst consult with the United States Fishand Wildlife Service or the NationalMarine Fisheries Service, as appropriate,and with the head of the appropriate stateagency exercising administration over thewildlife resources of the affected state.

(f) The Federal Power Act of 1920 (16U.S.C. 791a et seq.), as amended,authorizes the Federal Energy RegulatoryAgency (FERC) to issue licenses for theconstruction and the operation andmaintenance of dams, water conduits,reservoirs, power houses, transmissionlines, and other physical structures of ahydro-power project. However, wheresuch structures will affect the navigablecapacity of any navigable water of theUnited States (as defined in 16 U.S.C.796), the plans for the dam or otherphysical structures affecting navigation

must be approved by the Chief ofEngineers and the Secretary of the Army.In such cases, the interests of navigationshould normally be protected by a DArecommendation to FERC for the inclusionof appropriate provisions in the FERClicense rather than the issuance of aseparate DA permit under 33 U.S.C. 401 etseq. As to any other activities in navigablewaters not constituting construction andthe operation and maintenance of physicalstructures licensed by FERC under theFederal Power Act of 1920, as amended,the provisions of 33 U.S.C. 401 et seq.remain fully applicable. In all casesinvolving the discharge of dredged or fillmaterial into waters of the United States orthe transportation of dredged material forthe purpose of disposal in ocean waters,section 404 or section 103 will beapplicable.

(g) The National Historic PreservationAct of 1966 (16 U.S.C. 470) created theAdvisory Council on Historic Preservationto advise the President and Congress onmatters involving historic preservation. Inperforming its function the Council isauthorized to review and comment uponactivities licensed by the FederalGovernment which will have an effectupon properties listed in the NationalRegister of Historic Places, or eligible forsuch listing. The concern of Congress forthe preservation of significant historicalsites is also expressed in the Preservationof Historical and Archeological Data Actof 1974 (16 U.S.C. 469 et seq.), whichamends the Act of June 27, 1960. By thisAct, whenever a federal constructionproject or federally licensed project,activity, or program alters any terrain suchthat significant historical or archeologicaldata is threatened, the Secretary of theInterior may take action necessary torecover and preserve the data prior to thecommencement of the project.

(h) The Interstate Land Sales FullDisclosure Act (15 U.S.C. 1701 et seq.)prohibits any developer or agent fromselling or leasing any lot in a subdivision(as defined in 15 U.S.C. 1701(3)) unlessthe purchaser is furnished in advance aprinted property report containinginformation which the Secretary ofHousing and Urban Development may, byrules or regulations, require for theprotection of purchasers. In the event thelot in question is part of a project thatrequires DA authorization, the propertyreport is required by Housing and UrbanDevelopment regulation to state whether


or not a permit for the development hasbeen applied for, issued, or denied by theCorps of Engineers under section 10 orsection 404. The property report is alsorequired to state whether or not anyenforcement action has been taken as aconsequence of non-application for ordenial of such permit.

(i) The Endangered Species Act (16U.S.C. 1531 et seq.) declares the intentionof the Congress to conserve threatened andendangered species and the ecosystems onwhich those species depend. The Actrequires that federal agencies, inconsultation with the U.S. Fish andWildlife Service and the National MarineFisheries Service, use their authorities infurtherance of its purposes by carrying outprograms for the conservation ofendangered or threatened species, and bytaking such action necessary to insure thatany action authorized, funded, or carriedout by the Agency is not likely tojeopardize the continued existence of suchendangered or threatened species or resultin the destruction or adverse modificationof habitat of such species which isdetermined by the Secretary of the Interioror Commerce, as appropriate, to becritical. (See 50 CFR Part 17 and 50 CFRPart 402.)

(j) The Deepwater Port Act of 1974 (33U.S.C. 1501 et seq.) prohibits theownership, construction, or operation of adeepwater port beyond the territorial seaswithout a license issued by the Secretaryof Transportation. The Secretary ofTransportation may issue such a license toan applicant if he determines, among otherthings, that the construction and operationof the deepwater port is in the nationalinterest and consistent with nationalsecurity and other national policy goalsand objectives. An application for adeepwater port license constitutes anapplication for all federal authorizationsrequired for the ownership, construction,and operation of a deepwater port,including applications for section 10,section 404 and section 103 permits whichmay also be required pursuant to theauthorities listed in section 320.2 and thepolicies specified in section 320.4 of thisPart.

(k) The Marine Mammal Protection Actof 1972 (16 U.S.C. 1361 et seq.) expressesthe intent of Congress that marinemammals be protected and encouraged todevelop in order to maintain the health andstability of the marine ecosystem. The Actimposes a perpetual moratorium on theharassment, hunting, capturing, or killingof marine mammals and on the importationof marine mammals and marine mammalproducts without a permit from either the

Secretary of the Interior or the Secretary ofCommerce, depending upon the species ofmarine mammal involved. Such permitsmay be issued only for purposes ofscientific research and for public display ifthe purpose is consistent with the policiesof the Act. The appropriate Secretary isalso empowered in certain restrictedcircumstances to waive the requirementsof the Act.

(l) Section 7(a) of the Wild and ScenicRivers Act (16 U.S.C. 1278 et seq.)provides that no department or agency ofthe United States shall assist by loan,grant, license, or otherwise in theconstruction of any water resources projectthat would have a direct and adverse effecton the values for which such river wasestablished, as determined by the Secretarycharged with its administration.

(m) The Ocean Thermal EnergyConversion Act of 1980, (42 U.S.C.section 9101 et seq.) establishes alicensing regime administered by theAdministrator of NOAA for theownership, construction, location, andoperation of ocean thermal energyconversion (OTEC) facilities andplantships. An application for an OTEClicense filed with the Administratorconstitutes an application for all federalauthorizations required for ownership,construction, location, and operation of anOTEC facility or plantship, except forcertain activities within the jurisdiction ofthe Coast Guard. This includesapplications for section 10, section 404,section 103 and other DA authorizationswhich may be required.

(n) Section 402 of the Clean Water Actauthorizes EPA to issue permits underprocedures established to implement theNational Pollutant Discharge EliminationSystem (NPDES) program. Theadministration of this program can be, andin most cases has been, delegated toindividual states. Section 402(b)(6) statesthat no NPDES permit will be issued if theChief of Engineers, acting for theSecretary of the Army and after consultingwith the U.S. Coast Guard, determines thatnavigation and anchorage in any navigablewater will be substantially impaired as aresult of a proposed activity.

(o) The National Fishing EnhancementAct of 1984 (Pub. L. 98— 623) providesfor the development of a NationalArtificial Reef Plan to promote andfacilitate responsible and effective effortsto establish artificial reefs. The Actestablishes procedures to be followed bythe Corps in issuing DA permits forartificial reefs. The Act also establishes theliability of the permittee and the United

States. The Act further creates a civilpenalty for violation of any provision of apermit issued for an artificial reef.

§ 320.4 General policies for evaluatingpermit applications.

The following policies shall beapplicable to the review of all applicationsfor DA permits. Additional policiesspecifically applicable to certain types ofactivities are identified in 33 CFR Parts321— 324.

(a) Public Interest Review. (1) Thedecision whether to issue a permit will bebased on an evaluation of the probableimpacts, including cumulative impacts, ofthe proposed activity and its intended useon the public interest. Evaluation of theprobable impact which the proposedactivity may have on the public interestrequires a careful weighing of all thosefactors which become relevant in eachparticular case. The benefits whichreasonably may be expected to accruefrom the proposal must be balancedagainst its reasonably foreseeabledetriments. The decision whether toauthorize a proposal, and if so, theconditions under which it will be allowedto occur, are therefore determined by theoutcome of this general balancing process.That decision should reflect the nationalconcern for both protection and utilizationof important resources. All factors whichmay be relevant to the proposal must beconsidered including the cumulativeeffects thereof: among those areconservation, economics, aesthetics,general environmental concerns. wetlands,historic properties, fish and wildlifevalues, flood hazards, floodplain values,land use, navigation, shore erosion andaccretion, recreation, water supply andconservation, water quality, energy needs,safety, food and fiber production, mineralneeds, considerations of propertyownership and, in general, the needs andwelfare of the people. For activitiesinvolving 404 discharges, a permit will bedenied if the discharge that would beauthorized by such permit would notcomply with the Environmental ProtectionAgency’s 404(b)(1) guidelines. Subject tothe preceding sentence and any otherapplicable guidelines and criteria (see § §320.2 and 320.3), a permit will be grantedunless the district engineer determines thatit would be contrary to the public interest.

(2) The following general criteria willbe considered in the evaluation of everyapplication:

(i) The relative extent of the public andprivate need for the proposed structure orwork:


(ii) Where there are unresolved conflictsas to resource use, the practicability ofusing reasonable alternative locations andmethods to accomplish the objective of theproposed structure or work; and

(iii) The extent and permanence of thebeneficial and/or detrimental effects whichthe proposed structure or work is likely tohave on the public and private uses towhich the area is suited.

(3) The specific weight of each factor isdetermined by its importance andrelevance to the particular proposal.Accordingly, how important a factor is andhow much consideration it deserves willvary with each proposal. A specific factormay be given great weight on oneproposal, while it may not be present or asimportant on another. However, fullconsideration and appropriate weight willbe given to all comments, including thoseof federal, state, and local agencies, andother experts on matters within theirexpertise.

(b) Effect on wetlands, (1) Mostwetlands constitute a productive andvaluable public resource, the unnecessaryalteration or destruction of which shouldbe discouraged as contrary to the publicinterest. For projects to be undertaken orpartially or entirely funded by a federal,state, or local agency, additionalrequirements on wetlands considerationsare stated in Executive Order 11990, dated24 May 1977.

(2) Wetlands considered to performfunctions important to the public interestinclude:

(i) Wetlands which serve significantnatural biological functions, includingfood chain production, general habitat andnesting, spawning, rearing and resting sitesfor aquatic or land species;

(ii) Wetlands set aside for study of theaquatic environment or as sanctuaries orrefuges;

(iii) Wetlands the destruction oralteration of which would affectdetrimentally natural drainagecharacteristics, sedimentation patterns.salinity distribution, flushingcharacteristics, current patterns, or otherenvironmental characteristics;

(iv) Wetlands which are significant inshielding other areas from wave action,erosion, or storm damage. Such wetlandsare often associated with barrier beaches,islands, reefs and bars;

(v) Wetlands which serve as valuablestorage areas for storm and flood waters;

(vi) Wetlands which are ground waterdischarge areas that maintain minimumbaseflows important to aquatic resourcesand those which are prime natural rechargeareas;

(vii) Wetlands which serve significantwater purification functions; and

(viii) Wetlands which are unique innature or scarce in quantity to the region orlocal area.

(3) Although a particular alteration of awetland may constitute a minor change,the cumulative effect of numerouspiecemeal changes can result in a majorimpairment of wetland resources. Thus,the particular wetland site for which anapplication is made will be evaluated withthe recognition that it may be part of acomplete and interrelated wetland area. Inaddition, the district engineer mayundertake, where appropriate, reviews ofparticular wetland areas in consultationwith the Regional Director of the The. U.S.Fish and Wildlife Service, the RegionalDirector of the National Marine FisheriesService of the National Oceanic andAtmospheric Administration, the RegionalAdministrator of the EnvironmentalProtection Agency, the local representativeof the Soil Conservation Service of theDepartment of Agriculture, and the head ofthe appropriate state agency to assess thecumulative effect of activities in suchareas.

(4) No permit will be granted whichinvolves the alteration of wetlandsidentified as important by paragraph (b)(2)of this section or because of provisions ofparagraph (b)(3), of this section unless thedistrict engineer concludes, on the basis ofthe analysis required in paragraph (a) ofthis section, that the benefits of theproposed alteration outweigh the damageto the wetlands resource. In evaluatingwhether a particular discharge activityshould be permitted, the district engineershall apply the section 404(b)(1)guidelines (40 CFR Part 230.10(a) (1), (2),(3)).

(5) In addition to the policies expressedin this subpart, the Congressional policyexpressed in the Estuary Protection Act,Pub. L. 90-454, and state regulatory lawsor programs for classification andprotection of wetlands will be considered.

(c) Fish and wildlife. In accordance withthe Fish and Wildlife Coordination Act(paragraph 320.3(e) of this section) districtengineers will consult with the RegionalDirector, U.S. Fish and Wildlife Service,the Regional Director, National MarineFisheries Service, and the head of theagency responsible for fish and wildlife forthe state in which work is to be performed,with a view to the conservation of wildliferesources by prevention of their direct andindirect loss and damage due to theactivity proposed in a permit application.The Army will give full consideration tothe views of those agencies on fish andwildlife matters in deciding on theissuance, denial, or conditioning ofindividual or general permits.

(d) Water quality. Applications forpermits for activities which may adverselyaffect the quality of waters of the UnitedStates will be evaluated for compliancewith applicable effluent limitations andwater quality standards, during theconstruction and subsequent operation ofthe proposed activity. The evaluationshould include the consideration of bothpoint and non-point sources of pollution. Itshould be noted, however, that the CleanWater Act assigns responsibility forcontrol of non-point sources of pollution tothe states. Certification of compliance withapplicable effluent limitations and waterquality standards required under provisionsof section 401 of the Clean Water Act willbe considered conclusive with respect towater quality considerations unless theRegional Administrator, EnvironmentalProtection Agency (EPA), advises of otherwater quality aspects to be taken intoconsideration.

(e) Historic, cultural, scenic, andrecreational values. Applications for DApermits may involve areas which possessrecognized historic, cultural, scenic,conservation, recreational or similarvalues. Full evaluation of the generalpublic interest requires that dueconsideration be given to the effect whichthe proposed structure or activity may haveon values such as those associated withwild and scenic rivers, historic propertiesand National Landmarks, National Rivers,National Wilderness Areas, NationalSeashores, National Recreation Areas,National Lakeshores, National Parks,National Monuments, estuarine and marinesanctuaries, archeological resources,including Indian religious or cultural sites,and such other areas as may be establishedunder federal or state law for similar andrelated purposes. Recognition of thosevalues is often reflected by state, regional,or local land use classifications, or bysimilar federal controls or policies. Actionon permit applications should, insofar aspossible, be consistent with, and avoidsignificant adverse effects on the values orpurposes for which those classifications,controls, or policies were established.

(f) Effects on limits of the territorial sea.Structures or work affecting coastal watersmay modify the coast line or base linefrom which the territorial sea is measuredfor purposes of the Submerged Lands Actand international law. Generally, the coastline or base line is the line of ordinary lowwater on


the mainland; however, there areexceptions where there are islands orlowtide elevations offshore (theSubmerged Lands Act, 43 U.S.C. 1301(a)and United States v. California, 381U.S.C. 139 (1965), 382 U.S. 448 (1966)).Applications for structures or workaffecting coastal waters will therefore bereviewed specifically to determine whetherthe coast line or base line might be altered.If it is determined that such a change mightoccur, coordination with the AttorneyGeneral and the Solicitor of theDepartment of the Interior is requiredbefore final action is taken. The districtengineer will submit a description of theproposed work and a copy of the plans tothe Solicitor, Department of the Interior,Washington, DC 20240, and request hiscomments concerning the effects of theproposed work on the outer continentalrights of the United States. Thesecomments will be included in theadministrative record of the application.After completion of standard processingprocedures, the record will be forwarded tothe Chief of Engineers. The decision onthe application will be made by theSecretary of the Army after coordinationwith the Attorney General.

(g) Consideration of propertyownership. Authorization of work orstructures by DA does not convey aproperty right, nor authorize any injury toproperty or invasion of other rights.

(1) An inherent aspect of propertyownership is a right to reasonable privateuse. However, this right is subject to therights and interests of the public in thenavigable and other waters of the UnitedStates, including the federal navigationservitude and federal regulation forenvironmental protection.

(2) Because a landowner has the generalright to protect property from erosion,applications to erect protective structureswill usually receive favorableconsideration. However, if the protectivestructure may cause damage to theproperty of others, adversely affect publichealth and safety, adversely impactfloodplain or wetland values, or otherwiseappears contrary to the public interest, thedistrict engineer will so advise theapplicant and inform him of possiblealternative methods of protecting hisproperty. Such advice will be given interms of general guidance only so as not tocompete with private engineering firmsnor require undue use of governmentresources.

(3) A riparian landowner’s general rightof access to navigable waters of the UnitedStates is subject to the similar rights ofaccess held by nearby riparian landownersand to the general public’s right ofnavigation on the water surface. In the case

of proposals which create undueinterference with access to, or use of,navigable waters, the authorization willgenerally be denied.

(4) Where it is found that the work forwhich a permit is desired is in navigablewaters of the United States (see 33 CFRPart 329) and may interfere with anauthorized federal project, the applicantshould be apprised in writing of the factand of the possibility that a federal projectwhich may be constructed in the vicinityof the proposed work might necessitate itsremoval or reconstruction. The applicantshould also be informed that the UnitedStates will in no case be liable for anydamage or injury to the structures or workauthorized by Sections 9 or 10 of theRivers and Harbors Act of 1899 or bysection 404 of the Clean Water Act whichmay be caused by, or result from, futureoperations undertaken by the Governmentfor the conservation or improvement ofnavigation or for other purposes, and noclaims or right to compensation will accruefrom any such damage.

(5) Proposed activities in the area of afederal project which exists or is underconstruction will be evaluated to insurethat they are compatible with the purposesof the project.

(6) A DA permit does not convey anyproperty rights, either in real estate ormaterial, or any exclusive privileges.Furthermore, a DA permit does notauthorize any injury to property orinvasion of rights or any infringement ofFederal, state or local laws or regulations.The applicant’s signature on an applicationis an affirmation that the applicantpossesses or will possess the requisiteproperty interest to undertake the activityproposed in the application. The districtengineer will not enter into disputes butwill remind the applicant of the above. Thedispute over property ownership will notbe a factor in the Corps public interestdecision.

(h) Activities affecting coastal zones.Applications for DA permits for activitiesaffecting the coastal zones of those stateshaving a coastal zone managementprogram approved by the Secretary ofCommerce will be evaluated with respectto compliance with that program. Nopermit will be issued to a non-federalapplicant until certification has beenprovided that the proposed activitycomplies with the coastal zonemanagement program and the appropriatestate agency has concurred with thecertification or has waived its right to doso. However, a permit may be issued to anon-federal applicant if the Secretary ofCommerce, on his own initiative or uponappeal by the applicant, finds that theproposed activity is consistent with the

objectives of the Coastal ZoneManagement Act of 1972 or is otherwisenecessary in the interest of nationalsecurity. Federal agency and Indian tribeapplicants for DA permits are responsiblefor complying with the Coastal ZoneManagement Act’s directives for assuringthat their activities directly affecting thecoastal zone are consistent, to themaximum extent practicable, withapproved state coastal zone managementprograms.

(i) Activities in marine sanctuaries.Applications for DA authorization foractivities in a marine sanctuary establishedby the Secretary of Commerce underauthority of section 302 of the MarineProtection, Research and Sanctuaries Actof 1972, as amended, will be evaluated forimpact on the marine sanctuary. No permitwill be issued until the applicant providesa certification from the Secretary ofCommerce that the proposed activity isconsistent with the purposes of Title Ill ofthe Marine Protection, Research andSanctuaries Act of 1972, as amended, andcan be carried out within the regulationspromulgated by the Secretary ofCommerce to control activities within themarine sanctuary.

(j) Other Federal, state, or localrequirements. (1) Processing of anapplication for a DA permit normally willproceed concurrently with the processingof other required Federal, state, and/orlocal authorizations or certifications. Finalaction on the DA permit will normally notbe delayed pending action by anotherFederal, state or local agency (See 33 CFR325.2 (d)(4)). However, where the requiredFederal, state and/or local authorizationand/or certification has been denied foractivities which also require a Departmentof the Army permit before final action hasbeen taken on the Army permitapplication, the district engineer will, afterconsidering the likelihood of subsequentapproval of the other authorization and/orcertification and the time and effortremaining to complete processing theArmy permit application, eitherimmediately deny the Army permitwithout prejudice or continue processingthe application to a conclusion. If thedistrict engineer continues processing theapplication, he will conclude by eitherdenying the permit as contrary to thepublic interest, or denying it withoutprejudice indicating that except for theother Federal, state or local denial theArmy permit could, under appropriateconditions, be issued. Denial withoutprejudice means that there is no prejudiceto the right of the applicant to reinstateprocessing of the Army permit


application if subsequent approval isreceived from the appropriate Federal.state and/or local agency on a previouslydenied authorization and/or certification,Even if official certification and/orauthorization is not required by state orfederal law, but a state, regional, or localagency having jurisdiction or interest overthe particular activity comments on theapplication, due consideration shall begiven to those official views as a reflectionof local factors of the public interest.

(2) The primary responsibility fordetermining zoning and land use mattersrests with state, local and tribalgovernments. The district engineer willnormally accept decisions by suchgovernments on those matters unless thereare significant issues of overriding nationalimportance. Such issues would include butare not necessarily limited to nationalsecurity, navigation, national economicdevelopment, water quality, preservationof special aquatic areas, includingwetlands, with significant interstateimportance, and national energy needs.Whether a factor has overridingimportance will depend on the degree ofimpact in an individual case.

(3) A proposed activity may result inconflicting comments from severalagencies within the same state. Where astate has not designated a singleresponsible coordinating agency, districtengineers will ask the Governor to expresshis views or to designate one state agencyto represent the official state position inthe particular case.

(4) In the absence of overriding nationalfactors of the public interest that may berevealed during the evaluation of thepermit application, a permit will generallybe issued following receipt of a favorablestate determination provided the concerns,policies, goals, and requirements asexpressed in 33 CFR Parts 320— 324, andthe applicable statutes have beenconsidered and followed: e.g., the NationalEnvironmental Policy Act; the Fish andWildlife Coordination Act; the Historicaland Archeological Preservation Act; theNational Historic Preservation Act; theEndangered Species Act; the Coastal ZoneManagement Act; the Marine Protection,Research and Sanctuaries Act of 1972, asamended; the Clean Water Act, theArcheological Resources Act, and theAmerican Indian Religious Freedom Act.Similarly, a permit will generally be issuedfor Federal and Federally-authorizedactivities; another federal agency’sdetermination to proceed is entitled tosubstantial consideration in the Corps’public interest review.

(5) Where general permits to avoidduplication are not practical, districtengineers shall develop joint procedureswith those local, state, and other Federalagencies having ongoing permit programsfor activities also regulated by theDepartment of the Army. In such cases,applications for DA permits may beprocessed jointly with the state or otherfederal applications to an independentconclusion and decision by the districtengineer and the appropriate Federal orstate agency. (See 33 CF’R 325.2(e).)

(6) The district engineer shall developoperating procedures for establishingofficial communications with IndianTribes within the district. The proceduresshall provide for appointment of a tribalrepresentative who will receive allpertinent public notices, and respond tosuch notices with the official tribalposition on the proposed activity. Thisprocedure shall apply only to those tribeswhich accept this option. Any adoptedoperating procedures shall be distributedby public notice to inform the tribes of thisoption.

(k) Safety of impoundment structures.To insure that all impoundment structuresare designed for safety, non-Federalapplicants may be required to demonstratethat the structures comply with establishedstate dam safety criteria or have beendesigned by qualified persons and, inappropriate cases, that the design has beenindependently reviewed (and modified asthe review would indicate) by similarlyqualified persons.

(1) Floodplain management. (1)Floodplains possess significant naturalvalues and carry out numerous functionsimportant to the public interest. Theseinclude:

(i) Water resources values (naturalmoderation of floods, water qualitymaintenance, and groundwater recharge);

(ii) Living resource values (fish,wildlife, and plant resources);

(iii) Cultural resource values (openspace, natural beauty, scientific study,outdoor education, and recreation); and

(iv) Cultivated resource values(agriculture, aquaculture, and forestry).

(2) Although a particular alteration to afloodplain may constitute a minor change,the cumulative impact of such changesmay result in a significant degradation offloodplain values and functions and inincreased potential for harm to upstreamand downstream activities. In accordancewith the requirements of Executive Order11988, district engineers, as part of theirpublic interest review, should avoid to theextent practicable, long and short term

significant adverse impacts associated withthe occupancy and modification offloodplains, as well as the direct andindirect support of floodplain developmentwhenever there is a practicable alternative.For those activities which in the publicinterest must occur in or impact uponfloodplains, the district engineer shallensure, to the maximum extent practicable,that the impacts of potential flooding onhuman health, safety, and welfare areminimized, the risks of flood losses areminimized, and, whenever practicable thenatural and beneficial values served byfloodplains are restored and preserved.

(3) In accordance with Executive Order11988, the district engineer should avoidauthorizing floodplain developmentswhenever practicable alternatives existoutside the floodplain. If there are no suchpracticable alternatives, the districtengineer shall consider, as a means ofmitigation, alternatives within thefloodplain which will lessen anysignificant adverse impact to thefloodplain.

(m) Water supply and conservation.Water is an essential resource, basic tohuman survival, economic growth, and thenatural environment. Water conservationrequires the efficient use of waterresources in all actions which involve thesignificant use of water or thatsignificantly affect the availability of waterfor alternative uses including opportunitiesto reduce demand and improve efficiencyin order to minimize new supplyrequirements. Actions affecting waterquantities are subject to Congressionalpolicy as stated in section 101(g) of theClean Water Act which provides that theauthority of states to allocate waterquantities shall not be superseded,abrogated, or otherwise impaired.

(n) Energy conservation anddevelopment. Energy conservation anddevelopment are major national objectives.District engineers will give high priority tothe processing of permit actions involvingenergy projects.

(o) Navigation. (1) Section 11 of theRivers and Harbors Act of 1899 authorizedestablishment of harbor lines shoreward ofwhich no individual permits were required.Because harbor lines were established onthe basis of navigation impacts only, theCorps of Engineers published a regulationon 27 May 1970 (33 CFR 209.150) whichdeclared that permits would thereafter berequired for activities shoreward of theharbor lines. Review of applications


would be based on a full public interestevaluation and harbor lines would serve asguidance for assessing navigation impacts.Accordingly, activities constructedshoreward of harbor lines prior to 27 May1970 do not require specific authorization.

(2) The policy of considering harborlines as guidance for assessing impacts onnavigation continues.

(3) Protection of navigation in allnavigable waters of the United Statescontinues to be a primary concern of thefederal government.

(4) District engineers should protectnavigational and anchorage interests inconnection with the NPDES program byrecommending to EPA or to the state, ifthe program has been delegated, that apermit be denied unless appropriateconditions can be included to avoid anysubstantial impairment of navigation andanchorage.

(p) Environmental benefits. Someactivities that require Department of theArmy permits result in beneficial effects tothe quality of the environment. The districtengineer will weigh these benefits as wellas environmental detriments along withother factors of the public interest.

(q) Economics. When private enterprisemakes application for a permit, it willgenerally be assumed that appropriateeconomic evaluations have beencompleted, the proposal is economicallyviable, and is needed in the market place.However, the district engineer inappropriate cases, may make anindependent review of the need for theproject from the perspective of the overallpublic interest. The economic benefits ofmany projects are important to the localcommunity and contribute to neededimprovements in the local economic base,affecting such factors as employment, taxrevenues, community cohesion,community services, and property values.Many projects also contribute to theNational Economic Development (NED),(i.e., the increase in the net value of thenational output of goods and services).

(r) Mitigation1 (1) Mitigation is animportant aspect of the review andbalancing process on many Department ofthe Army permit applications.Consideration of mitigation will occurthroughout the permit application__________________

1This is a general statement of mitigationpolicy which applies to all Corps of Engineersregulatory authorities covered by theseregulations (33 CFR Parts 320— 330). It is not asubstitute for the mitigation requirementsnecessary to ensure that a permit action undersection 404 of the Clean Water Act complieswith the section 404(h)(1) Guidelines. There iscurrently an interagency Working Group formed

to develop guidance on implementing mitigationrequirements of the Guidelines.review process and includes avoiding,minimizing, rectifying, reducing, orcompensating for resource losses. Losseswill be avoided to the extent practicable.Compensation may occur on-site or at anoff-site location. Mitigation requirementsgenerally fall into three categories.

(i) Project modifications to minimizeadverse project impacts should bediscussed with the applicant at pre-application meetings and duringapplication processing. As a result of thesediscussions and as the district engineer’sevaluation proceeds, the district engineermay require minor project modifications.Minor project modifications are those thatare considered feasible (cost,constructability, etc.) to the applicant andthat, if adopted, will result in a project thatgenerally meets the applicant’s purposeand need. Such modifications can includereductions in scope and size; changes inconstruction methods, materials or timing;and operation and maintenance practicesor other similar modifications that reflect asensitivity to environmental quality withinthe context of the work proposed. Forexample, erosion control features could berequired on a fill project to reducesedimentation impacts or a pier could bereoriented to minimize navigationalproblems even though those projects maysatisfy all legal requirements (paragraph(r)(1)(ii) of this section) and the publicinterest review test (paragraph (r)(1)(iii) ofthis section) without such modifications,

(ii) Further mitigation measures may berequired to satisfy legal requirements. ForSection 404 applications, mitigation shallbe required to ensure that the projectcomplies with the 404(b)(1) Guidelines.Some mitigation measures are enumeratedat 40 CFR 230.70 through 40 CFR 230.77(Subpart H of the 404(b)(1) Guidelines).

(iii) Mitigation measures in addition tothose under paragraphs (r)(1) (i) arid (ii) ofthis section may be required as a result ofthe public interest review process. (See 33CFR 325.4(a).) Mitigation should bedeveloped and incorporated within thepublic interest review process to the extentthat the mitigation is found by the districtengineer to be reasonable and justified.Only those measures required to ensurethat the project is not contrary to the publicinterest may be required under thissubparagraph.

(2) All compensatory mitigation will befor significant resource losses which arespecifically identifiable, reasonably likelyto occur, and of importance to the humanor aquatic environment. Also, allmitigation will be directly related to the

impacts of the proposal, appropriate to thescope and degree of those impacts, andreasonably enforceable. District engineerswill require all forms of mitigation,including compensatory mitigation, onlyas provided in paragraphs (r)(1) (i) through(iii) of this section. Additional mitigationmay be added at the applicants’ request.

PART 321— PERMITS FOR DAMSAND DIKES IN NAVIGABLEWATERS OF THE UNITED STATESSec.321.1 General.321.2 Definitions.321.3 Special policies and procedures.

Authority: 33 U.S.C. 401.

§ 321.1 General.

This regulation prescribes, in addition tothe general policies of 33 CFR Part 320and procedures of 33 CFR Part 325, thosespecial policies, practices, and proceduresto be followed by the Corps of Engineersin connection with the review ofapplications for Department of the Army(DA) permits to authorize the constructionof a dike or dam in a navigable water ofthe United States pursuant to section 9 ofthe Rivers and Harbors Act of 1899 (33U.S.C. 401). See 33 CFR 320.2(a). Damsand dikes in navigable waters of theUnited States also require DA permitsunder section 404 of the Clean Water Act,as amended (33 U.S.C. 1344). Applicantsfor DA permits under this Part should alsorefer to 33 CFR Part 323 to satisfy therequirements of section 404.

§ 321.2 Definitions.

For the purpose of this regulation. thefollowing terms are defined:

(a) The term “navigable waters of theUnited States” means those waters of theUnited States that are subject to the ebband flow of the tide shoreward to the meanwater nark and/or are presently used, orhave been used in past, or may besusceptible to use to transport interstate orforeign commerce. See 33 CFR Part 329for a more complete definition of this term.

(b) The term “dike or dam” means, forthe purposes of section 9, anyimpoundment structure that completelyspans a navigable water of the UnitedStates and that may obstruct interstatewaterborne commerce. The term does notinclude a weir. Weirs are regulatedpursuant to section 10 of the Rivers andHarbors Act of 1899. (See 33 CFR Part322.)


§ 321.3 Special policies and procedures.The following additional special policies

and procedures shall be applicable to theevaluation of permit applications underthis regulation:

(a) The Assistant Secretary of the Army(Civil Works) will decide whether DAauthorization for a darn or dike in aninterstate navigable water of the UnitedStates will be issued, since this authorityhas not been delegated to the Chief ofEngineers. The conditions to be imposedin any instrument of authorization will berecommended by the district engineerwhen forwarding the report to theAssistant Secretary of the Army (CivilWorks), through the Chief of Engineers.

(b) District engineers are authorized todecide whether DA authorization for adam or dike in an intrastate navigablewater of the United States will be issued(see 33 CFR 325.8).

(c) Processing a DA application undersection 9 will not be completed until theapproval of the United States Congress hasbeen obtained if the navigable water of theUnited States is an interstate waterbody, oruntil the approval of the appropriate statelegislature has been obtained if thenavigable water of the United States is anintrastate waterbody (i.e., the navigableportion of the navigable water of theUnited States is solely within theboundaries of one state). The districtengineer, upon receipt of such anapplication, will notify the applicant thatthe consent of Congress or the statelegislature must be obtained before apermit can be issued.

PART 322— PERMITS FORSTRUCTURES OR WORK IN ORAFFECTING NAVIGABLE WATERSOF THE UNITED STATESSec.322.1 General.322.2 Definitions.322.3 Activities requiring permits.322.4 Activities not requiring permits.322.5 Special policies.


§ 322.1 General.

This regulation prescribes, in addition tothe general policies of 33 CFR Part 320and procedures of 33 CFR Part 325, thosespecial policies, practices, and proceduresto be followed by the Corps of Engineersin connection with the review ofapplications for Department of the Army(DA) permits to authorize certainstructures or work in or affecting navigablewaters of the United States pursuant tosection 10 of the Rivers and Harbors Act

of 1899 (33 U.S.C. 403) (hereinafterreferred to as section 10). See 33 CFR320.2(b). Certain structures or work in oraffecting navigable waters of the UnitedStates are also regulated under otherauthorities of the DA. These includedischarges of dredged or fill material intowaters of the United States, including theterritorial seas, pursuant to section 404 ofthe Clean Water Act (33 U.S.C. 1344; see33 CFR Part 323) and the transportation ofdredged material by vessel for purposes ofdumping in ocean waters, including theterritorial seas, pursuant to section 103 ofthe Marine Protection, Research andSanctuaries Act of 1972, as amended (33U.S.C. 1413; see 33 CFR Part 324). A DApermit will also be required under theseadditional authorities if they are applicableto structures or work in or affectingnavigable waters of the United States.Applicants for DA permits under this partshould refer to the other cited authoritiesand implementing regulations for theseadditional permit requirements todetermine whether they also are applicableto their proposed activities.

§ 322.2 Definitions.For the purpose of this regulation, the

following terms are defined:

(a) The term “navigable waters of theUnited States” and all other terms relatingto the geographic scope of jurisdiction aredefined at 33 CFR Part 329. Generally,they are those waters of the United Statesthat are subject to the ebb and flow of thetide shoreward to the mean high watermark, and/or are presently used, or havebeen used in the past, or may besusceptible to use to transport interstate orforeign commerce.

(b) The term “structure” shall include,without limitation, any pier, boat dock,boat ramp, wharf, dolphin, weir, boom,breakwater, bulkhead, revetment, riprap,jetty, artificial island, artificial reef,permanent mooring structure, powertransmission line, permanently mooredfloating vessel, piling, aid to navigation, orany other obstacle or obstruction.

(c) The term “work” shall include,without limitation, any dredging ordisposal of dredged material, excavation,filling, or other modification of anavigable water of the United States.

(d) The term “letter of permission”means a type of individual permit issued inaccordance with the abbreviatedprocedures of 33 CFR 325.2(e).

(e) The term “individual permit” meansa DA authorization that i8 issued followinga case-by-case evaluation of a specificstructure or work in accordance with theprocedures of this regulation and 33 CFR

Part 325, and a determination that theproposed structure or work is in the publicinterest pursuant to 33 CFR Part 320.

(f) The term “general permit” means aDA authorization that is issued on anationwide or regional basis for a categoryor categories of activities when:

(1) Those activities are substantiallysimilar in nature and cause only minimalindividual and cumulative environmentalimpacts; or

(2) The general permit would result inavoiding unnecessary duplication of theregulatory control exercised by anotherFederal, state, or local agency provided ithas been determined that theenvironmental consequences of the actionare individually and cumulatively minimal.(See 33 CFR 325.2(e) and 33 CFR Part330.)

(g) The term “artificial reef” means astructure which is constructed or placed inthe navigable waters of the United Statesor in the waters overlying the outercontinental shelf for the purpose ofenhancing fishery resources andcommercial and recreational fishingopportunities. The term does not includeactivities or structures such as wingdeflectors, bank stabilization, gradestabilization structures, or low flow keyways, all of which may be useful toenhance fisheries resources.

§ 322.3 Activities requiring permits.

(a) General. DA permits are requiredunder section 10 for structures and/or workin or affecting navigable waters of theUnited States except as otherwise providedin § 322.4 below. Certain activitiesspecified in 33 CFR Part 330 are permittedby that regulation (“nationwide generalpermits”). Other activities may beauthorized by district or division engineerson a regional basis (“regional generalpermits”). If an activity is not exempted bysection 322.4 of this part or authorized bya general permit, an individual section 10permit will be required for the proposedactivity. Structures or work are innavigable waters of the United States ifthey are within limits defined in 33 CFRPart 329. Structures or work outside theselimits are subject to the provisions of lawcited in paragraph (a) of this section, ifthese structures or work affect the course,location, or condition of the waterbody insuch a manner as to impact on itsnavigable capacity. For purposes of asection 10 permit, a tunnel or otherstructure or work under or over anavigable water of the United States isconsidered to have an impact on thenavigable capacity of the waterbody.

(b) Outer continental shelf DA permitsare required for the construction


of artificial islands, installations, and otherdevices on the seabed, to the seaward limitof the outer continental shelf, pursuant tosection 4(f) of the Outer Continental ShelfLands Act as amended. (See 33 CF’R320.2(b).)

(c) Activities of Federal agencies. (1)Except as specifically provided in thisparagraph, activities of the type describedin paragraphs (a) and (b) of this section,done by or on behalf of any Federalagency are subject to the authorizationprocedures of these regulations. Work orstructures in or affecting navigable watersof the United States that are part of thecivil works activities of the Corps ofEngineers, unless covered by a nationwideor regional general permit issued pursuantto these regulations, are subject to theprocedures of separate regulations.Agreement for construction or engineeringservices performed for other agencies bythe Corps of Engineers does not constituteauthorization under this regulation.Division and district engineers willtherefore advise Federal agenciesaccordingly, and cooperate to the fullestextent in expediting the processing of theirapplications.

(2) Congress has delegated to theSecretary of the Army in section 10 theduty to authorize or prohibit certain workor structures in navigable waters of theUnited States, upon recommendation ofthe Chief of Engineers. The generallegislation by which Federal agencies areempowered to act generally is notconsidered to be sufficient authorizationby Congress to satisfy the purposes ofsection 10. If an agency asserts that it hasCongressional authorization meeting thetest of section 10 or would otherwise beexempt from the provisions of section 10,the legislative history and/or provisions ofthe Act should clearly demonstrate thatCongress was approving the exact locationand plans from which Congress could haveconsidered the effect on navigable watersof the United States or that Congressintended to exempt that agency from therequirements of section 10. Very oftensuch legislation reserves final approval ofplans or construction for the Chief ofEngineers. In such cases evaluation andauthorization under this regulation arelimited by the intent of the statutorylanguage involved.

(3) The policy provisions set out in 33CFR 320.4(j) relating to state or localcertifications and/or authorizations, do notapply to work or structures undertaken byFederal agencies, except wherecompliance with non-Federal authorizationis required by Federal law or Executivepolicy, e.g., section 313 and section 401 ofthe Clean Water Act.

§ 322.4 Activities not requiring permits.(a) Activities that were commenced or

completed shoreward of establishedFederal harbor lines before May 27, 1970(see 33 CFR 320.4(o)) do not requiresection 10 permits; however, if thoseactivities involve the discharge of dredgedor fill material into waters of the UnitedStates after October 18, 1972. a section404 permit is required (See 33 CFR Part323.)

(b) Pursuant to section 154 of the WaterResource Development Act of 1976 (Pub.L. 94— 587), Department of the Armypermits are not required under section 10to construct wharves and piers in anywaterbody, located entirely within onestate, that is a navigable water of theUnited States solely on the basis of itshistorical use to transport interstatecommerce,

§ 322.5 Special policies.The Secretary of the Army has

delegated to the Chief of Engineers theauthority to issue or deny section 10permits. The following additional specialpolicies and procedures shall also beapplicable to the evaluation of permitapplications under this regulation.

(a) General. DA permits are required forstructures or work in or affecting navigablewaters of the United States. However,certain structures or work specified in 33CFR Part 330 are permitted by thatregulation. If a structure or work is notpermitted by that regulation, an individualor regional section 10 permit will berequired.

(b) Artificial Reefs. (1) Whenconsidering an application for an artificialreef, as defined in 33 CFR 322.2(g), thedistrict engineer will review theapplicant’s provisions for siting,constructing, monitoring, operating,maintaining, and managing the proposedartificial reef and shall determine if thoseprovisions are consistent with thefollowing standards:

(i) The enhancement of fisheryresources to the maximum extentpracticable;

(ii) The facilitation of access andutilization by United States recreationaland commercial fishermen;

(iii) The minimization of conflicts.among competing uses of the navigablewaters or waters overlying the outercontinental shelf and of the resources insuch waters;

(iv) The minimization ofenvironmental risks and risks to personalhealth and property;

(v) Generally accepted principles ofinternational law; and

(vi) the prevention of anyunreasonable obstructions to navigation. Ifthe district engineer decides that theapplicant’s provisions are not consistentwith these standards, he shall deny thepermit. If the district engineer decides thatthe provisions are consistent with thesestandards, and if he decides to issue thepermit after the public interest review, heshall make the provisions part of thepermit.

(2) In addition, the district engineer willconsider the National Artificial Reef Plandeveloped pursuant to section 204 of theNational Fishing Enhancement Act of1984, and if he decides to issue the permit,will notify the Secretary of Commerce ofany need to deviate from that plan.

(3) The district engineer will complywith all coordination provisions requiredby a written agreement between the DODand the Federal agencies relative toartificial reefs. In addition, if the districtengineer decides that further consultationbeyond the normal public commentingprocess is required to evaluate fully theproposed artificial reef, he may initiatesuch consultation with any Federal agency.state or local government, or otherinterested party.

(4) The district engineer will issue apermit for the proposed artificial reef onlyif the applicant demonstrates, to the districtengineer’s satisfaction, that the title to theartificial reef construction material isunambiguous, that responsibility formaintenance of the reef is clearlyestablished, and that he has the financialability to assume liability for all damagesthat may arise with respect to the proposedartificial reef. A demonstration of financialresponsibility might include evidence ofinsurance, sponsorship, or available assets.

(i) A person to whom a permit is issuedin accordance with these regulations andany insurer of that person shall not beliable for damages caused by activitiesrequired to be undertaken under any termsand conditions of the permit, if thepermittee is in compliance with such termsand conditions.

(ii) A person to whom a permit is issuedin accordance with these regulations andany insurer of that person shall be liable, tothe extent determined under applicablelaw, for damages to which paragraph (i)does not apply.

(iii) Any person who has transferredtitle to artificial reef construction materialsto a person to whom a permit is issued inaccordance with these regulations shall notbe liable for damages arising from the useof such materials in an artificial reef, ifsuch materials meet applicablerequirements


of the plan published under section 204 ofthe National Artificial Reef Plan, and arenot otherwise defective at the time title istransferred.

(c) Non-Federal dredging fornavigation. (1) The benefits which anauthorized Federal navigation project areintended to produce will often requiresimilar and related operations of non-Federal agencies (e.g., dredging accesschannels to docks and berthing facilities ordeepening such channels to correspond tothe Federal project depth). These non-Federal activities will be considered byCorps of Engineers officials in planningthe construction and maintenance ofFederal navigation projects and, to themaximum practical extent, will becoordinated with interested Federal, state,regional and local agencies and the generalpublic simultaneously with the associatedFederal projects. Non-Federal activitieswhich are not so coordinated will beindividually evaluated in accordance withthese regulations. in evaluating the publicinterest in connection with applications forpermits for such coordinated operations,equal treatment will be accorded to thefullest extent possible to both Federal andnon-Federal operations. Permits for non-Federal dredging operations will normallycontain conditions requiring the permitteeto com ply with the same practices orrequirements utilized in connection withrelated Federal dredging operations withrespect to such matters as turbidity, waterquality, containment of material, natureand location of approved spoil disposalareas (non-Federal use of Federalcontained disposal areas will be inaccordance with laws authorizing suchareas and regulations governing their use),extent and period of dredging, and otherfactors relating to protection ofenvironmental and ecological values.

(2) A permit for the dredging of achannel, slip, or other such project fornavigation may also authorize the periodicmaintenance dredging of the project.Authorization procedures and limitationsfor maintenance dredging shall be asprescribed in 33 CFR 325.6(e). The permitwill require the permittee to give advancenotice to the district engineer each timemaintenance dredging is to be performed.Where the maintenance dredging involvesthe discharge of dredged material intowaters of the United States or thetransportation of dredged material for thepurpose of dumping it in ocean waters, theprocedures in 33 CFR Parts 323 and 324respectively shall also be followed.

(d) Structures for small boats. (1) In theabsence of overriding public interest.favorable consideration will generally be

given to applications from riparian ownersfor permits for piers, boat docks,moorings, platforms and similar structuresfor small boats. Particular attention will begiven to the location and general design ofsuch structures to prevent possibleobstructions to navigation with respect toboth the public’s use of the waterway andthe neighboring proprietors’ access to thewaterway. Obstructions can result fromboth the existence of the structure,particularly in conjunction with othersimilar facilities in the immediate vicinity,and from its inability to withstand waveaction or other forces which can beexpected. District engineers will informapplicants of the hazards involved andencourage safety in location, design, andoperation. District engineers willencourage cooperative or group usefacilities in lieu of individual proprietaryuse facilities.

(2) Floating structures for smallrecreational boats or other recreationalpurposes in lakes controlled by the Corpsof Engineers under a resource manager arenormally subject to permit authorities citedin § 322.3, of this section, when thosewaters are regarded as navigable waters ofthe United States. However, suchstructures will not be authorized under thisregulation but will be regulated underapplicable regulations of the Chief ofEngineers published in 36 CFR 327.19 ifthe land surrounding those lakes is undercomplete Federal ownership. Districtengineers will delineate those portions ofthe navigable waters of the United Stateswhere this provision is applicable and postnotices of this designation in the vicinityof the lake resource manager’s office.

(e) Aids to navigation. The placing offixed and floating aids to navigation in anavigable water of the United States iswithin the purview of Section 10 of theRivers and Harbors Act of 1899.Furthermore, these aids are of particularinterest to the U.S. Coast Guard because ofits control of marking, lighting andstandardization of such navigation aids. ASection 10 nationwide permit has beenissued for such aids provided they areapproved by, and installed in accordancewith the requirements of the U.S. CoastGuard (33 CFR 330.5(a)(1)). Electricalservice cables to such aids are not includedin the nationwide permit (an individual orregional Section 10 permit will berequired).

(f) Outer continental shelf Artificialislands, installations, and other deviceslocated on the seabed, to the seawardlimit of the outer continental shelf, aresubject to the standard permit proceduresof this regulation. Where the islands,

installations and other devices are to beconstructed on lands which are undermineral lease from the MineralManagement Service, Department of theInterior, that agency. in cooperation withother federal agencies, fully evaluates thepotential effect of the leasing program onthe total environment. Accordingly, thedecision whether to issue a permit on landswhich are under mineral lease from theDepartment of the Interior will be limitedto an evaluation of the impact of theproposed work on navigation and nationalsecurity. The public notice will so identifythe criteria.

(g) Canals and other artificialwaterways connected to navigable watersof the United States. A canal or similarartificial waterway is subject to theregulatory authorities discussed in § 322.3,of this Part, if it constitutes a navigablewater of the United States, or if it isconnected to navigable waters of theUnited States a manner which affects theircourse, location, condition or capacity, orif at some point in its construction oroperation it results in an effect on thecourse, location, condition, or capacity ofnavigable waters of the United States. Inall cases the connection to navigablewaters of he United States requires apermit. Where the canal itself constitutes anavigable water of the United States,evaluation of the permit application andfurther exercise of regulatory authoritywill be in accordance with the standardprocedures of these regulations. For allother canals, the exercise of regulatoryauthority is restricted to those activitieswhich affect the course, location,condition, or capacity of the navigablewaters of the United States. The districtengineer will consider, for applications forcanal work, a proposed plan of the entiredevelopment and the location anddescription of anticipated docks, piers andother similar structures which will beplaced in the canal.

(h) Facilities at the borders of theUnited States. (1) The constructionoperation, maintenance, or connection offacilities at the borders of the United Statesare subject to Executive control and mustbe authorized by the President, Secretaryof State, or other delegated official.

(2) Applications for permits for theconstruction, operation, maintenance, orconnection at the borders of the UnitedStates of facilities for the transmission ofelectric energy between the United Statesand a foreign country, or for theexportation or importation of natural


gas to or from a foreign country, must bemade to the Secretary of Energy.(Executive Order 10485, September 3,1953, 16 U.S.C. 824(a)(e), 15 U.S.C.717(b), as amended by Executive Order12038, February 3, 1978, and 18 CFRParts 32 and 153).

(3) Applications for the landing oroperation of submarine cables must bemade to the Federal CommunicationsCommission. (Executive Order 10530,May 10, 1954, 47 U.S.C. 34 to 39, and 47CFR 1.766).

(4) The Secretary of State is to receiveapplications for permits for theconstruction, connection, operation, ormaintenance, at the borders of the UnitedStates, of pipelines, conveyor belts, andsimilar facilities for the exportation orimportation of petroleum products, coals,minerals, or other products to or from aforeign country; facilities for theexportation or importation of water orsewage to or from a foreign country; andmonorails, aerial cable cars, aerialtramways, and similar facilities for thetransportation of persons and/or things, toor from a foreign country. (ExecutiveOrder 11423, August 16, 1968).

(5) A DA permit under section 10 of theRivers and Harbors Act of 1899 is alsorequired for all of the above facilitieswhich affect the navigable waters of theUnited States, but in each case in which apermit has been issued as provided above,the district engineer, in evaluating thegeneral public interest, may consider thebasic existence and operation of thefacility to have been primarily examinedand permitted as provided by theExecutive Orders. Furthermore, in thosecases where the construction, maintenance,or operation at the above facilities involvesthe discharge of dredged or fill material inwaters of the United States or thetransportation of dredged material for thepurpose of dumping it into ocean waters,appropriate DA authorizations undersection 404 of the Clean Water Act orunder section 103 of the MarineProtection, Research and Sanctuaries Actof 1972, as amended, are also required.(See 33 CFR Parts 323 and 324.)

(i) Power transmission lines. (1) Permitsunder section 10 of the Rivers and HarborsAct of 1899 are required for powertransmission lines crossing navigablewaters of the United States unless thoselines are part of a water power projectsubject to the regulatory authorities of theDepartment of Energy under the FederalPower Act of 1920. If an application isreceived for a permit for lines which arepart of such a water power project, theapplicant will be instructed to submit theapplication to the Department of Energy. Ifthe lines are not part of such a water power

project, the application will be processedin accordance with the procedures of theseregulations.

(2) The following minimum clearancesare required for aerial electric powertransmission lines crossing navigablewaters of the United States. Theseclearances are related to the clearancesover the navigable channel provided byexisting fixed bridges, or the clearanceswhich would be required by the U.S. CoastGuard for new fixed bridges, in thevicinity of the proposed power linecrossing. The clearances are based on thelow point of the line under conditionswhich produce the greatest sag, taking intoconsideration temperature, load, wind,length or span, and type of supports asoutlined in the National Electrical SafetyCode.

Nominal systemvoltage. KV

Minimum additionalclearance (feet)above clearance

required for bridges115 and below138161230350500700750— 765

2022242630354245

(3) Clearances for communication lines,stream gaging cables, ferry cables, andother aerial crossings are usually requiredto be a minimum of ten feet aboveclearances required for bridges. Greaterclearances will be required if the publicinterest so indicates.

(4) Corps of Engineer regulation ER1110— 2— 4401 prescribes minimumvertical clearances for power andcommunication lines over Corps lakeprojects. In instances where both thisregulation and ER 1110— 2— 4401 apply.the greater minimum clearance is required.

(j) Seaplane operations. (1) Structuresin navigable waters of the United Statesassociated with seaplane operations requireDA permits, but close coordination withthe Federal Aviation Administration(FAA), Department of Transportation, isrequired on such applications.

(2) The FAA must be notified by anapplicant whenever he proposes toestablish or operate a seaplane base. TheFAA will study the proposal and advisethe applicant, district engineer, and otherinterested parties as to the effects of theproposal on the use of airspace. Thedistrict engineer will, therefore, refer anyobjections regarding the effect of theproposal on the use of airspace to theFAA, and give due consideration to its

recommendations when evaluating thegeneral public interest.

(3) If the seaplane base would serve aircarriers licensed by the Department ofTransportation, the applicant must receivean airport operating certificate from theFAA. That certificate reflects adetermination and conditions relating tothe installation, operation, andmaintenance of adequate air navigationfacilities and safety equipment.Accordingly, the district engineer may, inevaluating the general public interest,consider such matters to have beenprimarily evaluated by the FAA.

(4) For regulations pertaining toseaplane landings at Corps of Engineersprojects, see 36 CFR 327.4.

(k) Foreign trade zones. The ForeignTrade Zones Act (48 Stat. 998— 1003. 19U.S.C. 81a to 81u, as amended) authorizesthe establishment of foreign-trade zones inor adjacent to United States ports of entryunder terms of a grant and regulationsprescribed by the Foreign-Trade ZonesBoard. Pertinent regulations are publishedat Title 15 of the Code of FederalRegulations, Part 400. The Secretary of theArmy is a member of the Board, andconstruction of a zone is under thesupervision of the district engineer. Lawsgoverning the navigable waters of theUnited States remain applicable to foreign-trade zones, including the generalrequirements of these regulations.Evaluation by a district engineer of apermit application may give recognition tothe consideration by the Board of thegeneral economic effects of the zone onlocal and foreign commerce, generallocation of wharves and facilities, andother factors pertinent to construction,operation, and maintenance of the zone

(l) Shipping safety fairways andanchorage areas. DA permits are requiredfor structures located within shippingsafety fairways and anchorage areasestablished by the U.S. Coast Guard.

(1) The Department of the Army willgrant no permits for the erection ofstructures in areas designated as fairways,except that district engineers may permittemporary anchors and attendant cables orchains for floating or semisubmersibledrilling rigs to be placed within a fairwayprovided the following conditions are met:

(i) The installation of anchors tostabilize semisubmersible drilling rigswithin fairways must be temporary andshall be allowed to remain only 120 days.This period may be extended by thedistrict engineer provided reasonable causefor such extension can


be shown and the extension is otherwisejustified.

(ii) Drilling rigs must be at least 500feet from any fairway boundary orwhatever distance necessary to insure thatminimum clearance over an anchor linewithin a fairway will be 125 feet.

(iii) No anchor buoys or floats or relatedrigging will be allowed on the surface ofthe water or to a depth of 125 feet from thesurface, within the fairway.

(iv) Drilling rigs may not be placedcloser than 2 nautical miles of any otherdrilling rig situated along a fairwayboundary, and not closer than 3 nauticalmiles to any drilling rig located on theopposite side of the fairway.

(v) The permittee must notify thedistrict engineer. Bureau of LandManagement, Mineral ManagementService, U.S. Coast Guard, NationalOceanic and Atmospheric Administrationand the U.S. Navy Hydrographic Office ofthe approximate dates (commencementand completion) the anchors will be inplace to insure maximum notification tomariners.

(vi) Navigation aids or danger markingsmust be installed as required by the U.S.Coast Guard.

(2) District engineers may grant permitsfor the erection of structures within an areadesignated as an anchorage area, but thenumber of structures will be limited byspacing, as follows: The center of astructure to be erected shall be not lessthan two (2) nautical miles from the centerof any existing structure. In a drilling orproduction complex, associated structuresshall be as close together as practicablehaving due consideration for the safetyfactors involved. A complex of associatedstructures, when connected by walkways,shall be considered one structure for thepurpose of spacing. A vessel fixed in placeby moorings and used in conjunction withthe associated structures of a drilling orproduction complex, shall be consideredan attendant vessel and its extent shallinclude its moorings. When a drilling orproduction complex includes an attendantvessel and the complex extends more thanfive hundred (500) yards from the centeror the complex, a structure to be erectedshall be not closer than two (2) nauticalmiles from the near outer limit of thecomplex. An underwater completioninstallation in and anchorage area shall beconsidered a structure and shall be markedwith a lighted buoy as approved by theUnited States Coast Guard.

PART 323— PERMITS FORDISCHARGES OF DREDGED ORFILL MATERIAL INTO WATERS OFTHE UNITED STATESSec.323.1 General.323.2 Definitions.323.3 Discharges requiring permits.323.4 Discharges not requiring permits.323.5 Program transfer to states.323.6 Special policies and procedures.


§ 323.1 General.This regulation prescribes, in addition to

the general policies of 33 CFR Part 320and procedures of 33 CFR Part 325, thosespecial policies, practices, and proceduresto be followed by the Corps of Engineersin connection with the review ofapplications for DA permits to authorizethe discharge of dredged or fill materialinto waters of the United States pursuant tosection 404 of the Clean Water Act(CWA) (33 U.S.C. 1344) (hereinafterreferred to as section 404). (See 33 CFR320.2(g).) Certain discharges of dredged orfill material into waters of the UnitedStates are also regulated under otherauthorities of the Department of the Army.These include dams and dikes in navigablewaters of the United States pursuant tosection 9 of the Rivers and Harbors Act of1899 (33 U.S.C. 401; see 33 CFR Part321) and certain structures or work in oraffecting navigable waters of the UnitedStates pursuant to section 10 of the Riversand Harbors Act of 1899 (33 U.S.C. 403;see 33 CFR Part 322). A DA permit willalso be required under these additionalauthorities if they are applicable toactivities involving discharges of dredgedor fill material into waters of the UnitedStates. Applicants for DA permits underthis part should refer to the other citedauthorities and implementing regulationsfor these additional permit requirements todetermine whether they also are applicableto their proposed activities.

§ 323.2 Definitions.For the purpose of this part. the

following terms are defined:(a) The term “waters of the United

States” and all other terms relating to thegeographic scope of jurisdiction aredefined at 33 CFR Part 328.

(b) The term “lake” means a standingbody of open water that occurs in a naturaldepression fed by one or more streamsfrom which a stream may flow. that occursdue to the widening or natural blockage orcutoff of a river or stream, or that occurs inan isolated natural depression that is not apart of a surface river or stream. The termalso includes a standing body of open

water created by artificially blocking orrestricting the flow of a river, stream, ortidal area. As used in this regulation, theterm does not include artificial lakes orponds created by excavating and/or dikingdry land to collect and retain water forsuch purposes as stock watering, irrigation,settling basins, cooling, or rice growing.

(c) The term “dredged material” meansmaterial that is excavated or dredged fromwaters of the United States.

(d) The term “discharge of dredgedmaterial” means any addition of dredgedmaterial into the waters of the UnitedStates. The term includes, withoutlimitation, the addition of dredged materialto a specified discharge site located inwaters of the United States and the runoffor overflow from a contained land or waterdisposal area. Discharges of pollutants intowaters of the United States resulting fromthe onshore subsequent processing ofdredged material that is extracted for anycommercial use (other than fill) are notincluded within this term and are subject tosection 402 of the Clean Water Act eventhough the extraction and deposit of suchmaterial may require a permit from theCorps of Engineers. The term does notinclude plowing, cultivating, seeding andharvesting for the production of food,fiber, and forest products (See § 323.4 forthe definition of these terms). The termdoes not include de minimis, incidental soilmovement occurring during normaldredging operations.

(e) The term “fill material” means anymaterial used for the primary purpose ofreplacing an aquatic area with dry land orof changing the bottom elevation of anwaterbody. The term does not include anypollutant discharged into the waterprimarily to dispose of waste, as thatactivity is regulated under section 402 ofthe Clean Water Act.

(f) The term “discharge of fill material”means the addition of fill material intowaters of the United States. The termgenerally includes, without limitation, thefollowing activities: Placement of fill thatis necessary for the construction of anystructure in a water of the United States;the building of any structure orimpoundment requiring rock, sand, dirt, orother material for its construction:site-development fills for recreational,industrial, commercial, residential, andother uses; causeways or road fills; damsand dikes; artificial islands; propertyprotection and/or reclamation devices suchas riprap, groins, seawalls, breakwaters,and revetments; beach nourishment;levees; fill for structures such as sewagetreatment facilities,


intake and outfall pipes associated withpower plants and subaqueous utility lines;and artificial reefs. The term does notinclude plowing, cultivating, seeding andharvesting for the production of food,fiber, and forest products (See § 323.4 forthe definition of these terms).

(g) The term “individual permit” meansa Department of the Army authorizationthat is issued following a case-by-caseevaluation of a specific project involvingthe proposed discharge(s) in accordancewith the procedures of this part and 33CFR Part 325 and a determination that theproposed discharge is in the public interestpursuant to 33 CFR Part 320.

(h) The term “general permit” means aDepartment of the Army authorization thatis issued on a nationwide or regional basisfor a category or categories of activitieswhen:

(1) Those activities are substantiallysimilar in nature and cause only minimalindividual and cumulative environmentalimpacts; or

(2) The general permit would result inavoiding unnecessary duplication ofregulatory control exercised by anotherFederal, state, or local agency provided ithas been determined that theenvironmental consequences of the actionare individually and cumulatively minimal.(See 33 CFR 325.2(e) and 33 CFR Part330.)

§ 323.3 Discharges requiring permits.

(a) General. Except as provided in §323.4 of this Part, DA permits will berequired for the discharge of dredged orfill material into waters of the UnitedStates. Certain discharges specified in 33CFR Part 330 are permitted by thatregulation (“nationwide permits”). Otherdischarges may be authorized by district ordivision engineers on a regional basis(“regional permits”), If a discharge ofdredged or fill material is not exempted by§ 323.4 of this Part or permitted by 33CFR Part 330. an individual or regionalsection 404 permit will be required for thedischarge of dredged or fill material intowaters of the United States.

(b) Activities of Federal agencies.Discharges of dredged or fill material intowaters of the United States done by or onbehalf of any Federal agency, other thanthe Corps of Engineers (see 33 CFR Part209.145), are subject to the authorizationprocedures of these regulations.Agreement for construction or engineeringservices performed for other agencies bythe Corps of Engineers does not constituteauthorization under the regulations.Division and district engineers will

therefore advise Federal agencies andinstrumentalities accordingly andcooperate to the fullest extent in expeditingthe processing of their applications.

§ 323.4 Discharges not requiringpermits.

(a) General. Except as specified inparagraphs (b) and (c) of this section, anydischarge of dredged or fill material thatmay result from any of the followingactivities is not prohibited by or otherwisesubject to regulation under section 404:

(1)(i) Normal farming, silviculture andranching activities such as plowing,seeding, cultivating, minor drainage, andharvesting for the production of food,fiber, and forest products, or upland soiland water conservation practices, asdefined in paragraph (a)(1)(iii) of thissection.

(ii) To fall under this exemption, theactivities specified in paragraph (a)(1)(i) ofthis section must be part of an established(i.e., on-going) farming, silviculture, orranching operation and must be inaccordance with definitions in §323.4(a)(1)(iii). Activities on areas lyingfallow as part of a conventional rotationalcycle are part of an established operation.Activities which bring an area intofarming, silviculture, or ranching use arenot part of an established operation. Anoperation ceases to be established whenthe area on which it was conducted hasbeen converted to another use or has lainidle so long that modifications to thehydrological regime are necessary toresume operations. If an activity takesplace outside the waters of the UnitedStates, or if it does not involve a discharge,it does not need a section 404 permit,whether or not it is part of an establishedfarming, silviculture, or ranchingoperation.

(iii) (A) Cultivating means physicalmethods of soil treatment employed withinestablished farming, ranching andsilviculture lands on farm, ranch, or forestcrops to aid and improve their growth,quality or yield.

(B) Harvesting means physicalmeasures employed directly upon farm,forest, or ranch crops within establishedagricultural and silvicultural lands to bringabout their removal from farm, forest, orranch land, but does not include theconstruction of farm, forest, or ranchroads.

(C)(1} Minor Drainage means:(1) The discharge of dredged or fill

material incidental to connecting uplanddrainage facilities to waters of the UnitedStates, adequate to effect the removal ofexcess soil moisture from uplandcroplands. (Construction and maintenanceof upland (dryland) facilities, such as

ditching and tiling, incidental to theplanting, cultivating, protecting, orharvesting of crops, involve no dischargeof dredged or fill material into waters ofthe United States, and as such neverrequire a section 404 permit.);

(ii) The discharge of dredged or fillmaterial for the purpose of installingditching or other such water controlfacilities incidental to planting, cultivating,protecting, or harvesting of rice,cranberries or other wetland crop species,where these activities and the dischargeoccur in waters of the United States whichare in established use for such agriculturaland silvicultural wetland crop production;

(iii) The discharge of dredged or fillmaterial for the purpose of manipulatingthe water levels of, or regulating the flowor distribution of water within, existingimpoundments which have beenconstructed in accordance with applicablerequirements of CWA, and which are inestablished use for the production of rice,cranberries, or other wetland crop species.(The provisions of paragraphs(a)(1)(iii)(C)(1) (ii) and (iii) of this sectionapply to areas that are in established useexclusively for wetland crop production aswell as areas in established use forconventional wetland/non-wetland croprotation (e.g., the rotations of rice andsoybeans) where such rotation results inthe cyclical or intermittent temporarydewatering of such areas.)

(iv) The discharges of dredged or fillmaterial incidental to the emergencyremoval of sandbars, gravel bars, or othersimilar blockages which are formed duringflood flows or other events, where suchblockages close or constrict previouslyexisting drainageways and, if not promptlyremoved, would result in damage to or lossof existing crops or would impair orprevent the plowing, seeding. harvesting orcultivating of crops on land in establisheduse for crop production. Such removaldoes not include enlarging or extending thedimensions of, or changing the bottomelevations of, the affected drainageway asit existed prior to the formation of theblockage. Removal must be accomplishedwithin one year of discovery of suchblockages in order to be eligible forexemption.

(2) Minor drainage in waters of the U.S.is limited to drainage within areas that arepart of an established farming orsilviculture operation. It does not includedrainage associated with the immediate orgradual conversion of a wetland to a non-wetland (e.g., wetland species to uplandspecies not typically adapted to life insaturated soil conditions), or conversionfrom one wetland use to another (forexample. silviculture to farming). Inaddition,


minor drainage does not include theconstruction of any canal, ditch, dike orother waterway or structure which drainsor otherwise significantly modifies astream, lake, swamp, bog or any otherwetland or aquatic area constituting watersof the United States. Any discharge ofdredged or fill material into the waters ofthe United States incidental to theconstruction of any such structure orwaterway requires a permit.

(D) Plowing means all forms of primarytillage, including moldboard, chisel, orwide-blade plowing, discing, harrowingand similar physical means utilized onfarm, forest or ranch land for the breakingup, cutting, turning over, or stirring of soilto prepare it for the planting of crops. Theterm does not include the redistribution ofsoil, rock, sand, or other surficial materialsin a manner which changes any area of thewaters of the United States to dry land. Forexample, the redistribution of surfacematerials by blading, grading, or othermeans to fill in wetland areas is notplowing. Rock crushing activities whichresult in the loss of natural drainagecharacteristics, the reduction of waterstorage and recharge capabilities, or theoverburden of natural water filtrationcapacities do not constitute plowing.Plowing as described above will neverinvolve a discharge of dredged or fillmaterial.

(E) Seeding means the sowing of seedand placement of seedlings to producefarm, ranch, or forest crops and includesthe placement of soil beds for seeds orseedlings on established farm and forestlands.

(2) Maintenance, including emergencyreconstruction of recently damaged parts,of currently serviceable structures such asdikes, dams, levees, groins, riprap,breakwaters, causeways, bridge abutmentsor approaches, and transportationstructures. Maintenance does not includeany modification that changes thecharacter, scope, or size of the original filldesign. Emergency reconstruction mustoccur within a reasonable period of timeafter damage occurs in order to qualify forthis exemption.

(3) Construction or maintenance of farmor stock ponds or irrigation ditches, or themaintenance (but not construction) ofdrainage ditches. Discharges associatedwith siphons, pumps, headgates,wingwalls, weirs, diversion structures, andsuch other facilities as are appurtenant andfunctionally related to irrigation ditchesare included in this exemption.

(4) Construction of temporarysedimentation basins on a construction sitewhich does not include placement of fill

material into waters of the U.S. The term“construction site” refers to any siteinvolving the erection of buildings, roads,and other discrete structures and theinstallation of support facilities necessaryfor construction and utilization of suchstructures. The term also includes anyother land areas which involve land-disturbing excavation activities, includingquarrying or other mining activities, wherean increase in the runoff of sediment iscontrolled through the use of temporarysedimentation basins.

(5) Any activity with respect to which astate has an approved program undersection 208(b)(4) of the CWA which meetsthe requirements of sections 208(b)(4) (B)and (C).

(6) Construction or maintenance of farmroads, forest roads, or temporary roads formoving mining equipment, where suchroads are constructed and maintained inaccordance with best managementpractices (BMPs) to assure that flow andcirculation patterns and chemical andbiological characteristics of waters of theUnited States are not impaired, that thereach of the waters of the United States isnot reduced, and that any adverse effect onthe aquatic environment will be otherwiseminimized. These BMPs which must beapplied to satisfy this provision shallinclude those detailed BMPs described inthe state’s approved program descriptionpursuant to the requirements of 40 CFRPart 233.22(i), and shall also include thefollowing baseline provisions:

(i) Permanent roads (for farming orforestry activities), temporary access roads(for mining, forestry, or farm purposes)and skid trails (for logging) in waters ofthe U.S. shall be held to the minimumfeasible number, width, and total lengthconsistent with the purpose of specificfarming, silvicultural or mining operations,and local topographic and climaticconditions;

(ii) All roads, temporary or permanent,shall be located sufficiently far fromstreams or other water bodies (except forportions of such roads which must crosswater bodies) to minimize discharges ofdredged or fill material into waters of theU.S.;

(iii) The road fill shall be bridged,culverted, or otherwise designed to preventthe restriction of expected flood flows;

(iv) The fill shall be properly stabilizedand maintained during and followingconstruction to prevent erosion;

(v) Discharges of dredged or fillmaterial into waters of the United States to

construct a road fill shall be made in amanner that minimizes the encroachmentof trucks, tractors, bulldozers, or otherheavy equipment within waters of theUnited States (including adjacentwetlands) that lie outside the lateralboundaries of the fill itself;

(vi) In designing, constructing, andmaintaining roads, vegetative disturbancein the waters of the U.S. shall be kept to aminimum;

(vii) The design, construction andmaintenance of the road crossing shall notdisrupt the migration or other movement ofthose species of aquatic life inhabiting thewater body;

(viii) Borrow material shall be takenfrom upland sources whenever feasible;

(ix) The discharge shall not take, orjeopardize the continued existence of, athreatened or endangered species asdefined under the Endangered Species Act,or adversely modify or destroy the criticalhabitat of such species;

(x) Discharges into breeding and nestingareas for migratory waterfowl, spawningareas, and wetlands shall be avoided ifpractical alternatives exist;

(xi) The discharge shall not be locatedin the proximity of a public water supplyintake;

(xii) The discharge shall not occur inareas of concentrated shellfish production;

(xiii) The discharge shall not occur in acomponent of the National Wild andScenic River System;

(xiv) The discharge of material shallconsist of suitable material free from toxicpollutants in toxic amounts; and

(xv) All temporary fills shall beremoved in their entirety and the arearestored to its original elevation.

(b) If any discharge of dredged or fillmaterial resulting from the activities listedin paragraphs (a) (1}— (6) of this sectioncontains any toxic pollutant listed undersection 307 of the CWA such dischargeshall be subject to any applicable toxiceffluent standard or prohibition, and shallrequire a Section 404 permit.

(c) Any discharge of dredged or fillmaterial into waters of the United Statesincidental to any of the activities identifiedin paragraphs (a) (1)— (6) of this sectionmust have a permit if it is part of anactivity whose purpose is to convert anarea of the waters of the United States intoa use to which it was not previouslysubject, where the flow or circulation ofwaters of the United States nay beimpaired or the reach of such watersreduced. Where the proposed dischargewill result in significant discerniblealterations to flow or circulation, thepresumption is that flow or circulation maybe impaired by such alteration. Forexample, a


permit will be required for the conversionof a cypress swamp to some other use orthe conversion of a wetland fromsilvicultural to agricultural use when thereis a discharge of dredged or fill materialinto waters of the United States inconjunction with construction of dikes,drainage ditches or other works orstructures used to effect such conversion.A conversion of a Section 404 wetland to anon-wetland is a change in use of an areaof waters of the United States. A dischargewhich elevates the bottom of waters of theUnited States without converting it to dryland does not thereby reduce the reach of,but may alter the flow or circulation of,waters of the United States.

(d) Federal projects which qualify underthe criteria contained in section 404(r) ofthe CWA are exempt from section 404permit requirements, but may be subject toother state or Federal requirements.

§ 323.5 Program transfer to states.

Section 404(h) of the CWA allows theAdministrator of the EnvironmentalProtection Agency (EPA) to transferadministration of the section 404 permitprogram for discharges into certain watersof the United States to qualified states.(The program cannot be transferred forthose waters which are presently used, orare susceptible to use in their naturalcondition or by reasonable improvement asa means to transport interstate or foreigncommerce shoreward to their ordinaryhigh water mark, including all waterswhich are subject to the ebb and flow ofthe tide shoreward to the high tide line.including wetlands adjacent thereto). See40 CFR Parts 233 and 124 for proceduralregulations for transferring Section 404programs to states. Once a state’s 404program is approved and in effect, theCorps of Engineers will suspendprocessing of section 404 applications inthe applicable waters and will transferpending applications to the state agencyresponsible for administering the program.District engineers will assist EPA and thestates in any way practicable to effecttransfer and will develop appropriateprocedures to ensure orderly andexpeditious transfer.

§ 323.8 Special policies and procedures.

(a) The Secretary of the Army hasdelegated to the Chief of Engineers theauthority to issue or deny section 404permits. The district engineer will reviewapplications for permits for the dischargeof dredged or fill material into waters ofthe United States in accordance withguidelines promulgatedby the Administrator, EPA, underauthority of section 404(b)(1) of the CWA.

(see 40 CFR Part 230.) Subject toconsideration of any economic impact onnavigation and anchorage pursuant tosection 404(b)(2), a permit will be deniedif the discharge that would be authorizedby such a permit would not comply withthe 404(b)(1) guidelines. If the districtengineer determines that the proposeddischarge would comply with the404(b)(1) guidelines, he will grant thepermit unless issuance would be contraryto the public interest.

(b) The Corps will not issue a permitwhere the regional administrator of EPAhas notified the district engineer andapplicant in writing pursuant to 40 CFR231.3(a)(1) that he intends to issue a publicnotice of a proposed determination toprohibit or withdraw the specification, orto deny, restrict or withdraw the use forspecification, of any defined area as adisposal site in accordance with section404(c) of the Clean Water Act. Howeverthe Corps will continue to complete theadministrative processing of theapplication while the section 404(c)procedures are underway includingcompletion of final coordination with EPAunder 33 CFR Part 325.

PART 324— PERMITS FOR OCEANDUMPING OF DREDGEDMATERIAL

Sec.324.1 General.324.2 Definitions.324.3 Activities requiring permits.324.4 Special procedures.


§ 324.1 General.

This regulation prescribes in addition tothe general policies of 33 CFR Part 820and procedures of 33 CFR Part 325, thosespecial policies, practices and proceduresto be followed by the Corps of Engineersin connection with the review ofapplications for Department of the Army(DA) permits to authorize thetransportation of dredged material byvessel or other vehicle for the purpose ofdumping it in ocean waters at dumpingsites designated under 40 CFR Part 228pursuant to section 103 of the MarineProtection, Research and Sanctuaries Actof 1972, as amended (33 U.S.C. 1413)(hereinafter referred to as section 103). See33 CFR 320.2(h). Activities involving thetransportation of dredged material for thepurpose of dumping in the ocean watersalso require DA permits under Section 10of the Rivers and Harbors Act of 1899 (33U.S.C. 403) for the dredging in navigablewaters of the United States. Applicants forDA permits under this Part should alsorefer

to 33 CFR Part 322 to satisfy therequirements of Section 10.


For the purpose of this regulation. thefollowing terms are defined:

(a) The term “ocean waters” meansthose waters of the open seas lyingseaward of the base line from which theterritorial sea is measured, as provided forin the Convention on the Territorial Seaand the Contiguous Zone (15 UST 1606:TIAS 5639).

(b) The term ‘dredged material” meansany material excavated or dredged fromnavigable waters of the United States,

(c) The term “transport” or“transportation” refers to the conveyanceand related handling of dredged materialby a vessel or other vehicle,

§ 324.3 Activities requiring permits.

(a) General. DA permits are required forthe transportation of dredged material forthe purpose of dumping it in ocean waters.

(b) Activities of Federal agencies. (1)The transportation of dredged material forthe purpose of disposal in ocean watersdone by or on behalf of any Federalagency other than the activities of theCorps of Engineers is subject to theprocedures of this regulation. Agreementfor construction or engineering servicesperformed for other agencies by the Corpsof Engineers does not constituteauthorization under these regulations.Division and district engineers willtherefore advise Federal agenciesaccordingly and cooperate to the fullestextent in the expeditious processing oftheir applications. The activities of theCorps of Engineers that involve thetransportation of dredged material fordisposal in ocean waters are regulated by33 CFR 209.145.

(2) The policy provisions set out in 33CFR 320.4(j) relating to state or localauthorizations do not apply to work orstructures undertaken by Federal agencies,except where compliance with non-Federalauthorization is required by Federal law orExecutive policy. Federal agencies areresponsible for conformance with suchlaws and policies. (See EO 12088. October18, 1978.) Federal agencies are notrequired to obtain and provide certificationof compliance with effluent limitationsam.. water quality standards from state orinterstate water pollution control agenciesin connection with activities involving thetransport of dredged material for dumpinginto ocean waters beyond the territorialsea.


§ 324.4 Special procedures.

The Secretary of the Army hasdelegated to the Chief of Engineers theauthority to issue or deny section 103permits. The following additionalprocedures shall also be applicable underthis regulation.

(a) Public notice. For all applications forsection 103 permits, the district engineerwill issue a public notice which shallcontain the information specified in 33CFR 325.3.

(b) Evaluation. Applications for permitsfor the transportation of dredged materialfor the purpose of dumping it in oceanwaters will be evaluated to determinewhether the proposed dumping willunreasonably degrade or endanger humanhealth, welfare, amenities, or the marineenvironment, ecological systems oreconomic potentialities. District engineerswill apply the criteria established by theAdministrator of EPA pursuant to section102 of the Marine Protection, Researchand Sanctuaries Act of 1972 in making thisevaluation. (See 40 CFR Parts 220— 229)Where ocean dumping is determined to benecessary, the district engineer will, to theextent feasible, specify disposal sites usingthe recommendations of the Administratorpursuant to section 102(c) of the Act.

(c) EPA review. When the RegionalAdministrator, EPA, in accordance with 40CFR 225.2(b), advises the districtengineer, in writing, that the proposeddumping will comply with the criteria, thedistrict engineer will complete hisevaluation of the application under thispart and 33 CFR Parts 320 and 325. If,however, the Regional Administratoradvises the district engineer, in writing,that the proposed dumping does notcomply with the criteria, the districtengineer will proceed as follows:

(1) The district engineer will determinewhether there is an economically feasiblealternative method or site available otherthan the proposed ocean disposal site. Ifthere are other feasible alternative methodsor sites available, the district engineer willevaluate them in accordance with 33 CFRParts 320, 322, 323, and 325 and this Part,as appropriate.

(2) If the district engineer determinesthat there is no economically feasiblealternative method or site available, andthe proposed project is otherwise found tobe not contrary to the public interest, hewill so advise the Regional Administratorsetting forth his reasons for suchdetermination. If the RegionalAdministrator has not removed hisobjection within 15 days, the districtengineer will submit a report of hisdetermination to the Chief of Engineers for

further coordination with theAdministrator, EPA, and decision. Thereport forwarding the case will contain theanalysis of whether there are othereconomically feasible methods or sitesavailable to dispose of the dredgedmaterial.

(d) Chief of Engineers review. TheChief of Engineers shall evaluate thepermit application and make a decision todeny the permit or recommend itsissuance. If the decision of the Chief ofEngineers is that ocean dumping at theproposed disposal site is required becauseof the unavailability of economicallyfeasible alternatives, he shall so certify andrequest that the Secretary of the Army seeka waiver from the Administrator, EPA, ofthe criteria or of the critical sitedesignation in accordance with 40 CFR225.4.

PART 325— PROCESSING OFDEPARTMENT OF THE ARMYPERMITS

Sec.325.1 Applications for permits.325.2 Processing of applications.325.3 Public notice.325.4 Conditioning of permits.325.5 Forms of permits.325.6 Duration of permits.325.7 Modification, suspension, or

revocation of permits.325.8 Authority to issue or deny permits.325.9 Authority to determine jurisdiction.325.10 Publicity.Appendix A— Permit Form and Special

ConditionsAppendix B.— Reserved (For Future

NEPA Regulation)Appendix C— Reserved (For Historic

Properties Regulation)Authority: 33 U.S.C. 401 et seq.; 33

U.S. C. 1344: 33 USC 1413.

§ 325.1 Applications for permits.(a) General. The processing procedures

of this Part apply to any Department of theArmy (DA) permit. Special procedures andadditional information are contained in 33CFR Parts 320 through 324, 327 and Part330. This Part is arranged in the basictiming sequence used by the Corps ofEngineers in processing applications forDA permits.

(b) Pre-application consultation formajor applications. The district staffelement having responsibility foradministering, processing, and enforcingfederal laws and regulations relating to theCorps of Engineers regulatory programshall be available to advise potentialapplicants of studies or other informationforeseeably required for later federalaction. The district engineer will establishlocal procedures and policies including

appropriate publicity programs which willallow potential applicants to contact thedistrict engineer or the regulatory staffelement to request pre-applicationconsultation. Upon receipt of such request,the district engineer will assure theconduct of an orderly process which mayinvolve other staff elements and affectedagencies (Federal, state, or local) and thepublic. This early process should be briefbut thorough so that the potential applicantmay begin to assess the viability of someof the more obvious potential alternativesin the application. The district engineerwill endeavor, at this stage, to provide thepotential applicant with all helpfulinformation necessary in pursuing theapplication, including factors which theCorps must consider in its permit decisionmaking process. Whenever the districtengineer becomes aware of planning forwork which may require a DA permit andwhich may involve the preparation of anenvironmental document, he shall contactthe principals involved to advise them ofthe requirement for the permit(s) and theattendant public interest review includingthe development of an environmentaldocument. Whenever a potential applicantindicates the intent to submit anapplication for work which may requirethe preparation of an environmentaldocument, a single point of contact shallbe designated within the district’sregulatory staff to effectively coordinatethe regulatory process, including theNational Environmental Policy Act(NEPA) procedures and all attendantreviews, meetings, hearings, and otheractions, including the scoping process ifappropriate, leading to a decision by thedistrict engineer. Effort devoted to thisprocess should be commensurate with thelikelihood of a permit application actuallybeing submitted to the Corps. Theregulatory staff coordinator shall maintainan open relationship with each potentialapplicant or his consultants so as to assurethat the potential applicant is fully awareof the substance (both quantitative andqualitative) of the data required by thedistrict engineer for use in preparing anenvironmental assessment or anenvironmental impact statement (EIS) inaccordance with 33 CFR Part 230,Appendix B.

(c) Application form. Applicants for allindividual DA permits must use thestandard application form (ENG Form4345, 0MB Approval No. OMB 49-R0420). Local variations of the applicationform for purposes of facilitatingcoordination with federal, state and localagencies may be used. The appropriateform may be obtained from the districtoffice having


jurisdiction over the waters in which theactivity is proposed to be located. Certainactivities have been authorized by generalpermits and do not require submission ofan application form but may require aseparate notification.

(d) Content of application. (1) Theapplication must include a completedescription of the proposed activityincluding necessary drawings, sketches, orplans sufficient for public notice (detailedengineering plans and specifications arenot required); the location. purpose andneed for the proposed activity; schedulingof the activity; the names and addresses ofadjoining property owners; the locationand dimensions of adjacent structures; anda list of authorizations required by otherfederal. interstate, state, or local agenciesfor the work, including all approvalsreceived or denials already made. See §325.3 for information required to be inpublic notices. District and divisionengineers are not authorized to developadditional information forms but mayrequest specific information on a case-by-case basis. (See § 325.1(e)).

(2) All activities which the applicantplans to undertake which are reasonablyrelated to the same project and for which aDA permit would be required should beincluded in the same permit application.District engineers should reject, asIncomplete, any permit application whichfails to comply with this requirement. Forexample, a permit application for a marinawill include dredging required for accessas well as any fill associated withconstruction of the marina.

(3) If the activity would involvedredging in navigable waters of the UnitedStates, the application must include adescription of the type, composition andquantity of the material to be dredged, themethod of dredging, and the site and plansfor disposal of the dredged material.

(4) If the activity would include thedischarge of dredged or fill material intothe waters of the United States or thetransportation of dredged material for thepurpose of disposing of it in ocean watersthe application must include the source ofthe material: the purpose of the discharge,a description of the type, composition andquantity of the material; the method oftransportation and disposal of the material;and the location of the disposal site.Certification under section 401 of theClean Water Act is required for suchdischarges into waters of the United States.

(5) If the activity would include theconstruction of a filled area or pile or float-supported platform the project

description must include the use of, andspecific structures to be erected on. the fillor platform.

(6) if the activity would involve theconstruction of an impoundment structure,the applicant may be required todemonstrate that the structure complieswith established state dam safety criteria orthat the structure has been designed byqualified persons and, in appropriate cases,independently reviewed (and modified asthe review would indicate) by similarlyqualified persons. No specific designcriteria are to be prescribed nor i8 anindependent detailed engineering review tobe made by the district engineer.

(7) Signature on application. Theapplication must be signed by the personwho desires to undertake the proposedactivity (i.e. the applicant) or by a dulyauthorized agent. When the applicant isrepresented by an agent, that informationwill be included in the space provided onthe application or by a separate writtenstatement. The signature of the applicantor the agent will be an affirmation that theapplicant possesses or will possess therequisite property interest to undertake theactivity proposed in the application, exceptwhere the lands are under the control ofthe Corps of Engineers, in which cases thedistrict engineer will coordinate thetransfer of the real estate and the permitaction. An application may include theactivity of more than one owner providedthe character of the activity of each owneris similar and in the same general area andeach owner submits a statementdesignating the same agent.

(8) If the activity would involve theconstruction or placement of an artificialreef, as defined in 33 CFR 322.2(g), in thenavigable waters of the United States or inthe waters overlying the outer continentalshelf, the-application must includeprovisions for siting, constructing,monitoring, and managing the artificialreef.

(9) Complete application. Anapplication will he determined to becomplete when sufficient information isreceived to issue a public notice (See 33CFR 325.1(d) and 325.3(a).) The issuanceof a public notice will not be delayed toobtain information necessary to evaluatean application.

(a) Additional information. In additionto the information indicated in paragraph(d) of this section, the applicant will berequired to furnish only such additionalinformation as the district engineer deemsessential to make a public interestdetermination including, where applicable,

a determination of compliance with thesection 404(b)(1) guidelines or oceandumping criteria. Such additionalinformation may include environmentaldata and information on alternate methodsand sites as may be necessary for thepreparation of the required environmentaldocumentation.

(f) Fees. Fees are required for permitsunder section 404 of the Clean Water Act,section 103 of the Marine Protection,Research and Sanctuaries Act of 1972, asamended, and sections 9 and 10 of theRivers and Harbors Act of 1899. A fee of$100.00 will be charged when the plannedor ultimate purpose of the project iscommercial or industrial in nature and is insupport of operations that charge for theproduction, distribution or sale of goods orservices. A $10.00 fee will be charged forpermit applications when the proposedwork is non-commercial in nature andwould provide personal benefits that haveno connection with a commercialenterprise. The final decision as to thebasis for a fee (commercial vs. non-commercial) shall be solely theresponsibility of the district engineer. Nofee will be charged if the applicantwithdraws the application at any time priorto issuance of the permit or if the permit isdenied. Collection of the fee will bedeferred until the proposed activity hasbeen determined to be not contrary to thepublic interest. Multiple fees are not to becharged if more than one law is applicable.Any modification significant enough torequire publication of a public notice willalso require a fee. No fee will be assessedwhen a permit is transferred from oneproperty owner to another. No fees will becharged for time extensions, generalpermits or letters of permission. Agenciesor instrumentalities of federal, state orlocal governments will not be required topay any fee in connection with permits.

§ 325.2 Processing of applications.

(a) Standard procedures. (1) When anapplication for a permit is received thedistrict engineer shall immediately assignit a number for identification, acknowledgereceipt thereof. and advise the applicant ofthe number assigned to it. He shall reviewthe application for completeness, and if theapplication is incomplete, request from theapplicant within 15 days of receipt of theapplication any additional informationnecessary for further processing.

(2) Within 15 days of receipt of anapplication the district engineer will eitherdetermine that the application is complete(see 33 CFR 325.l(d)(9) and issue a publicnotice as described in § 325.3 of this Part,unless specifically exempted by otherprovisions of this


regulation or that it is incomplete andnotify the applicant of the informationnecessary for a complete application. Thedistrict engineer will issue a supplemental,revised, or corrected public notice if in hisview there is a change in the applicationdata that would affect the public’s reviewof the proposal.

(3) The district engineer will considerall comments received in response to thepublic notice in his subsequent actions onthe permit application. Receipt of thecomments will be acknowledged, ifappropriate, and they will be made a partof the administrative record of theapplication. Comments received as formletters or petitions may be acknowledgedas a group to the person or organizationresponsible for the form letter or petition.If comments relate to matters within thespecial expertise of another federal agency,the district engineer may seek the adviceof that agency. if the district engineerdetermines, based on comments received,that he must have the views of theapplicant on a particular issue to make apublic interest determination, the applicantwill be given the opportunity to furnish hisviews on such issue to the district engineer(see § 325.2(d)(5)). At the earliestpracticable time other substantivecomments will be furnished to theapplicant for his information and anyviews he may wish to offer. A summary ofthe comments, the actual letters or portionsthereof, or representative comment lettersmay be furnished to the applicant. Theapplicant may voluntarily elect to contactobjectors in an attempt to resolveobjections but will not be required to doso. District engineers will ensure that allparties are informed that the Corps alone isresponsible for reaching a decision on themerits of any application. The districtengineer may also offer Corps regulatorystaff to be present at meetings betweenapplicants and objectors, whereappropriate, to provide information on theprocess, to mediate differences, or togather information to aid in the decisionprocess. The district engineer should notdelay processing of the application unlessthe applicant requests a reasonable delay,normally not to exceed 30 days, to provideadditional information or comments.

(4) The district engineer will followAppendix B of 33 CFR Part 230 forenvironmental procedures anddocumentation required by the NationalEnvironmental Policy Act of 1969. Adecision on a permit application willrequire either an environmental assessmentor an environmental impact statementunless it is included within a categoricalexclusion.

(5) The district engineer will alsoevaluate the application to determine theneed for a public hearing pursuant to 33CFR Part 327.

(6) After all above actions have beencompleted, the district engineer willdetermine in accordance with the recordand applicable regulations whether or notthe permit should be issued. He shallprepare a statement of findings (SOF) or,where an EIS has been prepared, a recordof decision (ROD), on all permit decisions.The SOF or ROD shall include the districtengineer’s views on the probable effect ofthe proposed work on the public interestincluding conformity with the guidelinespublished for the discharge of dredged orfill material into waters of the UnitedStates (40 CFR Part 230) or with thecriteria for dumping of dredged material inocean waters (40 CFR Parts 220 to 229), ifapplicable, and the conclusions of thedistrict engineer. The SOF or ROD shallbe dated, signed, and included in therecord prior to final action on theapplication. Where the district engineerhas delegated authority to sign permits forand in his behalf, he may similarlydelegate the signing of the SOF or ROD. Ifa district engineer makes a decision on apermit application which is contrary tostate or local decisions (33 CFR 320.4(j)(2) & (4)), the district engineer willinclude in the decision document thesignificant national issues and explain howthey are overriding in importance. If apermit is warranted, the district engineerwill determine the special conditions, ifany, and duration which should beincorporated into the permit. In accordancewith the authorities specified in Section325.8 of this Part, the district engineer willtake final action or forward the applicationwith all pertinent comments, records. andstudies, including the final EIS orenvironmental assessment, throughchannels to the official authorized to makethe final decision. The report forwardingthe application for decision will be in aformat prescribed by the Chief ofEngineers. District and division engineerswill notify the applicant and interestedfederal and state agencies that theapplication has been forwarded to higherheadquarters. The district or divisionengineer may, at his option, disclose hisrecommendation to the news media andother interested parties, with the cautionthat it is only a recommendation and not afinal decision. Such disclosure isencouraged in permit cases which havebecome controversial and have been thesubject of stories in the media or havegenerated strong public interest. In thosecases where the application is forwardedfor decision in the format prescribed by theChief of Engineers, the report will serve as

the SOF or ROD. District engineers willgenerally combine the SOF, environmentalassessment, and findings of no significantimpact (FONSI), 404(b)(1) guidelineanalysis, and/or the criteria for dumping ofdredged material in ocean waters into asingle document.

(7) If the final decision is to deny thepermit, the applicant will be advised inwriting of the reason(s) for denial. If thefinal decision is to issue the permit and astandard individual permit form will beused, the issuing official will forward thepermit to the applicant for signatureaccepting the conditions of the permit. Thepermit is not valid until signed by theissuing official. Letters of permissionrequire only the signature of the issuingofficial. Final action on the permitapplication is the signature on the letternotifying the applicant of the denial of thepermit or signature of the issuing officialon the authorizing document.

(8) The district engineer will publishmonthly a list of permits issued or deniedduring the previous month. The list willidentify each action by public noticenumber, name of applicant, and briefdescription of activity involved. It will alsonote that relevant environmentaldocuments and the SOFs or RODs areavailable upon written request and, whereapplicable, upon the payment ofadministrative fees, This list will bedistributed to all persons who may have aninterest in any of the public notices listed.

(9) Copies of permits will be furnishedto other agencies in appropriate cases asfollows:

(i) If the activity involves theconstruction of artificial islands,installations or other devices on the outercontinental shelf, to the Director, DefenseMapping Agency, Hydrographic Center,Washington, DC 20390 Attention, CodeNS12, and to the Charting and GeodeticServices, N/ CG2?2, National OceanService NOAA. Rockville, Maryland20852.

(ii) If the activity involves theconstruction of structures to enhance fishpropagation (e.g., fishing reefs) along thecoasts of the United States, to the DefenseMapping Agency, Hydrographic Centerand National Ocean Service as inparagraph (a)(9)(i) of this section and tothe Director, Office of MarineRecreational Fisheries, National MarineFisheries Service. Washington, DC 20235.

(iii) If the activity involves the erectionof an aerial transmission line, submergedcable, or submerged pipeline


across a navigable water of the UnitedStates, to the Charting and GeodeticServices N/CG222, National OceanService NOAA, Rockville, Maryland20852.

(iv) If the activity is listed in paragraphs(a)(9) (i), (ii), or (iii) of this section, orinvolves the transportation of dredgedmaterial for the purpose of dumping it inocean waters, to the appropriate DistrictCommander, U.S. Coast Guard.

(b) Procedures for particular types ofpermit situations.— (1) Section 407 WaterQuality Certification. If the districtengineer determines that water qualitycertification for the proposed activity isnecessary under the provisions of section401 of the Clean Water Act, he shall sonotify the applicant and obtain from him orthe certifying agency a copy of suchcertification.

(i) The public notice for such activity,which will contain a statement oncertification requirements (see §325.3(a)(8)), will serve as the notificationto the Administrator of the EnvironmentalProtection Agency (EPA) pursuant tosection 401(a)(2) of the Clean Water Act.If EPA determines that the proposeddischarge may affect the quality of thewaters of any state other than the state inwhich the discharge will originate, it willso notify such other state, the districtengineer, and the applicant. If such noticeor a request for supplemental informationis not received within 30 days of issuanceof the public notice, the district engineerwill assume EPA has made a negativedetermination with respect to section401(a)(2). If EPA determines anotherstate’s waters may be affected, such statehas 60 days from receipt of EPA’s noticeto determine if the proposed discharge willaffect the quality of its waters so as toviolate any water quality requirement insuch state, to notify EPA and the districtengineer in writing of its objection topermit issuance, and to request a publichearing. If such occurs, the districtengineer will hold a public hearing in theobjecting state. Except as stated below, thehearing will be conducted in accordancewith 33 CFR Part 327. The issues to beconsidered at the public hearing will belimited to water quality impacts. EPA willsubmit its evaluation andrecommendations at the hearing withrespect to the state’s objection to permitissuance. Based upon therecommendations of the objecting state,EPA, and any additional evidencepresented at the hearing, the districtengineer will condition the permit, ifissued, in such a manner as may benecessary to insure compliance with

applicable water quality requirements. Ifthe imposition of conditions cannot, in thedistrict engineer’s opinion, insure suchcompliance, he will deny the permit.

(ii) No permit will be granted untilrequired certification has been obtained orhas been waived. A waiver may beexplicit, or will be deemed to occur if thecertifying agency fails or refuses to act ona request for certification within sixty daysafter receipt of such a request unless thedistrict engineer determines a shorter orlonger period is reasonable for the state toact. In determining whether or not a waiverperiod has commenced or waiver hasoccurred, the district engineer will verifythat the certifying agency has received avalid request for certification. If, however,special circumstances identified by thedistrict engineer require that action on anapplication be taken within a more limitedperiod of time, the district engineer shalldetermine a reasonable lesser period oftime, advise the certifying agency of theneed for action by a particular date, andthat, if certification is not received by thatdate, it will be considered that therequirement for certification has beenwaived. Similarly, if it appears thatcircumstances may reasonably require aperiod of time longer than sixty days, thedistrict engineer, based on informationprovided by the certifying agency, willdetermine a longer reasonable period oftime, not to exceed one year, at which timea waiver will be deemed to occur.

(2) Coastal Zone ManagementConsistency. If the proposed activity is tobe undertaken in a state operating under acoastal zone management programapproved by the Secretary of Commercepursuant to the Coastal Zone Management(CZM) Act (see 33 CFR 320.3(b)), thedistrict engineer shall proceed as follows:

(i) If the applicant is a federal agency,and the application involves a federalactivity in or affecting the coastal zone, thedistrict engineer shall forward a copy ofthe public notice to the agency of the stateresponsible for reviewing the consistencyof federal activities. The federal agencyapplicant shall be responsible forcomplying with the CZM Act’s directivefor ensuring that federal agency activitiesare undertaken in a manner which isconsistent, to the maximum extentpracticable, with approved CZMPrograms. (See 15 CFR Part 930.) If thestate coastal zone agency objects to theproposed federal activity on the basis of itsinconsistency with the state’s approvedCZM Program, the district engineer shallnot make a final decision on theapplication until the disagreeing partieshave had an opportunity to utilize the

procedures specified by the CZM Act forresolving such disagreements.

(ii) If the applicant is not a federalagency and the application involves anactivity affecting the coastal zone, thedistrict engineer shall obtain from theapplicant a certification that his proposedactivity complies with and will beconducted in a manner that is consistentwith the approved state CZM Program.Upon receipt of the certification, thedistrict engineer will forward a copy of thepublic notice (which will include theapplicant’s certification statement) to thestate coastal zone agency and request itsconcurrence or objection. If the stateagency objects to the certification or issuesa decision indicating that the proposedactivity requires further review, the districtengineer shall not issue the permit until thestate concurs with the certificationstatement or the Secretary of Commercedetermines that the proposed activity isconsistent with the purposes of the CZMAct or is necessary in the interest ofnational security. If the state agency failsto concur or object to a certificationstatement within six months of the stateagency’s receipt of the certificationstatement, state agency concurrence withthe certification statement shall beconclusively presumed. District engineerswill seek agreements with state CZMagencies that the agency’s failure toprovide comments during the public noticecomment period will be considered as aconcurrence with the certification orwaiver of the right to concur or non-concur.

(iii) If the applicant is requesting apermit for work on Indian reservationlands which are in the coastal zone, thedistrict engineer shall treat the applicationin the same manner as prescribed for aFederal applicant in paragraph (b)(2)(i) ofthis section. However, if the applicant isrequesting a permit on non-trust Indianlands, and the state CZM agency hasdecided to assert jurisdiction over suchlands, the district engineer shall treat theapplication in the same manner asprescribed for a non-Federal applicant inparagraph (b)(2)(ii) of this section.

(3) Historic Properties. If the proposedactivity would involve any property listedor eligible for listing in the NationalRegister of Historic Places, the districtengineer will proceed in accordance withCorps National Historic Preservation Actimplementing regulations.


(4) Activities Associated with FederalProjects. If the proposed activity wouldconsist of the dredging of an accesschannel and/or berthing facility associatedwith an authorized federal navigationproject, the activity will be included in theplanning and coordination of theconstruction or maintenance of the federalproject to the maximum extent feasible.Separate notice, hearing, andenvironmental documentation will not berequired for activities so included andcoordinated, and the public notice issuedby the district engineer for these federaland associated non-federal activities willbe the notice of intent to issue permits forthose included non-federal dredgingactivities, The decision whether to issue ordeny such a permit will be consistent withthe decision on the federal project unlessspecial considerations applicable to theproposed activity are identified. (See §322.5(c).)

(5) Endangered Species. Applicationswill be reviewed for the potential impacton threatened or endangered speciespursuant to section 7 of the EndangeredSpecies Act as amended. The districtengineer will include a statement in thepublic notice of his current knowledge ofendangered species based on his initialreview of the application (see 33 CFR325.2(a)(2)). If the district engineerdetermines that the proposed activitywould not affect listed species or theircritical habitat, he will include a statementto this effect in the public notice. If hefinds the proposed activity may affect anendangered or threatened species or theircritical habitat, he will initiate formalconsultation procedures with the U.S. Fishand Wildlife Service or National MarineFisheries Service. Public noticesforwarded to the U.S. Fish and WildlifeService or National Marine FisheriesService will serve as the request forinformation on whether any listed orproposed to be listed endangered orthreatened species may be present in thearea which would be affected by theproposed activity. pursuant to section 7(c)of the Act. References, definitions, andconsultation procedures are found in 50CFR Part 402.

(c) (Reserved)

(d) Timing of processing ofapplications. The district engineer will beguided by the following time limits for theindicated steps in the evaluation process:

(1) The public notice will be issuedwithin 15 days of receipt of all informationrequired to be submitted by the applicantin accordance with paragraph 325.1.(d) ofthis Part.

(2) The comment period on the public

notice should be for a reasonable period oftime within which interested parties mayexpress their views concerning the permit.The comment period should not be morethan 30 days nor less than 15 days fromthe date of the notice. Before designatingcomment periods less than 30 days, thedistrict engineer will consider: (1) Whetherthe proposal is routine or noncontroversial,(ii) mail time and need for comments fromremote areas, (iii) comments from similarproposals, and (iv) the need for a site visit.After considering the length of the originalcomment period, paragraphs (a)(2) (i)through (iv) of this section, and otherpertinent factors, the district engineer mayextend the comment period up to anadditional 30 days if warranted.

(3) District engineers will decide on allapplications not later than 60 days afterreceipt of a complete application, unless (i)precluded as a matter of law or proceduresrequired by law (see below). (ii) the casemust be referred to higher authority (see §325.8 of this Part), (iii) the commentperiod is extended, (iv) a timely submittalof information or comments is not receivedfrom the applicant, (v) the processing issuspended at the request of the applicant,or (vi) information needed by the districtengineer for a decision on the applicationcannot reasonably be obtained within the60-day period. Once the cause forpreventing the decision from being madewithin the normal 60-day period has beensatisfied or eliminated, the 60-day clockwill start running again from where it wassuspended. For example, if the commentperiod is extended by 30 days, the districtengineer will, absent other restraints,decide on the application within 90 days ofreceipt of a complete application. Certainlaws (e.g., the Clean Water Act, the CZMAct, the National Environmental PolicyAct, the National Historic PreservationAct, the Preservation of Historical andArcheological Data Act, the EndangeredSpecies Act, the Wild and Scenic RiversAct, and the Marine Protection, Researchand Sanctuaries Act) require proceduressuch as state or other federal agencycertifications, public hearings,environmental impact statements,consultation, special studies, and testingwhich may prevent district engineers frombeing able to decide certain applicationswithin 60 days.

(4) Once the district engineer hassufficient information to make his publicinterest determination, he should decidethe permit application even though otheragencies which may have regulatoryjurisdiction have not yet granted theirauthorizations, except where suchauthorizations are, by federal law, aprerequisite to making a decision on theDA permit application. Permits granted

prior to other (non-prerequisite)authorizations by other agencies should,where appropriate, be conditioned in suchmanner as to give those other authoritiesan opportunity to undertake their reviewwithout the applicant biasing such reviewby making substantial resourcecommitments on the basis of the DApermit. In unusual cases the districtengineer may decide that due to the natureor scope of a specific proposal, it would beprudent to defer taking final action untilanother agency has acted on itsauthorization. In such cases, he may advisethe other agency of his position on the DApermit while deferring his final decision.

(5) The applicant will be given areasonable time, not to exceed 30 days. torespond to requests of the district engineer.The district engineer may make suchrequests by certified letter and clearlyinform the applicant that if he does notrespond with the requested information ora justification why additional time isnecessary, then his application will beconsidered withdrawn or a final decisionwill be made, whichever is appropriate. Ifadditional time is requested, the districtengineer will either grant the time, make afinal decision, or consider the applicationas withdrawn,

(6) The time requirements in theseregulations are in terms of calendar daysrather than in terms of working days.

(e) Alternative procedures. Division anddistrict engineers are authorized to usealternative procedures as follows:

(1) Letters of permission. Letters ofpermission are a type of permit issuedthrough an abbreviated processingprocedure which includes coordinationwith Federal and state fish and wildlifeagencies, as required by the Fish andWildlife Coordination Act, and a publicinterest evaluation, but without thepublishing of an individual public notice.The letter of permission will not be used toauthorize the transportation of dredgedmaterial for the purpose of dumping it inocean waters. Letters of permission maybe used:

(i) In those cases subject to section 10 ofthe Rivers and Harbors Act of 1899 when,in the opinion of the district engineer, theproposed work would be minor, would nothave significant individual or cumulativeimpacts on environmental values, andshould encounter no appreciableopposition.

(ii) In those cases subject to section 404of the Clean Water Act after:

(A) The district engineer, throughconsultation with Federal and state fishand wildlife agencies, the Regional


Administrator, Environmental ProtectionAgency, the state water quality certifyingagency, and, if appropriate, the stateCoastal Zone Management Agency,develops a list of categories of activitiesproposed for authorization under LOPprocedures;

(B) The district engineer issues a publicnotice advertising the proposed list and theLOP procedures, requesting comments andoffering an opportunity for public hearing;and

(C) A 401 certification has been issuedor waived and, if appropriate, CZMconsistency concurrence obtained orpresumed either on a generic or individualbasis.

(2) Regional permits. Regional permitsare a type of general permit as defined in33 CFR 322.2(f) and 33 CFR 323.2(n).They may be issued by a division ordistrict engineer after compliance with theother procedures of this regulation. After aregional permit has been issued, individualactivities falling within those categoriesthat are authorized by such regionalpermits do not have to be furtherauthorized by the procedures of thisregulation. The issuing authority willdetermine and add appropriate conditionsto protect the public interest. When theissuing authority determines on a case-by-case basis that the concerns for the aquaticenvironment so indicate, he may exercisediscretionary authority to override theregional permit and require an individualapplication and review. A regional permitmay be revoked by the issuing authority ifit is determined that it is contrary to thepublic interest provided the procedures of§ 325.7 of this Part are followed.Following revocation, applications forfuture activities in areas covered by theregional permit shall be processed asapplications for individual permits. Noregional permit shall be issued for a periodof more than five years.

(3) Joint procedures. Division anddistrict engineers are authorized andencouraged to develop joint procedureswith states and other Federal agencies withongoing permit programs for activities alsoregulated by the Department of the Army.Such procedures may be substituted for theprocedures in paragraphs (a)(1) through(a)(5) of this section provided that thesubstantive requirements of those sectionsare maintained. Division and districtengineers are also encouraged to developmanagement techniques such as jointagency review meetings to expedite thedecision-making process. However, indoing so, the applicant’s rights to a fullpublic interest review and independent

decision by the district or division engineermust be strictly observed.

(4) Emergency procedures. Divisionengineers are authorized to approve specialprocessing procedures in emergencysituations. An “emergency” is a situationwhich would result in an unacceptablehazard to life, a significant loss ofproperty, or an immediate, unforeseen, andsignificant economic hardship if correctiveaction requiring a permit is not undertakenwithin a time period less than the normaltime needed to process the applicationunder standard procedures. In emergencysituations, the district engineer will explainthe circumstances and recommend specialprocedures to the division engineer whowill instruct the district engineer as tofurther processing of the application. Evenin an emergency situation, reasonableefforts will be made to receive commentsfrom interested Federal, state, and localagencies and the affected public. Also,notice of any special proceduresauthorized and their rationale is to beappropriately published as soon aspracticable.

§ 325.3 Public notice.

(a) General. The public notice is theprimary method of advising all interestedparties of the proposed activity for which apermit is sought and of solicitingcomments and information necessary toevaluate the probable impact on the publicinterest. The notice must, therefore,include sufficient information to give aclear understanding of the nature andmagnitude of the activity to generatemeaningful comment. The notice shouldinclude the following items of information:

(1) Applicable statutory authority orauthorities;

(2) The name and address of theapplicant;

(3) The name or title, address andtelephone number of the Corps employeefrom whom additional informationconcerning the application may beobtained;

(4) The location of the proposedactivity;

(5) A brief description of the proposedactivity, its purpose and intended use, so asto provide sufficient informationconcerning the nature of the activity togenerate meaningful comments, includinga description of the type of structures, ifany, to be erected on fills or pile or float-supported platforms, and a description ofthe type, composition, and quantity ofmaterials to be discharged or disposed ofin the ocean;

(6) A plan and elevation drawingshowing the general and specific sitelocation and character of all proposed

activities, including the size relationship ofthe proposed structures to the size of theimpacted waterway and depth of water inthe area;

(7) If the proposed activity would occurin the territorial seas or ocean waters, adescription of the activity’s relationship tothe baseline from which the territorial seais measured;

(8) A list of other governmentauthorizations obtained or requested by theapplicant, including required certificationsrelative to water quality, coastal zonemanagement, or marine sanctuaries;

(9) If appropriate, a statement that theactivity is a categorical exclusion forpurposes of NEPA (see paragraph 7 ofAppendix B to 33 CFR Part 230);

(10) A statement of the districtengineer’s current knowledge on historicproperties;

(11) A statement of the districtengineer’s current knowledge onendangered species (see § 325.2(b)(5));

(12) A statement(s) on evaluationfactors (see § 325.3(c));

(13) Any other available informationwhich may assist interested parties inevaluating the likely impact of theproposed activity, if any, on factorsaffecting the public interest;

(14) The comment period based on §325.2(d)(2);

(15) A statement that any person mayrequest, in writing, within the commentperiod specified in the notice, that a publichearing be held to consider the application.Requests for public hearings shall state,with particularity, the reasons for holding apublic hearing;

(16) For non-federal applications instates with an approved CZM Plan, astatement on compliance with theapproved Plan; and

(17) In addition, for section 103 (oceandumping) activities:

(i) The specific location of the proposeddisposal site and its physical boundaries;

(ii) A statement as to whether theproposed disposal site has been designatedfor use by the Administrator, EPA,pursuant to section 102(c) of the Act;

(iii) If the proposed disposal site has notbeen designated by the Administrator,EPA, a description of the characteristics ofthe proposed disposal site and anexplanation as to why no previouslydesignated disposal site is feasible;

(iv) A brief description of knowndredged material discharges at theproposed disposal site;

(v) Existence and documented effects ofother authorized disposals that have beenmade in the disposal area (e.g.,


heavy metal background reading andorganic carbon content);

(vi) An estimate of the length of timeduring which disposal would continue atthe proposed site; and

(vii) Information on the characteristicsand composition of the dredged material.

(b) Public notice for general permits.District engineers will publish a publicnotice for all proposed regional generalpermits and for significant modificationsto, or reissuance of, existing regionalpermits within their area of jurisdiction.Public notices for statewide regionalpermits may be issued jointly by theaffected Corps districts. ‘The notice willinclude all applicable informationnecessary to provide a clear understandingof the proposal. In addition, the notice willstate the availability of information at thedistrict office which reveals the Corps’provisional determination that theproposed activities comply with therequirements for issuance of generalpermits. District engineers will publish apublic notice for nationwide permits inaccordance with 33 CFR 330.4.

(c) Evaluation factors. A paragraphdescribing the various evaluation factorson which decisions are based shall beincluded in every public notice.

(1) Except as provided in paragraph(c)(3) of this section, the following will beincluded:

“The decision whether to issue a permit willbe based on an evaluation of the probableimpact including cumulative impacts of theproposed activity on the public interest. Thatdecision will reflect the national concern forboth protection and utilization of importantresources. The benefit which reasonably may beexpected to accrue from the proposal must bebalanced against its reasonably foreseeabledetriments. All factors which may be relevant tothe proposal will be considered including thecumulative effects thereof; among those areconservation, economics, aesthetics, generalenvironmental concerns, wetlands, historicproperties, fish and wildlife values, floodhazards, floodplain values, land use, navigation,shoreline erosion and accretion, recreation,water supply and conservation, water quality,energy needs, safety, food and fiber production,mineral needs, considerations of propertyownership and, in general, the needs andwelfare of the people.”

(2) If the activity would involve thedischarge of dredged or fill material intothe waters of the United States or thetransportation of dredged material for thepurpose of disposing of it in ocean waters,the public notice shall also indicate that theevaluation of the impact of the activity onthe public interest will include applicationof the guidelines promulgated by theAdministrator, EPA, (40 CFR Part 230) orof the criteria established under authority

of section 102(a) of the Marine Protection,Research and Sanctuaries Act of 1972, asamended (40 CFR Parts 220 to 229), asappropriate. (See 33 CFR Parts 323 and324).

(3) In cases involving construction ofartificial islands, installations and otherdevices on outer continental shelf landswhich are under mineral lease from theDepartment of the Interior, the notice willcontain the following statement:“The decision as to whether a permit willbe issued will be based on an evaluation ofthe impact of the proposed work onnavigation and national security.”

(d) Distribution of public notices. (1)Public notices will be distributed forposting in post offices or other appropriatepublic places in the vicinity of the site ofthe proposed work and will be sent to theapplicant, to appropriate city and countyofficials, to adjoining property owners, toappropriate state agencies, to appropriateIndian Tribes or tribal representatives, toconcerned Federal agencies, to local,regional and national shipping and otherconcerned business and conservationorganizations, to appropriate River BasinCommissions, to appropriate state andareawide clearing houses as prescribed byOMB Circular A— 95, to local news mediaand to any other interested party. Copies ofpublic notices will be sent to all partieswho have specifically requested copies ofpublic notices, to the U.S. Senators andRepresentatives for the area where thework is to be performed, the fieldrepresentative of the Secretary of theInterior, the Regional Director of the Fishand Wildlife Service, the RegionalDirector of the National Park Service, theRegional Administrator of theEnvironmental Protection Agency (EPA),the Regional Director of the NationalMarine Fisheries Service of the NationalOceanic and Atmospheric Administration(NOAA), the head of the state agencyresponsible for fish and wildlife resources,the State Historic Preservation Officer, andthe District Commander, U.S. CoastGuard.

(2) In addition to the generaldistribution of public notices cited above,notices will be sent to other addressees inappropriate cases as follows:

(i) If the activity would involvestructures or dredging along the shores ofthe seas or Great Lakes, to the CoastalEngineering Research Center, Washington,DC 20010.

(ii) If the activity would involveconstruction of fixed structures or artificialislands on the outer continental shelf or inthe territorial seas, to the AssistantSecretary of Defense (Manpower,Installations, and Logistics (ASD(MI&L)),

Washington, DC 20310; the Director,Defense Mapping Agency (HydrographicCenter) Washington, DC 20390, Attention,Code NS12; and the Charting andGeodetic Services, N/ CG222, NationalOcean Service NOAA, Rockville,Maryland 20852, and to affected militaryinstallations and activities.

(iii) If the activity involves theconstruction of structures to enhance fishpropagation (e.g., fishing reefs) along thecoasts of the United States, to the Director,Office of Marine Recreational Fisheries,National Marine Fisheries Service,Washington, DC 20235.

(iv) If the activity involves theconstruction of structures which mayaffect aircraft operations or for purposesassociated with seaplane operations, to theRegional Director of the Federal AviationAdministration.

(v) If the activity would be inconnection with a foreign-trade zone, tothe Executive Secretary, Foreign-TradeZones Board, Department of Commerce,Washington, DC 20230 and to theappropriate District Director of Customs asResident Representative, Foreign TradeZones Board.

(3) It is presumed that all interestedparties and agencies will wish to respondto public notices; therefore, a lack ofresponse will be interpreted as meaningthat there is no objection to the proposedproject. A copy of the public notice withthe list of the addresses to whom the noticewas sent will be included in the record. If aquestion develops with respect to anactivity for which another agency hasresponsibility and that other agency hasnot responded to the public notice, thedistrict engineer may request itscomments. Whenever a response to apublic notice has been received from amember of Congress, either in behalf of aconstituent or himself, the district engineerwill inform the member of Congress of thefinal decision.

(4) District engineers will update publicnotice mailing lists at least once every twoyears.

§ 325.4. Conditioning of permits.

(a) District engineers will add specialconditions to Department of the Armypermits when such conditions arenecessary to satisfy legal requirements orto otherwise satisfy the public interestrequirement. Permit conditions will bedirectly related to the impacts of theproposal, appropriate to the scope anddegree of those impacts, and reasonablyenforceable.


(1) Legal requirements which may besatisfied by means of Corps permitconditions include compliance with the404(b)(1) guidelines, the EPA oceandumping criteria, the Endangered SpeciesAct, and requirements imposed byconditions on state section 401 waterquality certifications.

(2) Where appropriate, the districtengineer may take into account theexistence of controls imposed under otherfederal, state, or local programs whichwould achieve the objective of the desiredcondition, or the existence of anenforceable agreement between theapplicant and another party concerned withthe resource in question, in determiningwhether a proposal complies with the404(b)(1) guidelines. ocean dumpingcriteria, and other applicable statutes, andis not contrary to the public interest. Insuch cases, the Department of the Armypermit will be conditioned to state thatmaterial changes in, or a failure toimplement and enforce such program oragreement, will be grounds for modifying,suspending, or revoking the permit.

(3) Such conditions may beaccomplished on-site, or may beaccomplished off-site for mitigation ofsignificant losses which are specificallyidentifiable, reasonably likely to occur.and of importance to the human or aquaticenvironment.

(b) District engineers are authorized toadd special conditions, exclusive ofparagraph (a) of this section, at theapplicant’s request or to clarify the permitapplication.

(c) If the district engineer determinesthat special conditions are necessary toinsure the proposal will not be contrary tothe public interest, but those conditionswould not be reasonably implementable orenforceable, he will deny the permit.

(d) Bonds, lithe district engineer hasreason to consider that the permittee mightbe prevented from completing work whichis necessary to protect the public interest,he may require the permittee to post abond of sufficient amount to indemnify thegovernment against any loss as a result ofcorrective action it might take.

§ 325.5 Forms of permits.(a) General discussion. (1) DA permits

under this regulation will be in the form ofindividual permits or general permits. Thebasic format shall be ENG Form 1721, DAPermit (Appendix A).

(2) The general conditions included inENG Form 1721 are normally applicableto all permits; however, some conditions

may not apply to certain permits and maybe deleted by the issuing officer. Specialconditions applicable to thespecific activity will be included in thepermit as necessary to protect the publicinterest in accordance with Section 325.4of this Part.

(b) Individual permits— (1) Standardpermits. A standard permit is one whichhas been processed through the publicinterest review procedures, includingpublic notice and receipt of comments,described throughout this Part. Thestandard individual permit shall be issuedusing ENG Form 1721.

(2) Letters of permission. A letter ofpermission will be issued whereprocedures of paragraph 325.2(e)(1) havebeen followed. It will be in letter form andwill identify the permittee, the authorizedwork and location of the work, thestatutory authority, any limitations on thework, a construction time limit and arequirement for a report of completedwork. A copy of the relevant generalconditions from ENG Form 1721 will beattached and will be incorporated byreference into the letter of permission.

(c) General permits— (i) Regionalpermits. Regional permits are a type ofgeneral permit. They may be issued by adivision or district engineer aftercompliance with the other procedures ofthis regulation. if the public interest sorequires, the issuing authority maycondition the regional permit to require acase-by-case reporting andacknowledgment system. However, noseparate applications or other authorizationdocuments will be required.

(2) Nationwide permits. Nationwidepermits are a type of general permit andrepresent DA authorizations that have beenissued by the regulation (33 CFR Part 330)for certain specified activities nationwide.If certain conditions are met, the specifiedactivities can take place without the needfor an individual or regional permit.

(3) Programmatic permits.Programmatic permits are a type of generalpermit founded on an existing state, localor other Federal agency program anddesigned to avoid duplication with thatprogram.

(d) Section 9 permits. Permits forstructures in interstate navigable waters ofthe United States under section 9 of theRivers and Harbors Act of 1899 will bedrafted at DA level.

§ 325.6 Duration of permits.(a) General. DA permits may authorize

both the work and the resulting use.Permits continue in effect until theyautomatically expire or are modified,

suspended, or revoked.(b) Structures. Permits for the existence

of a structure or other activity of apermanent nature are usually for anindefinite duration with no expiration datecited. However, where a temporarystructure is authorized, or whererestoration of a waterway is contemplated,the permit will be of limited duration witha definite expiration date.

(c) Works. Permits for constructionwork, discharge of dredged or fill material,or other activity and any constructionperiod for a structure with a permit ofindefinite duration under paragraph (b) ofthis section will specify time limits forcompleting the work or activity. Thepermit may also specify a date by whichthe work must be started, normally withinone year from the date of issuance. Thedate will be established by the issuingofficial and will provide reasonable timesbased on the scope and nature of the workinvolved. Permits issued for the transportof dredged material for the purpose ofdisposing of it in ocean waters will specifya completion date for the disposal not toexceed three years from the date of permitissuance.

(d) Extensions of time. An authorizationor construction period will automaticallyexpire if the permittee fails to request andreceive an extension of time. Extensions oftime may be granted by the districtengineer. The permittee must request theextension and explain the ba8is of therequest, which will be granted unless thedistrict engineer determines that anextension would be contrary to the publicinterest. Requests for extensions will beprocessed in accordance with the regularprocedures of § 325.2 of this Part,including issuance of a public notice,except that such processing is not requiredwhere the district engineer determines thatthere have been no significant changes inthe attendant circumstances since theauthorization was issued.

(e) Maintenance dredging. litheauthorized work includes periodicmaintenance dredging, an expiration datefor the authorization of that maintenancedredging will be included in the permit.The expiration date, which in no event isto exceed ten years from the date ofissuance of the permit, will be establishedby the issuing official after evaluation ofthe proposed method of dredging anddisposal of the dredged material inaccordance with the requirements of 33CFR Parts 320 to 325. In such cases, thedistrict engineer shall require notificationof the maintenance dredging prior to actualperformance to insure continuedcompliance with the requirements of thisregulation and 33 CFR Parts 320 to 324. Ifthe permittee desires to continuemaintenance


dredging beyond the expiration date, hemust request a new permit. The permitteeshould be advised to apply for the newpermit six months prior to the time hewishes to do the maintenance work.

§ 325.7 Modification, suspension, orrevocation of permits.

(a) General. The district engineer mayreevaluate the circumstances andconditions of any permit, includingregional permits, either on his own motion,at the request of the permittee, or a thirdparty, or as the result of periodic progressinspections, and initiate action to modify,suspend, or revoke a permit as may bemade necessary by considerations of thepublic interest. in the case of regionalpermits, this reevaluation may coverindividual activities, categories ofactivities, or geographic areas. Among thefactors to be considered are the extent ofthe permittee’s compliance with the termsand conditions of the permit; whether ornot circumstances relating to theauthorized activity have changed since thepermit was issued or extended. and thecontinuing adequacy of or need for thepermit conditions; any significantobjections to the authorized activity whichwere not earlier considered: revisions toapplicable statutory and/or regulatoryauthorities; and the extent to whichmodification, suspension, or other actionwould adversely affect plans, investmentsand actions the permittee has reasonablymade or taken in reliance on the permit.Significant increases in scope of apermitted activity will be processed as newapplications for permits in accordance with§ 325.2 of this Part, and not asmodifications under this section.

(b) Modification. Upon request by thepermittee or, as a result of reevaluation ofthe circumstances and conditions of apermit, the district engineer may determinethat the public interest requires amodification of the terms or conditions ofthe permit. In such cases, the districtengineer will hold informal consultationswith the permittee to ascertain whether theterms and conditions can be modified bymutual agreement. If a mutual agreementis reached on modification of the termsand conditions of the permit, the districtengineer will give the permittee writtennotice of the modification, which will thenbecome effective on such date as thedistrict engineer may establish, In theevent a mutual agreement cannot bereached by the district engineer and thepermittee, the district engineer willproceed in accordance with paragraph (c)of this section if immediate suspension iswarranted. In cases where immediatesuspension is not warranted but the district

engineer determines that the permit shouldbe modified, he will notify the permittee ofthe proposed modification and reasonstherefor, and that he may request a meetingwith the district engineer and/or a publichearing. The modification will becomeeffective on the date set by the districtengineer which shall be at least ten daysafter receipt of the notice by the permitteeunless a hearing or meeting is requestedwithin that period. If the permittee fails orrefuses to comply with the modification,the district engineer will proceed inaccordance with 33 CFR Part 326. Thedistrict engineer shall consult withresource agencies before modifying anypermit terms or conditions, that wouldresult in greater impacts, for a projectabout which that agency expressed asignificant interest in the term, condition,or feature being modified prior to permitissuance.

(c) Suspension. The district engineermay suspend a permit after preparing awritten determination and finding thatimmediate suspension would be in thepublic interest. The district engineer willnotify the permittee in writing by the mostexpeditious means available that thepermit has been suspended with thereasons therefor, and order the permittee tostop those activities previously authorizedby the suspended permit. The permitteewill also be advised that following thissuspension a decision will be made toeither reinstate, modify, or revoke thepermit, and that he may within 10 days ofreceipt of notice of the suspension, requesta meeting with the district engineer and/ ora public hearing to present information inthis matter. If a hearing is requested, theprocedures prescribed in 33 CFR Part 327will be followed. After the completion ofthe meeting or hearing (or within areasonable period of time after issuance ofthe notice to the permittee that the permithas been suspended if no hearing ormeeting is requested), the district engineerwill take action to reinstate, modify, orrevoke the permit.

(d) Revocation. Following completionof the suspension procedures in paragraph(c) of this section, if revocation of thepermit is found to be in the public interest,the authority who made the decision on theoriginal permit may revoke it. Thepermittee will be advised in writing of thefinal decision.

(e) Regional permits. The issuingofficial may, by following the proceduresof this section, revoke regional permits forindividual activities, categories ofactivities, or geographic areas. Wheregroups of permittees are involved, such asfor categories of activities or geographic

areas, the informal discussions provided inparagraph (b) of this section may bewaived and any written notification nay bemade through the general public noticeprocedures of this regulation. If a regionalpermit is revoked, any permittee may thenapply for an individual permit which shallbe processed in accordance with theseregulations.

§ 325.8 Authority to issue or denypermits

(a) General. Except as otherwiseprovided in this regulation, the Secretaryof the Army, subject to such conditions ashe or his authorized representative mayfrom time to time impose, has authorizedthe Chief of Engineers and his authorizedrepresentatives to issue or deny permits fordams or dikes in intrastate waters of theUnited States pursuant to section 9 of theRivers and Harbors Act of 1899; forconstruction or other work in or affectingnavigable waters of the United Statespursuant to section 10 of the Rivers andHarbors Act of 1899; for the discharge ofdredged or fill material into waters of theUnited States pursuant to section 404 ofthe Clean Water Act; or for thetransportation of dredged material for thepurpose of disposing of it into oceanwaters pursuant to section 103 of theMarine Protection, Research andSanctuaries Act of 1972, as amended. Theauthority to issue or deny permits ininterstate navigable waters of the UnitedStates pursuant to section 9 of the Riversand Harbors Act of March 3, 1899 has notbeen delegated to the Chief of Engineersor his authorized representatives.

(b) District engineer’s authority.District engineers are authorized to issueor deny permits in accordance with theseregulations pursuant to sections 9 and 10of the Rivers and Harbors Act of 1899;section 404 of the Clean Water Act; andsection 103 of the Marine Protection,Research and Sanctuaries Act of 1972, asamended, in all cases not required to bereferred to higher authority (see below). Itis essential to the legality of a permit that itcontain the name of the district engineer asthe issuing officer. However, the permitneed not be signed by the district engineerin person but may be signed for and inbehalf of him by whomever he designates,In cases where permits are denied forreasons other than navigation or failure toobtain required local, state, or other federalapprovals or certifications, the Statementof Findings must conclusively justify adenial decision. District


engineers are authorized to deny permitswithout issuing a public notice or takingother procedural steps where requiredlocal, state, or other federal permits for theproposed activity have been denied orwhere he determines that the activity willclearly interfere with navigation except inall cases required to be referred to higherauthority (see below). District engineersare also authorized to add, modify, ordelete special conditions in permits inaccordance with § 325.4 of this Part,except for those conditions which mayhave been imposed by higher authority,and to modify, suspend and revoke permitsaccording to the procedures of § 325.7 ofthis Part. District engineers will refer thefollowing applications to the divisionengineer for resolution:

(1) When a referral is required by awritten agreement between the head of aFederal agency and the Secretary of theArmy;

(2) When the recommended decision iscontrary to the written position of theGovernor of the state in which the workwould be performed;

(3) When there is substantial doubt as toauthority, law, regulations, or policiesapplicable to the proposed activity;

(4) When higher authority requests theapplication be forwarded for decision; or

(5) When the district engineer isprecluded by law or procedures requiredby law from taking final action on theapplication (e.g. section 9 of the Riversand Harbors Act of 1899, or territorial seabaseline changes).

(c) Division engineer’s authority.Division engineers will review andevaluate all permit applications referred bydistrict engineers. Division engineers mayauthorize the issuance or denial of permitspursuant to section 10 of the Rivers andHarbors Act of 1899; section 404 of theClean Water Act; and section103 of the Marine Protection, Researchand Sanctuaries Act of 1972, as amended;and the inclusion of conditions inaccordance with § 325.4 of this Part in allcases not required to be referred to theChief of Engineers.

Division engineers will refer thefollowing applications to the Chief ofEngineers for resolution:

(1) When a referral is required by awritten agreement between the head of aFederal agency and the Secretary of theArmy;

(2) When there is substantial doubt asto authority, law, regulations, or policiesapplicable to the proposed activity;

(3) When higher authority requests theapplication be forwarded for decision:or

(4) When the division engineer isprecluded by law or procedures required

by law from taking final action on theapplication.

§ 325.9 Authority to determinejurisdiction.

District engineers are authorized todetermine the area defined by the terms“navigable waters of the United States”and “waters of the United States” except:

(a) When a determination ofnavigability is made pursuant to 33 CFR329.14 (division engineers have thisauthority); or

(b) When EPA makes a section 404jurisdiction determination under itsauthority.

§ 325.10 Publicity.The district engineer will establish and

maintain a program to assure that potentialapplicants for permits are informed of therequirements of this regulation and of thesteps required to obtain permits foractivities in waters of the United States orocean waters. Whenever the districtengineer becomes aware of plans beingdeveloped by either private or publicentities which might require permits forimplementation, he should advise thepotential applicant in writing of thestatutory requirements and the provisionsof this regulation. Whenever the districtengineer is aware of changes in Corps ofEngineers regulatory jurisdiction, he willissue appropriate public notices.

Appendix A— Permit Form and SpecialConditions

A. Permit FormDepartment of the Army PermitPermittee ___________________________Permit No. __________________________Issuing Office _______________________

Note.— The term “you” and its derivatives, asused in this permit, means the permittee or anyfuture transferee. The term “this office” refers tothe appropriate district or division office of theCorps of Engineers having jurisdiction over thepermitted activity or the appropriate official ofthat office acting under the authority of thecommanding officer.

You are authorized to perform work inaccordance with the terms and conditionsspecified below.

Project Description: (Describe thepermitted activity and its intended use withreferences to any attached plans or drawingsthat are considered to be a part of the projectdescription. Include a description of the typesand quantities of dredged or fill materials to bedischarged in jurisdictional waters.)

Project Location: (Where appropriate,provide the names of and the locations on thewaters where the permitted activity and any off-site disposals will take place. Also, using name,distance, and direction, locate the permittedactivity in reference to a nearby landmark suchas a town or city.)

Permit Conditions:General Conditions:

1. The time limit for completing the workauthorized ends on ___________. If you findthat you need more time to complete theauthorized activity, submit your request for atime extension to this office for consideration atleast one month before the above date isreached.

2. You must maintain the activity authorizedby this permit in good condition and inconformance with the terms and conditions ofthis permit. You are not relieved of thisrequirement if you abandon the permittedactivity, although you may make a good faithtransfer to a third party in compliance withGeneral Condition 4 below. Should you wish tocease to maintain the authorized activity orshould you desire to abandon it without a goodfaith transfer, you must obtain a modification ofthis permit from this office, which may requirerestoration of the area.

3. If you discover any previously unknownhistoric or archeological remains whileaccomplishing the activity authorized by thispermit, you must immediately notify this officeof what you have found. We will initiate theFederal and state coordination required todetermine if the remains warrant a recoveryeffort or if the site is eligible for listing in theNational Register of Historic Places.

4. If you sell the property associated with thispermit, you must obtain the signature of the newowner in the space provided and forward a copyof the permit to this office to validate thetransfer of this authorization.

5. If a conditioned water quality certificationhas been issued for your project. you mustcomply with the conditions specified in thecertification as special conditions to this permit.For your convenience, a copy of the certificationis attached if it contains such conditions.

6. You must allow representatives from thisoffice to inspect the authorized activity at anytime deemed necessary to ensure that it is beingor has been accomplished in accordance withthe terms and conditions of your permit.

Special Conditions: (Add special conditionsas required in this space with reference to acontinuation sheet if necessary.)

Further Information:1. Congressional Authorities: You have been

authorized to undertake the activity describedabove pursuant to:

( ) Section 10 of the Rivers and Harbors Actof 1899 (33 U.S.C. 403).

( ) Section 404 of the Clean Water Act (33U.S.C. 1344).

( ) Section 103 of the Marine Protection,Research and Sanctuaries Act of 1972 (33U.S.C. 1410).

2. Limits of this authorization.a. This permit does not obviate the need to

obtain other Federal, state, or localauthorizations required by law.

b. This permit does not grant any propertyrights or exclusive privileges.

c. This permit does not authorize any injuryto the property or rights of others.


d. This permit does not authorize interferencewith any existing or proposed Federal project.

3. Limits of Federal Liability. In issuing thispermit, the Federal Government does notassume any liability for the following:

a. Damages to the permitted project or usesthereof as a result of other permitted orunpermitted activities or from natural causes.

b. Damages to the permitted project or usesthereof as a result of current or future activitiesundertaken by or on behalf of the United Statesin the public interest.

c. Damages to persons, property, or to otherpermitted or unpermitted activities or structurescaused by the activity authorized by this permit.

d. Design or construction deficienciesassociated with the permitted work.

e. Damage claims associated with any futuremodification, suspension, or revocation of thispermit.

4. Reliance on Applicant’s Data: Thedetermination of this office that issuance of thispermit is not contrary to the public interest wasmade in reliance on the information youprovided.

5. Reevaluation of Permit Decision. Thisoffice may reevaluate its decision on this permitat any time the circumstance8 warrant.Circumstances that could require a reevaluationinclude, but are not limited to, the following:

a. You fail to comply with the terms andconditions of this permit.

b. The information provided by you insupport of your permit application proves tohave been false, incomplete, or inaccurate (See4 above).

c. Significant new information surfaceswhich this office did not consider in reachingthe original public interest decision.

Such a reevaluation may result in adetermination that it is appropriate to use thesuspension, modification, and revocationprocedures contained in 33 CFR 325.7 orenforcement procedures such as those containedin 33 CFR 326.4 and 326.5. The referencedenforcement procedures provide for the issuanceof an administrative order requiring you tocomply with the terms and conditions of yourpermit and for the initiation of legal actionwhere appropriate. You will be required to payfor any corrective measures ordered by thisoffice, and if you fail to comply with suchdirective, this office may in certain situations(such as those specified in 33 CFR 209.170)accomplish the corrective measures by contractor otherwise and bill you for the cost.

6. Extensions. General condition 1 establishesa time limit for the completion of the activityauthorized by this permit. Unless there arecircumstances requiring either a promptcompletion of the authorized activity or areevaluation of the public interest decision, theCorps will normally give favorableconsideration to a request for an extension ofthis time limit.

Your signature below, as permittee, indicatesthat you accept and agree to comply with theterms and conditions of this permit.

_________________________________

Permittee

_________________________________

(Date)

This permit becomes effective when theFederal official, designated to act for theSecretary of the Army, has signed below.

_________________________________(District Engineer_________________________________(Date)

When the structures or work authorized bythis permit are still in existence at the time theproperty is transferred, the terms and conditionsof this permit will continue to be binding on thenew owner(s) of the property. To validate thetransfer of this permit and the associatedliabilities associated with compliance with itsterms and conditions, have the transferee signand date below.

__________________________________(Transferee)__________________________________(Date)

B. Special Conditions. No special conditionswill be preprinted on the permit form. Thefollowing and other special conditions should beadded, as appropriate, in the space providedafter the general conditions or on a referencedcontinuation sheet:

1. Your use of the permitted activity must notinterfere with the public’s right to freenavigation on all navigable waters of the UnitedStates.

2. You must have a copy of this permitavailable on the vessel used for the authorizedtransportation and disposal of dredged material.

3. You must advise this office in writing, atleast two weeks before you start maintenancedredging activities under the authority of thispermit.

4. You must install and maintain, at yourexpense, any safety lights and signals prescribedby the United States Coast Guard (USCG),through regulations or otherwise, on yourauthorized facilities. The USCG may be reachedat the following address and telephone number:

____________________________________________________________________

5. The condition below will be used when aCorps permit authorizes an artificial reef, anaerial transmission line, a submerged cable orpipeline, or a structure on the outer continentalshelf.

National Ocean Service (NOS) has beennotified of this authorization. You must notifyNOS and this office in writing, at least twoweeks before you begin work and uponcompletion of the activity authorized by thispermit. Your notification of completion mustinclude a drawing which certifies the locationand configuration of the completed activity (acertified permit drawing may be used).Notifications to NOS will be sent to thefollowing address: The Director, NationalOcean Service (N/CG 222), Rockville,Maryland 20852.

6. The following condition should be used forevery permit where legal recordation of thepermit would be reasonably practicable andrecordation could put a subsequent purchaser orowner of property on notice of permitconditions.

You must take the actions required to recordthis permit with the Registrar of Deeds or otherappropriate official charged with theresponsibility for maintaining records of title toor interest in real property.

Appendix B— (Reserved) (For FutureNEPA Regulation)

Appendix C---(Reserved) (For HistoricProperties Regulation)

PART 326— ENFORCEMENT

Sec.326.1 Purpose.326.2 Policy.326.3 Unauthorized activities.328.4 Supervision of authorized activities.326.5 Legal action.

Authority: 33 U.S.C. 401 et seq.: 33U.S.C. 1344: 33 U.S.C. 1413.

§ 326.1 Purpose.This Part prescribes enforcement

policies (§ 326.2) and proceduresapplicable to activities performed withoutrequired Department of the Army permits(§ 326.3) and to activities not incompliance with the terms and conditionsof issued Department of the Army permits(§ 326.4). Procedures for initiating legalactions are prescribed in § 326.5. Nothingcontained in this Part shall establish a non-discretionary duty on the part of districtengineers nor shall deviation from theseprocedures give rise to a private right ofaction against a district engineer.

§ 326.2 Policy.Enforcement, as part of the overall

regulatory program of the Corps, is basedon a policy of regulating the waters of theUnited States by discouraging activitiesthat have not been properly authorized andby requiring corrective measures, whereappropriate, to ensure those waters are notmisused and to maintain the integrity ofthe program. There are several methodsdiscussed in the remainder of this partwhich can be used either singly or incombination to implement this policy,while making the most effective use of theenforcement resources available. As EPAhas independent enforcement authorityunder the Clean Water Act forunauthorized discharges, the districtengineer should normally coordinate withEPA to determine the most effective andefficient manner by which resolution of asection 404 violation can be achieved.

§ 326.3 Unauthorized activities.

(a) Surveillance. To detect unauthorizedactivities requiring permits, districtengineers should make the best use of allavailable resources.


Corps employees; members of the public;and representatives of state. local, andother Federal agencies should beencouraged to report suspected violations.Additionally, district engineers shouldconsider developing joint surveillanceprocedures with Federal, state, or localagencies having similar regulatoryresponsibilities, special expertise, orinterest.

(b) Initial investigation. Districtengineers should take steps to investigatesuspected violations in a timely manner.The scheduling of investigations willreflect the nature and location of thesuspected violations, the anticipatedimpacts, and the most effective use ofinspection resources available to thedistrict engineer. These investigationsshould confirm whether a violation exists,and if so, will identify the extent of theviolation and the parties responsible.

(c) Formal notifications to partiesresponsible for violations. Once the districtengineer has determined that a violationexists, he should take appropriate steps tonotify the responsible parties.

(1) If the violation involves a projectthat is not complete, the district engineer’snotification should be in the form of acease and desist order prohibiting anyfurther work pending resolution of theviolation in accordance with theprocedures contained in this part. Seeparagraph (c)(4) of this section forexception to this procedure.

(2) If the violation involves a completedproject, a cease and desist order should notbe necessary. However, the districtengineer should still notify the responsibleparties of the violation.

(3) All notifications, pursuant toparagraphs (c) (1) and (2) of this section,should identify the relevant statutoryauthorities, indicate potential enforcementconsequences and direct the responsibleparties to submit any additionalinformation that the district engineer mayneed at that time to determine what courseof action he should pursue in resolving theviolation; further information may berequested, as needed, in the future.

(4) In situations which would, if aviolation were not involved, qualify foremergency procedures pursuant to 33 CFRPart 325.2(e)(4), the district engineer maydecide it would not be appropriate to directthat the unauthorized work be stopped.Therefore, in such situations, the districtengineer may, at his discretion, allow thework to continue, subject to appropriatelimitations and conditions as he mayprescribe, while the violation is beingresolved in accordance with the procedurescontained in this part.

(5) When an unauthorized activity

requiring a permit has been undertaken byAmerican Indians (including Alaskannatives, Eskimos, and Aleuts. but notincluding Native Hawaiians) onreservation lands or in pursuit of specifictreaty rights, the district engineer shoulduse appropriate means to coordinateproposed directives and orders with theAssistant Chief Counsel for Indian Affairs(DAEN— CCI).

(6) When an unauthorized activityrequiring a permit has been undertaken byan official acting on behalf of a foreigngovernment, the district engineer shoulduse appropriate means to coordinateproposed directives and orders with theOffice, Chief of Engineers, ATTN:DAEN-CCK.

(d) Initial corrective measures. (1) Thedistrict engineer should, in appropriatecases, depending upon the nature of theimpacts associated with the unauthorized,completed work, solicit the views of theEnvironmental Protection Agency; theU.S. Fish and Wildlife Service; theNational Marine Fisheries Service, andother Federal, state, and local agencies tofacilitate his decision on what initialcorrective measures are required. If thedistrict engineer determines as a result ofhis investigation, coordination, andpreliminary evaluation that initialcorrective measures are required, heshould issue an appropriate order to theparties responsible for the violation. Indetermining what initial correctivemeasures are required, the district engineershould consider whether serious jeopardyto life, property, or important publicresources (see 33 CFR Part 320.4) may bereasonably anticipated to occur during theperiod required for the ultimate resolutionof the violation. In his order, the districtengineer will specify the initial correctivemeasures required and the time limits forcompleting this work. In unusual caseswhere initial corrective measuressubstantially eliminate all current andfuture detrimental impacts resulting fromthe unauthorized work, furtherenforcement actions should normally beunnecessary. For all other cases, thedistrict engineer’s order should normallyspecify that compliance with the order willnot foreclose the Government’s options toinitiate appropriate legal action or to laterrequire the submission of a permitapplication.

(2) An order requiring initial correctivemeasures that resolve the violation mayalso be issued by the district engineer insituations where the acceptance orprocessing of an after-the-fact permitapplication is prohibited or considered notappropriate pursuant to § 326.3(e)(1)

(iii)— (iv) below. However, such orderswill be issued only when the districtengineer has reached an independentdetermination that such measures arenecessary and appropriate.

(3) It will not be necessary to issue aCorps permit in connection with initialcorrective measures undertaken at thedirection of the district engineer.

(e) After-the-fact permit applications.(1) Following the completion of anyrequired initial corrective measures, thedistrict engineer will accept an after-the-fact permit application unless hedetermines that one of the exceptions listedin subparagraphs i— iv below is applicable.Applications for after-the-fact permits willbe processed in accordance with theapplicable procedures in 33 CFR Parts320— 325. Situations where no permitapplication will be processed or where theacceptance of a permit application must bedeferred are as follows:

(i) No permit application will beprocessed when restoration of the watersof the United States has been completedthat eliminates current and futuredetrimental impacts to the 8atisfaction ofthe district engineer.

(ii) No permit application will beaccepted in connection with a violationwhere the district engineer determines thatlegal action is appropriate (* 326.5(a))until such legal action has been completed.

(iii) No permit application will beaccepted where a Federal, state, or localauthorization or certification, required byFederal law, has already been denied.

(iv) No permit application will beaccepted nor will the processing of anapplication be continued when the districtengineer is aware of enforcement litigationthat has been initiated by other Federal,state, or local regulatory agencies, unlesshe determines that concurrent processingof an after-the-fact permit application isclearly appropriate.

(2) Upon completion of his review inaccordance with 33 CFR Parts 320— 325,the district engineer will determine if apermit should be issued, with specialconditions if appropriate, or denied. Inreaching a decision to issue, be mustdetermine that the work involved is notcontrary to the public interest, and ifsection 404 is applicable, that the workalso complies with the EnvironmentalProtection Agency’s section 404(b)(1)guidelines. if he determines that a denial iswarranted, his notification of denial shouldprescribe any final corrective


actions required. His notification shouldalso establish a reasonable period of timefor the applicant to complete such actionsunless he determines that furtherinformation is required before thecorrective measures can be specified. Iffurther information is required, the finalcorrective measures may be specified at alater date. If an applicant refuses toundertake prescribed corrective actionsordered subsequent to permit denial orrefuses to accept a conditioned permit, thedistrict engineer may initiate legal actionin accordance with § 326.5.

(f) Combining steps. The proceduralsteps in this section are in the normalsequence. However, these regulations donot prohibit the streamlining of theenforcement process through thecombining of steps.

(g) Coordination with EPA. In all caseswhere the district engineer is aware thatEPA is considering enforcement action, heshould coordinate with EPA to attempt toavoid conflict or duplication. Suchcoordination applies to interim protectivemeasures and after-the-fact permitting, aswell as to appropriate legal enforcementactions.

§ 326.4 Supervision of authorizedactivities.

(a) Inspections. District engineers will,at their discretion, take reasonablemeasures to inspect permitted activities, asrequired, to ensure that these activitiescomply with specified terms andconditions. To supplement inspections bytheir enforcement personnel, districtengineers should encourage their otherpersonnel; members of the public; andinterested state, local, and other Federalagency representatives to report suspectedviolations of Corps permits. To facilitateinspections, district engineers will, inappropriate cases, require that copies ofENG Form 4336 be posted conspicuouslyat the sites of authorized activities and willmake available to all interested personsinformation on the terms and conditions ofissued permits. The U.S. Coast Guard willinspect permitted ocean dumping activitiespursuant to section 107(c) of the MarineProtection, Research and Sanctuaries Actof 1972, as amended.

(b) Inspection limitations. Section 326.4does not establish a non-discretionary dutyto inspect permitted activities for safety,sound engineering practices, orinterference with other permitted orunpermitted structures or uses in the area.Further, the regulations implementing theCorps regulatory program do not establisha non-discretionary duty to inspect

permitted activities for any other purpose.

(c) Inspection expenses. The expensesincurred in connection with the inspectionof permitted activities will normally bepaid by the Federal Government unlessdaily supervision or other unusualexpenses are involved. In such unusualcases, the district engineer may conditionpermits to require permittees to payinspection expenses pursuant to theauthority contained in Section 9701 of PubL. 97— 258 (33 U.S.C. 9701). Thecollection and disposition of inspectionexpense funds obtained from applicantswill be administered in accordance withthe relevant Corps regulations governingsuch funds.

(d) Non-compliance. If a districtengineer determines that a permittee hasviolated the terms or conditions of thepermit and that the violation is sufficientlyserious to require an enforcement action,then he should, unless at his discretion hedeems it inappropriate: (1) First contact thepermittee; (2) request corrected plansreflecting actual work, if needed; and (3)attempt to resolve the violation. Resolutionof the violation may take the form of thepermitted project being voluntarily broughtinto compliance or of a permitmodification (33 CFR 325.7(b)). If amutually agreeable solution cannot bereached, a written order requiringcompliance should normally be issued anddelivered by personal service. Issuance ofan order is not, however, a prerequisite tolegal action. If an order is issued, it willspecify a time period of not more than 30days for bringing the permitted project intocompliance, and a copy will be sent to theappropriate state official pursuant tosection 404(s)(2) of the Clean Water Act.If the permittee fails to comply with theorder within the specified period of time,the district engineer may consider usingthe suspension/revocation procedures in 33CFR 325.7(c) and/or he may recommendlegal action in accordance with § 326.5.

§ 326.5 Legal action.

(a) General. For cases the districtengineer determines to be appropriate, hewill recommend criminal or civil actions toobtain penalties for violations, compliancewith the orders and directives he hasissued pursuant to § § 326.3 and 326.4, orother relief as appropriate. Appropriatecases for criminal or civil action include,but are not limited to, violations which, inthe district engineer’s opinion, are willful,repeated, flagrant, or of substantial impact.

(b) Preparation of case. If the districtengineer determines that legal action isappropriate, he will prepare a litigationreport or such other documentation that he

and the local U.S. Attorney have mutuallyagreed to, which contains an analysis ofthe information obtained during hisinvestigation of the violation or during theprocessing of a permit application and arecommendation of appropriate legalaction. The litigation report or alternativedocumentation will also recommend what,if any, restoration or mitigative measuresare required and will provide the rationalefor any such recommendation.

(c) Referral to the local U.S. Attorney.Except as provided in paragraph (d) of thissection, district engineers are authorized torefer cases directly to the U.S. Attorney.Because of the unique legal system in theTrust Territories, all cases over which theDepartment of Justice has no authority willbe referred to the Attorney General for thetrust Territories. Information copies of allletters of referral shall be forwarded to theappropriate division counsel, the Office,Chief of Engineers, ATTN: DAEN— CCK,the Office of the Assistant Secretary of theArmy (Civil Works), and the Chief of theEnvironmental Defense Section, Landsand Natural Resources Division, U.S.Department of Justice.

(d) Referral to the Office, Chief ofEngineers. District engineers will forwardlitigation reports with recommendationsthrough division offices to the Office,Chief of Engineers, ATTN: DAEN— CCK,for all cases that qualify under thefollowing criteria:

(1) Significant precedential orcontroversial questions of law or fact;

(2) Requests for elevation to theWashington level by the Department ofJustice;

(3) Violations of section 9 of the Riversand Harbors Act of 1899;

(4) Violations of section 103 the MarineProtection, Research and Sanctuaries Actof 1972;

(5) All cases involving violations byAmerican Indians (original of litigationreport to DAEN— CCI with copy toDAEN— CCK) on reservation lands or inpursuit of specific treaty rights;

(6) All cases involving violations byofficials acting on behalf of foreigngovernments; and

(7) Cases requiring action pursuant toparagraph (e) of this section.

(e) Legal option not available, In caseswhere the local U.S. Attorney declines totake legal action, it would be appropriatefor the district engineer to close theenforcement case record unless he believesthat the case warrants special attention. Inthat situation, he is encouraged to forwarda litigation report to the Office, Chief ofEngineers, ATTN: DAEN— CCK. for


direct coordination through the Office ofthe Assistant Secretary of the Army (CivilWorks) with the Department of Justice.Further, the case record should not beclosed if the district engineer anticipatesthat further administrative enforcementactions, taken in accordance with theprocedures prescribed in this part, willidentify remedial measures which, if notcomplied with by the parties responsiblefor the violation, will result in appropriatelegal action at a later date,

PART 327— PUBLIC HEARINGSSec.327.1 Purpose.327.2 Applicability.327.3 Definitions.327.4 General policies.327.5 Presiding officer.327.6 Legal adviser.327.7 Representation.327.8 Conduct of hearings.327.9 Filing of transcript of the public

hearing.327.10 Authority of the presiding officer.327.11 Public notice.

Authority: 33 U.S.C. 1344: 33 U.S.C.1413.

§ 327.1 Purpose.This regulation prescribes the policy.

practice and procedures to be followed bythe U.S. Army Corps of Engineers in theconduct of public hearings conducted inthe evaluation of a proposed DA permitaction or Federal project as defined in §327.3 of this Part including those heldpursuant to section 404 of the Clean WaterAct (33 U.S.C. 1344) and section 103 ofthe Marine Protection, Research andSanctuaries Act (MPRSA), as amended(33 U.S.C. 1413).

§ 327.2 Applicability.This regulation is applicable to all

divisions and districts responsible for theconduct of public hearings.

§ 327.3 Definitions.(a) Public hearing means a public

proceeding conducted for the purpose ofacquiring information or evidence whichwill be considered in evaluating aproposed DA permit action, or Federalproject. and which affords the public anopportunity to present their views,opinions, and information on such permitactions or Federal projects.

(b) Permit action, as used herein meansthe evaluation of and decision on anapplication for a DA permit pursuant tosections 9 or 10 of the Rivers and HarborsAct of 1899, section 404 of the CleanWater Act, or section 103 of the MPRSA,as amended, or the modification,suspension or revocation of any DA permit(see 33 CFR 325.7).

(c) Federal project means a Corps ofEngineers project (work or activity of anynature for any purpose which is to beperformed by the Chief of Engineerspursuant to Congressional authorizations)involving the discharge of dredged or fillmaterial into waters of the United States orthe transportation of dredged material forthe purpose of dumping it in ocean waterssubject to section 404 of the Clean WaterAct, or section 103 of the MPRSA.

§ 327.4 General polices.

(a) A public hearing will be held inconnection with the consideration of a DApermit application or a Federal projectwhenever a public hearing is needed formaking a decision on such permitapplication or Federal project. In addition,a public hearing may be held when it isproposed to modify or revoke a permit.(See 33 CFR 325.7).

(b) Unless the public notice specifiesthat a public hearing will be held, anyperson may request, in writing, within thecomment period specified in the publicnotice on a DA permit application or on aFederal project, that a public hearing beheld to consider the material matters atissue in the permit application or withrespect to Federal project. Upon receipt ofany such request, stating with particularitythe reasons for holding a public hearing,the district engineer may expeditiouslyattempt to resolve the issues informally.Otherwise, he shall promptly set a timeand place for the public hearing, and givedue notice thereof, as prescribed in §327.11 of this Part. Requests for a publichearing under this paragraph shall begranted, unless the district engineerdetermines that the issues raised areinsubstantial or there is otherwise no validinterest to be served by a hearing. Thedistrict engineer will make such adetermination in writing. and communicatehis reasons therefor to all requestingparties. Comments received as form lettersor petitions may be acknowledged as agroup to the person or organizationresponsible for the form letter or petition.

(c) In case of doubt, a public hearingshall be held. HQDA has the discretionarypower to require hearings in any case.

(d) in fixing the time and place for ahearing, the convenience and necessity ofthe interested public will be dulyconsidered.

§ 327.5 Presiding officer.(a) The district engineer, in whose

district a matter arises, shall normallyserve as the presiding officer. When thedistrict engineer is unable to serve, he maydesignate the deputy district engineer or

other qualified person as presiding officer.In cases of unusual interest, the Chief ofEngineers or the division engineer mayappoint such person as he deemsappropriate to serve as the presidingofficer.

(b) The presiding officer shall include inthe administrative record of the permitaction the request or requests for thehearing and any data or material submittedin justification thereof, materials submittedin opposition to or in support of theproposed action, the hearing transcript, andsuch other material as may be relevant orpertinent to the subject matter of thehearing. The administrative record shall beavailable for public inspection with theexception of material exempt fromdisclosure under the Freedom ofInformation Act.

§ 327.6 Legal adviser.At each public hearing, the district

counsel or his designee may serve as legaladvisor to the presiding officer. Inappropriate circumstances, the districtengineer may waive the requirement for alegal advisor to be present.

§ 327.7 Representation.At the public hearing, any person may

appear on his own behalf, or may berepresented by counsel, or by otherrepresentatives.

§ 327.8 Conduct of hearings.

(a) The presiding officer shall make anopening statement outlining the purpose ofthe hearing and prescribing the generalprocedures to be followed.

(b) Hearings shall be conducted by thepresiding officer in an orderly butexpeditious manner. Any person shall bepermitted to submit oral or writtenstatements concerning the subject matterof the hearing, to call witnesses who maypresent oral or written statements, and topresent recommendations as to anappropriate decision, Any person maypresent written statements for the hearingrecord prior to the time the hearing recordis closed to public submissions, and maypresent proposed findings andrecommendations. The presiding officershall afford participants a reasonableopportunity for rebuttal.

(c) The presiding officer shall havediscretion to establish reasonable limitsupon the time allowed for statements ofwitnesses, for arguments of parties or theircounsel or representatives, and upon thenumber of rebuttals.

(d) Cross-examination of witnesses shallnot be permitted.

(e) All public hearings shall be reportedverbatim. Copies of the transcripts ofproceedings may be


purchased by any person from the Corps ofEngineers or the reporter of such hearing.A copy will be available for publicinspection at the office of the appropriatedistrict engineer.

(f) All written statements, charts,tabulations, and similar data offered inevidence at the hearing shall, subject toexclusion by the presiding officer forreasons of redundancy, be received inevidence and shall constitute a part of therecord.

(g) The presiding officer shall allow aperiod of not less than 10 days after theclose of the public hearing for submissionof written comments.

(h) In appropriate cases, the districtengineer may participate in joint publichearings with other Federal or stateagencies, provided the procedures of thosehearings meet the requirements of thisregulation. In those cases in which theother Federal or state agency allows across-examination in its public hearing, thedistrict engineer may still participate in thejoint public hearing but shall not requirecross examination as a part of hisparticipation.

§ 327.9 Filing of the transcript of thepublic hearing.

Where the presiding officer is the initialaction authority, the transcript of thepublic hearing, together with all evidenceintroduced at the public hearing, shall bemade a part of the administrative record ofthe permit action or Federal project. Theinitial action authority shall fully considerthe matters discussed at the public hearingin arriving at his initial decision orrecommendation and shall address, in hisdecision or recommendation, allsubstantial and valid issues presented atthe hearing. Where a person other than theinitial action authority serves as presidingofficer, such person shall forward thetranscript of the public hearing and allevidence received in connection therewithto the initial action authority together witha report summarizing the issues covered atthe hearing. The report of the presidingofficer and the transcript of the publichearing and evidence submitted therealshall in such cases be fully considered bythe initial action authority in making hisdecision or recommendation to higherauthority as to such permit action orFederal project.

§ 327.10 Authority of the presidingofficer.Presiding officers shall have thefollowing authority:

(a) To regulate the course of the hearingincluding the order of all sessions and thescheduling thereof. after any initial

session, and therecessing, reconvening, and adjournmentthereof; and

(b) To take any other action necessaryor appropriate to the discharge of theduties vested in them, consistent with thestatutory or other authority under whichthe Chief of Engineers functions, and withthe policies and directives of the Chief ofEngineers and the Secretary of the Army.

§ 327.11 Public notice.

(a) Public notice shall be given of anypublic hearing to be held pursuant to thisregulation, Such notice should normallyprovide for a period of not less than 30days following the date of public noticeduring which time interested parties mayprepare themselves for the hearing. Noticeshall also be given to all Federal agenciesaffected by the proposed action, and tostate and local agencies and other partieshaving an interest in the subject matter ofthe hearing. Notice shall be sent to allpersons requesting a hearing and shall beposted in appropriate governmentbuildings and provided to newspapers ofgeneral circulation for publication.Comments received as form letters orpetitions may be acknowledged as a groupto the person or organization responsiblefor the form letter or petition.

(b) The notice shall contain time, place,and nature of hearing; the legal authorityand jurisdiction under which the hearing isheld; and location of and availability of thedraft environmental impact statement orenvironmental assessment.

PART 328— DEFINITION OFWATERS OF THE UNITED STATES

Sec.328.1 Purpose.328.2 General scope.328.3 Definitions.328.4 Limits of jurisdiction.328.5 Changes in limits of waters of the

United States.Authority: 33 U.S.C. 1344.

§ 328.1 Purpose.

This section defines the term “waters ofthe United States” as it applies to thejurisdictional limits of the authority of theCorps of Engineers under the Clean WaterAct. It prescribes the policy, practice, andprocedures to be used in determining theextent of jurisdiction of the Corps ofEngineers concerning “waters of theUnited States,” The terminology used bysection 404 of the Clean Water Actincludes “navigable waters” which isdefined at section 502(7) of the Act as“waters of the United States including theterritorial seas,” To provide clarity and to

avoidconfusion with other Corps of Engineerregulatory programs, the term “waters ofthe United States” is used throughout 33CFR Parts 320— 330. This section doesnot apply to authorities under the Riversand Harbors Act of 1899 except that someof the same waters may be regulated underboth statutes (see 33 CFR Parts 322 and329).

§ 328.2 General scope.

Waters of the United States includethose waters listed in § 328.3(a). Thelateral limits of jurisdiction in those watersmay be divided into three categories. Thecategories include the territorial seas, tidalwaters, and non-tidal waters (see 33 CFR328.4 (a), (b), and (c), respectively).


For the purpose of this regulation theseterms are defined as follows:

(a) The term “waters of the UnitedStates” means

(1) All waters which are currently used,or were used in the past, or may besusceptible to use in interstate or foreigncommerce, including all waters which aresubject to the ebb and flow of the tide;

(2) All interstate waters includinginterstate wetlands;

(3) All other waters such as intrastatelakes, rivers, streams (includingintermittent streams), mudflats, sandflats,wetlands, sloughs, prairie potholes, wetmeadows, playa lakes, or natural ponds,the use, degradation or destruction ofwhich could affect interstate or foreigncommerce including any such waters:

(i) Which are or could be used byinterstate or foreign travelers forrecreational or other purposes; or

(ii) From which fish or shellfish are orcould be taken and sold in interstate orforeign commerce; or

(iii) Which are used or could be used forindustrial purpose by industries ininterstate commerce;

(4) All impoundments of watersotherwise defined as waters of the UnitedStates under the definition;

(5) Tributaries of waters identified inparagraphs (a) (1)— (4) of this section:

(6) The territorial seas;(7) Wetlands adjacent to waters (other

than waters that are themselves wetlands)identified in paragraphs (a) (1)— (6) of thissection.Waste treatment systems, includingtreatment ponds or lagoons designed tomeet the requirements of CWA (other thancooling ponds as defined in 40 CFR123.11(m) which also meet the criteria ofthis definition) are not waters of the UnitedStates.


(b) The term “wetlands” means thoseareas that are inundated or saturated bysurface or ground water at a frequency andduration sufficient to support, and thatunder normal circumstances do support. aprevalence of vegetation typically adaptedfor life in saturated soil conditions.Wetlands generally include swamps,marshes, bogs, and similar areas.

(c) The term “adjacent” meansbordering, contiguous, or neighboring.Wetlands separated from other waters ofthe United States by man-made dikes orbarriers, natural river bergs, beach dunesand the like are “adjacent wetlands."

(d) The term “high tide line" means theline of intersection of the land with thewater’s surface at the maximum heightreached by a rising tide. The high tide linemay be determined, in the absence ofactual data, by a line of oil or scum alongshore objects, a more or less continuousdeposit of fine shell or debris on theforeshore or berm, other physical markingsor characteristics, vegetation lines, tidalgages, or other suitable means thatdelineate the general height reached by arising tide. The line encompasses springhigh tides and other high tides that occurwith periodic frequency but does notinclude storm surges in which there is adeparture from the normal or predictedreach of the tide due to the piling up ofwater against a coast by strong winds suchas those accompanying a hurricane orother intense storm.

(e) The term “ordinary high water mark”means that line on the shore established bythe fluctuations of water and indicated byphysical characteristics such as clear,natural line impressed on the bank,shelving. changes in the character of soil,destruction of terrestrial vegetation, thepresence of litter and debris, or otherappropriate means that consider thecharacteristics of the surrounding areas.

(f) The term “tidal waters” means thosewaters that rise and fall in a predictableand measurable rhythm or cycle due to thegravitational pulls of the moon and sun.Tidal waters end where the rise and fall ofthe water surface can no longer bepractically measured in a predictablerhythm due to masking by hydrologic,wind, or other effects.

§ 328.4 Limits of jurisdiction.

(a) Territorial Seas. The limit ofjurisdiction in the territorial seas ismeasured from the baseline in a seawarddirection a distance of three nautical miles.(See 33 CFR 329.12)

(b) Tidal Waters of the United States.The landward limits of jurisdiction in tidalwaters:

(1) Extends to the high tide line, or(2) When adjacent non-tidal waters of

the United States are present, thejurisdiction extends to the limits identifiedin paragraph (c) of this section.

(c) Non-Tidal Waters of the UnitedStates. The limits of jurisdiction in non-tidal waters:

(1) In the absence of adjacent wetlands,the jurisdiction extends to the ordinaryhigh water mark, or

(2) When adjacent wetlands are present.the jurisdiction extends beyond theordinary high water mark to the limit ofthe adjacent wetlands.

(3) When the water of the United Statesconsists only of wetlands the jurisdictionextends to the limit of the wetland.

§ 328.5 Changes in limits of waters ofthe United States.

Permanent changes of the shorelineconfiguration result in similar alterationsof the boundaries of waters of the UnitedStates. Gradual changes which are due tonatural causes and are perceptible onlyover some period of time constitutechanges in the bed of a waterway whichalso change the boundaries of the waters ofthe United States. For example, changingsea levels or subsidence of land may causesome areas to become waters of the UnitedStates while siltation or a change indrainage may remove an area from watersof the United States. Man-made changesmay affect the limits of waters of theUnited States; however, permanentchanges should not be presumed until theparticular circumstances have beenexamined and verified by the districtengineer. Verification of changes to thelateral limits of jurisdiction may beobtained from the district engineer.

PART 329— DEFINITION OFNAVIGABLE WATERS OF THEUNITED STATES

Sec.329.1 Purpose.329.2 Applicability.329.3 General policies.329.4 General definitions.329.5 General scope of determination.329.6 Interstate or foreign commerce.329.7 Intrastate or interstate nature of

waterway.329.8 Improved or natural conditions of

the waterbody.329.9 Time at which commerce exists or

determination is made.329.10 Existence of obstructions.

Sec.329.11 Geographic and jurisdictional

limits of rivers and lakes.329.12 Geographic and jurisdictional

limits of oceanic and tidal waters.329.13 Geographic limits: shifting

boundaries.329.14 Determination of navigability.329.15 Inquiries regarding determinations.329.16 Use and maintenance of lists of

determinations.Authority: 33 U.S.C. 401 of seq.

§ 329.1 Purpose.

This regulation defines the term“navigable waters of the United States” asit is used to define authorities of the Corpsof Engineers. It also prescribes the policy,practice and procedure to be used indetermining the extent of the jurisdictionof the Corps of Engineers and inanswering inquiries concerning “navigablewaters of the United States.” Thisdefinition does not apply to authoritiesunder the Clean Water Act whichdefinitions are described under 33 CFRParts 323 and 328.

§ 329.2 Applicability.This regulation is applicable to all Corps

of Engineers districts and divisions havingcivil works responsibilities.

§ 329.3 General policies.Precise definitions of “navigable waters

of the United States” or “navigability” areultimately dependent on judicialinterpretation and cannot be madeconclusively by administrative agencies.However, the policies and criteriacontained in this regulation are in closeconformance with the tests used by Federalcourts and determinations made under thisregulation are considered binding in regardto the activities of the Corps of Engineers.

§ 329.4 General definition.Navigable waters of the United States

are those waters that are subject to the ebband flow of the tide and/or are presentlyused, or have been used in the past, or maybe susceptible for use to transportinterstate or foreign commerce. Adetermination ofnavigability, once made, applies laterallyover the entire surface of the waterbody,and is not extinguished by later actions orevents which impede or destroy navigablecapacity.

§ 329.5 General scope of determination.The several factors which must be

examined when making a determinationwhether a waterbody is a navigable waterof the United States are discussed in detailbelow. Generally, the following conditionsmust be satisfied:


(a) Past, present, or potential presence ofinterstate or foreign commerce:

(b) Physical capabilities for use bycommerce as in paragraph (a) of thissection; and

(c) Defined geographic limits of thewaterbody.

§ 329.6 Interstate or foreign commerce.

(a) Nature of commerce: type. means,and extent of use. The types of commercialuse of a waterway are extremely variedand will depend on the character of theregion, its products, and the difficulties ordangers of navigation. It is thewaterbody’s capability of use by the publicfor purposes of transportation ofcommerce which is the determinativefactor, and not the time, extent or mannerof that use. As discussed in § 329.9 of thisPart, it is sufficient to establish thepotential for commercial use at any past,present, or future time. Thus, sufficientcommerce may be shown by historical useof canoes, bateaux, or other frontier craft,as long as that type of boat was commonor well-suited to the place and period.Similarly, the particular items ofcommerce may vary widely, dependingagain on the region and period. The goodsinvolved might be grain, furs, or othercommerce of the time. Logs are a commonexample; transportation of logs has been asubstantial and well recognizedcommercial use of many navigable watersof the United States. Note, however, thatthe mere presence of floating logs will notof itself make the river “navigable”; thelogs must have been related to acommercial venture. Similarly, thepresence of recreational craft may indicatethat a waterbody is capable of bearingsome forms of commerce, either presently,in the future, or at a past point in time.

(b) Nature of commerce: interstate andintrastate. Interstate commerce may ofcourse be existent on an intrastate voyagewhich occurs only between places withinthe same state. It is only necessary thatgoods may be brought from, or eventuallybe destined to go to, another state. (Forpurposes of this regulation, the term“interstate commerce” hereinafter includes“foreign commerce” as well.)

§ 329.7 intrastate or interstate nature ofwaterway.

A waterbody may be entirely within astate, yet still be capable of carryinginterstate commerce. This is especiallyclear when it physically connects with agenerally acknowledged avenue ofinterstate commerce, such as the ocean orone of the Great Lakes, and is yet whollywithin one state. Nor is it necessary that

there be a physicallynavigable connection across a stateboundary. Where a waterbody extendsthrough one or more states, but substantialportions, which are capable of bearinginterstate commerce, are located in onlyone of the states, the entirety of thewaterway up to the head (upper limit) ofnavigation is subject to Federaljurisdiction,

§ 329.8 improved or natural conditionsof the waterbody.

Determinations are not limited to thenatural or original condition of thewaterbody. Navigability may also be foundwhere artificial aids have been or may beused to make the waterbody suitable foruse in navigation.

(a) Existing improvements: artificialwaterbodies. (1) An artificial channel mayoften constitute a navigable water of theUnited States, even though it has beenprivately developed and maintained, orpasses through private property. The test isgenerally as developed above, that is,whether the waterbody is capable of use totransport interstate commerce. Canalswhich connect two navigable waters of theUnited States and which are used forcommerce clearly fall within the test, andthemselves become navigable. A canalopen to navigable waters of the UnitedStates on only one end is itself navigablewhere it in fact supports interstatecommerce. A canal or other artificialwaterbody that is subject to ebb and flowof the tide is also a navigable water of theUnited States.

(2) The artificial waterbody may be amajor portion of a river or harbor area ormerely a minor backwash, slip, or turningarea (see paragraph 329.12(b) of this Part).

(3) Private ownership of the landsunderlying the waterbody, or of the landsthrough which it runs, does not preclude afinding of navigability. Ownership doesbecome a controlling factor if a privatelyconstructed and operated canal is not usedto transport interstate commerce nor usedby the public; it is then not considered tobe a navigable water of the United States.However, a private waterbody, eventhough not itself navigable, may so affectthe navigable capacity of nearby waters asto nevertheless be subject to certainregulatory authorities.

(b) Non-existing improvements, past orpotential. A waterbody may also beconsidered navigable depending on thefeasibility of use to transport interstatecommerce after the construction ofwhatever “reasonable” improvements maypotentially be made. The improvementneed not exist, be planned, nor even

authorized: it is enough that potentiallythey could be made. What is a“reasonable” improvement is always amatter of degree; there must be a balancebetween cost and need at a time when theimprovement would be (or would havebeen) useful. Thus, if an improvementwere “reasonable” at a time of past use, thewater was therefore navigable in law fromthat time forward. The changes inengineering practices or the coming of newindustries with varying classes of freightmay affect the type of the improvement:those which may be entirely reasonable ina thickly populated, highly developedindustrial region may have been entirelytoo costly for the same region in the daysof the pioneers. The determination ofreasonable improvement is often similar tothe cost analyses presently made in Corpsof Engineers studies.

§ 329.9 Time at which commerce existsor determination is made.

(a) Past use. A waterbody which wasnavigable in its natural or improved state,or which was susceptible of reasonableimprovement (as discussed in paragraph329.8(b) of this Part) retains its characteras “navigable in law” even though it is notpresently used for commerce, or ispresently incapable of such use because ofchanged conditions or the presence ofobstructions. Nor does absence of usebecause of changed economic conditionsaffect the legal character of the waterbody.Once having attained the character of“navigable in law,” the Federal authorityremains in existence, and cannot beabandoned by administrative officers orcourt action. Nor is mere inattention orambiguous action by Congress anabandonment of Federal control. However,express statutory declarations by Congressthat described portions of a waterbody arenon-navigable, or have been abandoned,are binding upon the Department of theArmy. Each statute must be carefullyexamined, since Congress often reservesthe power to amend the Act, or assignsspecial duties of supervision and control tothe Secretary of the Army or Chief ofEngineers.

(b) Future or potential use. Navigabilitymay also be found in a waterbody’ssusceptibility for use in its ordinarycondition or by reasonable improvement totransport interstate commerce. This may beeither in its natural or improved condition,and may thus be existent although therehas been no actual use to date. Non-use inthe past therefore does not preventrecognition of the potential for future use.


§ 329.10 Existence of obstructions.

A stream may be navigable despite theexistence of falls, rapids, sand bars.bridges, portages, shifting currents, orsimilar obstructions. Thus, a waterway inits original condition might have hadsubstantial obstructions which wereovercome by frontier boats and/orportages, and nevertheless be a “‘channel”of commerce, even though boats had to beremoved from the water in some stretches,or logs be brought around an obstructionby means of artificial chutes. However, thequestion is ultimately a matter of degree,and it must be recognized that there issome point beyond which navigabilitycould not be established,

§ 329.11 Geographic and jurisdictionallimits of rivers and lakes.

(a) Jurisdiction over entire bed. Federalregulatory jurisdiction, and powers ofimprovement for navigation, extendlaterally to the entire water surface and bedof a navigable waterbody, which includesall the land and waters below the ordinaryhigh water mark. Jurisdiction thus extendsto the edge (as determined above) of allsuch waterbodies. even though portions ofthe waterbody may be extremely shallow,or obstructed by shoals, vegetation or otherbarriers. Marshlands and similar areas arethus considered navigable in law, but onlyso far as the area is subject to inundationby the ordinary high waters.

(1) The “ordinary high water mark” onnon-tidal rivers is the line on the shoreestablished by the fluctuations of waterand indicated by physical characteristicssuch as a clear, natural line impressed onthe bank; shelving; changes in thecharacter of soil; destruction of terrestrialvegetation; the presence of litter anddebris; or other appropriate means thatconsider the characteristics of thesurrounding areas.

(2) Ownership of a river or lake bed orof the lands between high and low watermarks will vary according to state law;however, private ownership of theunderlying lands has no bearing on theexistence or extent of the dominant Federaljurisdiction over a navigable waterbody.

(b) Upper limit of navigability. Thecharacter of a river will, at some pointalong its length, change from navigable tonon navigable. Very often that point willbe at a major fall or rapids, or other placewhere there is a marked decrease in thenavigable capacity of the river. The upperlimit will therefore often be the same pointtraditionally recognized as the head ofnavigation, but may, under some of thetests described above. be at some point yetfarther upstream.

§ 329.12 Geographic and jurisdictionallimits of oceanic and tidal waters.

(a) Ocean and coastal waters. Thenavigable waters of the United States overwhich Corps of Engineers regulatoryjurisdiction extends include all ocean andcoastal waters within a zone threegeographic (nautical) miles seaward fromthe baseline (The Territorial Seas). Widerzones are recognized for special regulatorypowers exercised over the outercontinental shelf. (See 33 CFR 322.3(b)).

(1) Baseline defined, Generally, wherethe shore directly contacts the open sea,the line on the shore reached by theordinary low tides comprises the baselinefrom which the distance of threegeographic miles is measured. Thebaseline has significance for both domesticand international law and is subject toprecise definitions. Special problems arisewhen offshore rocks, islands, or otherbodies exist, and the baseline may have tobe drawn seaward of such bodies.

(2) Shoreward limit of jurisdiction.Regulatory jurisdiction in coastal areasextends to the line on the shore reached bythe plane of the mean (average) highwater. Where precise determination of theactual location of the line becomesnecessary, it must be established by surveywith reference to the available tidal datum,preferably averaged over a period of 18.6years. Less precise methods, such asobservation of the “apparent shoreline”which is determined by reference tophysical markings, lines of vegetation, orchanges in type of vegetation, may be usedonly where an estimate is needed of theline reached by the mean high water.

(b) Bays and estuaries, Regulatoryjurisdiction extends to the entire surfaceand bed of all waterbodies subject to tidalaction. Jurisdiction thus extends to theedge (as determined by paragraph (a)(2) ofthis section) of all such waterbodies, eventhough portions of the waterbody may beextremely shallow, or obstructed byshoals, vegetation, or other barriers.Marshlands and similar areas are thusconsidered “navigable in law,” but only sofar as the area is subject to inundation bythe mean high waters. The relevant test istherefore the presence of the mean hightidal waters, and not the general testdescribed above, which generally appliesto inland rivers and lakes.

§ 329.13 Geographic Limits: shiftingboundaries.

Permanent changes of the shorelineconfiguration result in similar alterationsof the boundaries of the navigable waters

of the United States.Thus, gradual changes which are due tonatural causes and are perceptible onlyover some period of time constitutechanges in the bed of a waterbody whichalso change the shoreline boundaries of thenavigable waters of the United States.However, an area will remain “navigablein law,” even though no longer coveredwith water, whenever the change hasoccurred suddenly, or was caused byartificial forces intended to produce thatchange. For example, shifting sand barswithin a river or estuary remain part of thenavigable water of the United States,regardless that they may be dry at aparticular point in time.

§ 329.14 Determination of navigability.

(a) Effect on determinations. Althoughconclusive determinations of navigabilitycan be made only by federal Courts, thosemade by federal agencies are neverthelessaccorded substantial weight by the courts.It is therefore necessary that whenjurisdictional questions arise, districtpersonnel carefully investigate thosewaters which may be subject to Federalregulatory jurisdiction under guidelines setout above, as the resulting determinationmay have substantial impact upon ajudicial body. Official determinations byan agency made in the past can be revisedor reversed as necessary to reflect changedrules or interpretations of the law.

(b) Procedures of determination. Adetermination whether a waterbody is anavigable water of the United States willbe made by the division engineer, and willbe based on a report of findings preparedat the district level in accordance with thecriteria set out in this regulation. Eachreport of findings will be prepared by thedistrict engineer, accompanied by anopinion of the district counsel, andforwarded to the division engineer for finaldetermination. Each report of findings willbe based substantially on applicableportions of the format in paragraph (c) ofthis section.

(c) Suggested format of report offindings:

(1) Name of waterbody:(2) Tributary to:(3) Physical characteristics:(i) Type: (river, bay, slough, estuary,

etc.)(ii) Length:(iii) Approximate discharge volumes:

Maximum, Minimum, Mean:(iv) Fall per mile:(v) Extent of tidal influence:(vi) Range between ordinary high and

ordinary low water:


(vii) Description of improvements tonavigation not listed in paragraph (c)(5) ofthis section:

(4) Nature and location of significantobstructions to navigation in portions ofthe waterbody used or potentially capableof use in interstate commerce:

(5) Authorized projects:(i) Nature, condition and location of any

improvements made under projectsauthorized by Congress:

(ii) Description of projects authorizedbut not constructed:

(iii) List of known survey documents orreports describing the waterbody:

(6) Past or present interstate commerce:(i) General types, extent, and period in

time:(ii) Documentation if necessary:(7) Potential use for interstate

commerce, if applicable:(i) If in natural condition:(ii) If improved:(8) Nature of jurisdiction known to have

been exercised by Federal agencies if any:(9) State or Federal court decisions

relating to navigability of the waterbody, ifany:

(10) Remarks:(11) Finding of navigability (with date)

and recommendation for determination:

§ 329.15 Inquiries regardingdeterminations.

(a) Findings and determinations shouldbe made whenever a question arisesregarding the navigability of a waterbody.Where no determination has been made, areport of findings will be prepared andforwarded to the division engineer, asdescribed above. Inquiries may beanswered by an interim reply whichindicates that a final agency determinationmust be made by the division engineer. If aneed develops for an emergencydetermination, district engineers may act inreliance on a finding prepared as inSection 329.14 of this Part. The report offindings should then be forwarded to thedivision engineer on an expedited basis.

(b) Where determinations have beenmade by the division engineer, inquiriesregarding the navigability of specificportions of waterbodies covered by thesedeterminations may be answered asfollows:

This Department, in the administrationof the laws enacted by Congress for theprotection and preservation of thenavigable waters of the United States, hasdetermined that______ (River) (Bay) (Lake, etc.) is anavigable water of the United States fromto _____. Actions which modify orotherwise affect those waters are subject tothe jurisdiction of this

Department, whether such actions occurwithin or outside the navigable areas.

(c) Specific inquiries regarding thejurisdiction of the Corps of Engineers canbe answered only after a determinationwhether (1) the waters are navigablewaters of the United States or (2) if notnavigable, whether the proposed type ofactivity may nevertheless so affect thenavigable waters of the United States thatthe assertion of regulatory jurisdiction isdeemed necessary.

§ 329.16 Use and maintenance of lists ofdeterminations.

(a) Tabulated lists of finaldeterminations of navigability are to bemaintained in each district office, and beupdated as necessitated by court decisions,jurisdictional inquiries, or other changedconditions.

(b) It should be noted that the listsrepresent only those waterbodies for whichdeterminations have been made: absencefrom that list should not be taken as anindication that the waterbody is notnavigable.

(c) Deletions from the list are notauthorized. If a change in status of awaterbody from navigable to non-.navigable is deemed necessary, an updatedfinding should be forwarded to the divisionengineer: changes are not considered finaluntil a determination has been made by thedivision engineer.

PART 330— NATIONWIDE PERMITS

Sec.330.1 General.330.2 Definitions.330.3 Activities occurring before certain

dates.330.4 Public notice.330.5 Nationwide permits.330.6 Management practices.330.7 Notification procedures.330.8 Discretionary Authority.330.9 State water quality certification.330.10 Coastal Zone Management

consistency determination.330.11 Nationwide permit verification.330.12 Expiration of nationwide permits.

Authority: 33 U.S.C. 401 et seq.: 33U.S.C. 1344: 33 U.S.C. 1413.

§ 330.1 General.

The purpose of this regulation is todescribe the Department of the Army’s(DA) nationwide permit program and tolist all current nationwide permits whichhave been issued by publication herein. Anationwide permit is a form of generalpermit which may authorize activitiesthroughout the nation. (Another type ofgeneral permit is a “regional permit” and is

issued by division or district engineers ona regional basis in accordance with 33CFR Part 325). Copies of regionalconditions and modifications, if any, to thenationwide permits can be obtained fromthe appropriate district engineer.Nationwide permits are designed to allowcertain activities to occur with little, if any,delay or paperwork. Nationwide permitsare valid only if the conditions applicableto the nationwide permits are met. Failureto comply with a condition does notnecessarily mean the activity cannot beauthorized but rather that the activity canonly be authorized by an individual orregional permit. Several of the nationwidepermits require notification to the districtengineer prior to commencement of theauthorized activity. The procedures for thisnotification are located at § 330.7 of thisPart. Nationwide permits can be issued tosatisfy the requirements of section 10 ofthe Rivers and Harbors Act of 1899,section 404 of the Clean Water Act. and/orsection 103 of the Marine Protection,Research and Sanctuaries Act. Theapplicable authority is indicated at the endof each nationwide permit.


(a) The definitions of 33 CFR Parts321— 329 are applicable to the terms usedin this Part.

(b) The term “headwaters” means thepoint on a non-tidal stream above whichthe average annual flow is less than fivecubic feet per second. The district engineermay estimate this point from available databy using the mean annual areaprecipitation, area drainage basin maps,and the average runoff coefficient, or bysimilar means. For streams that are dry forlong periods of the year, district engineersmay establish the “headwaters” as thatpoint on the stream where a flow of fivecubic feet per second is equaled orexceeded 50 percent of the time.

(c) Discretionary authority means theauthority delegated to division engineers in§ 330.8 of this part to override provisionsof nationwide permits, to add regionalconditions, or to require individual permitapplication.

§ 330.3 Activities occurring beforecertain dates.

The following activities were permittedby nationwide permits issued on July 19,1977, and unless modified do not requirefurther permitting:

(a) Discharges of dredged or fillmaterial into waters of the United Statesoutside the limits of navigable waters ofthe United States that occurred before thephase-in dates which began. July 25, 1975,and extended section 404 jurisdiction to allwaters of the United


States. (These phase-in dates are: AfterJuly 25. 1975, discharges .into navigablewaters of the United States and adjacentwetlands; after September 1. 1976,discharges into navigable waters of theUnited States and their primary tributaries,including adjacent wetlands, and intonatural lakes, greater than 5 acres insurface area: and after July 1, 1977,discharges into all waters of the UnitedStates.) (Section 404)

(b) Structures or work completed beforeDecember 18, 1968, or in waterbodies overwhich the district engineer had not assertedjurisdiction at the time the activityoccurred provided, in both instances, thereis no interference with navigation. (Section10)

§ 330.4 Public notice.(a) Chief of Engineers. Upon proposed

issuance of new nationwide permits,modification to, or reissuance of, existingnationwide permits, the Chief of Engineerswill publish a notice in the FederalRegister seeking public comments andincluding the opportunity for a publichearing. This notice will state theavailability of information at the Office ofthe Chief of Engineers and at all districtoffices which reveals the Corps’provisional determination that theproposed activities comply with therequirements for issuance under generalpermit authority. The Chief of Engineerswill prepare this information which will besupplemented, if appropriate, by divisionengineers.

(b) District engineers. Concurrent withpublication in the Federal Register ofproposed, new, or reissued nationwidepermits by the Chief of Engineers, districtengineers will so notify the knowninterested public by an appropriate notice.The notice will include regionalconditions, if any, developed by thedivision engineer.

§ 330.5 Nationwide permits.

(a) Authorized activities. The followingactivities are hereby permitted providedthey meet the conditions listed inparagraph (b) of this section and, whererequired, comply with the notificationprocedures, of § 330.7.

(1) The placement of aids to navigationand regulatory markers which areapproved by and installed in accordancewith the requirements of the U.S. CoastGuard (33 CFR Part 66, Subchapter C).(Section 10)

(2) Structures constructed in artificialcanals within principally residentialdevelopments where the connection of thecanal to a navigable water of the UnitedStates has been previously authorized (see33 CFR Part 322.5(g)). (Section 10)

(3) The repair, rehabilitation, orreplacement of any previously authorized,currently serviceable, structure or fill, or ofany currently serviceable structure or fillconstructed prior to the requirement forauthorization, provided such repair,rehabilitation, or replacement does notresult in a deviation from the plans of theoriginal structure or fill, and furtherprovided that the structure or fill has notbeen put to uses differing from usesspecified for it in any permit authorizingits original construction. Minor deviationsdue to changes in materials or constructiontechniques and which are necessary tomake repair, rehabilitation, or replacementare permitted. Maintenance dredging andbeach restoration are not authorized by thisnationwide permit. (Section 10 and 404)

(4) Fish and wildlife harvesting devicesand activities such as pound nets, crabtraps, eel pots, lobster traps, duck blinds,and clam and oyster digging. (Section 10)

(5) Staff gages, tide gages, waterrecording devices, water quality testingand improvement devices, and similarscientific structures. (Section 10)

(6) Survey activities including coresampling, seismic exploratory operations,and plugging of seismic shot holes andother exploratory-type bore holes. Drillingof exploration-type bore holes for oil andgas exploration is not authorized by thisnationwide permit; the plugging of suchholes is authorized, (Sections 10 and 404).

(7) Outfall structures and associatedintake structures where the effluent fromthat outfall has been permitted under theNational Pollutant Discharge EliminationSystem program (Section 402 of the CleanWater Act) (see 40 CFR Part 122)provided that the district or divisionengineer makes a determination that theindividual and cumulative adverseenvironmental effects of the structure itselfare minimal in accordance with § 330.7(c)(2) and (d). Intake structures per se arenot included— only those directlyassociated with an outfall structure arecovered by this nationwide permit. Thispermit includes minor excavation, fillingand other work associated with installationof the intake and outfall structures.(Sections 10 and 404)

(8) Structures for the exploration.production, and transportation of oil, gas,and minerals on the outer continental shelfwithin areas leased for such purposes bythe Department of Interior, MineralManagement Service, provided thosestructures are not placed within the limitsof any designated shipping safety fairwayor traffic

separation scheme (where such limits havenot been designated or where changes areanticipated, district engineers will considerrecommending the discretionary authorityprovided by 330.8 of this Part, and furthersubject to the provisions of the fairwayregulations in 33 CFR 322.5(1) (Section10).

(9) Structures placed within anchorageor fleeting areas to facilitate moorage ofvessels where such areas have beenestablished for that purpose by the U.S.Coast Guard. (Section 10)

(10) Non-commercial, single-boat,mooring buoys. (Section 10)

(11) Temporary buoys and markersplaced for recreational use such as waterskiing and boat racing provided that thebuoy or marker is removed within 30 daysafter its use has been discontinued. AtCorps of Engineers reservoirs, thereservoir manager must approve each buoyor marker individually. (Section 10)

(12) Discharge of material for backfillor bedding for utility lines, includingoutfall and intake structures, providedthere is no change in preconstructionbottom contours (excess material must beremoved to an upland disposal area). A“utility line” is defined as any pipe orpipeline for the transportation of anygaseous, liquid, liquifiable, or slurrysubstance, for any purpose, and any cable,line, or wire for the transmission for anypurpose of electrical energy, telephone andtelegraph messages, and radio andtelevision communication. (The utility lineand outfall and intake structures willrequire a Section 10 permit if in navigablewaters of the United States. See 33 CFRPart 322. See also paragraph (a)(7) of thissection). (Section 404)

(13) Bank stabilization activitiesprovided:

(i) The bank stabilization activity is lessthan 500 feet in length;

(ii) The activity is necessary for erosionprevention;

(iii) The activity is limited to less thanan average of one cubic yard per runningfoot placed along the bank within watersof the United States;

(iv) No material is placed in excess ofthe minimum needed for erosionprotection;

(v) No material is placed in any wetlandarea;

(vi) No material is placed in anylocation or in any manner so as to impairsurface water flow into or out of anywetland area;

(vii) Only clean material free of wastemetal products, organic materials,unsightly debris, etc. is used; and

(viii) The activity is a single andcomplete project. (Sections 10 and 404)


(14) Minor road crossing fills includingall attendant features, both temporary andpermanent, that are part of a single andcomplete project for crossing of a non-tidalwaterbody, provided that the crossing isculverted, bridged or otherwise designed toprevent the restriction of, and to withstand,expected high flows and provided furtherthat discharges into any wetlands adjacentto the waterbody do not extend beyond100 feet on either side of the ordinary highwater mark of that waterbody. A “minorroad crossing fill” is defined as a crossingthat involves the discharge of less than 200cubic yards of fill material below the planeof ordinary high water. The crossing mayrequire a permit from the US Coast Guardif located in navigable waters of the UnitedStates. Some road fills may be eligible foran exemption from the need for a Section404 permit altogether (see 33 CFR 323.4).District engineers are authorized, wherelocal circumstances indicate the need, todefine the term “expected high flows” forthe purpose of establishing applicability ofthis nationwide permit. (Sections 10 and404)

(15) Discharges of dredged or fillmaterial incidental to the construction ofbridges across navigable waters of theUnited States, including cofferdams,abutments, foundation seals, piers, andtemporary construction and access fillsprovided such discharge has beenauthorized by the US Coast Guard as partof the bridge permit. Causeways andapproach fills are not included in thisnationwide permit and will require anindividual or regional Section 404 permit.(Section 404)

(16) Return water from an upland,contained dredged material disposal area(see 33 CFR 323.2(d)) provided the statehas issued a site specific or genericcertification under section 401 of the CleanWater Act (see also 33 CFR 325.2(b)(1)).The dredging itself requires a Section 10permit if located in navigable waters of theUnited States. The return water or runofffrom a contained disposal area isadministratively defined as a discharge ofdredged material by 33 CFR 323.2(d) eventhough the disposal itself occurs on theupland and thus does not require a section404 permit. This nationwide permitsatisfies the technical requirement for asection 404 permit for the return waterwhere the quality of the return water iscontrolled by the state through the section401 certification procedures. (Section 404)

(17) Fills associated with smallhydropower projects at existing reservoirswhere the project which includes the fill islicensed by the Federal Energy RegulatoryCommission (FERC) under the Federal

Power Act of 1920, as amended; has atotal generating capacity of not more than1500 kw (2.000 horsepower); qualifies forthe short-form licensing procedures of theFERC (see 18 CFR 4.61); and the districtor division engineer makes a determinationthat the individual and cumulative adverseeffects on the environment are minimal inaccordance with § 330.7 (c)(2) and (d).(Section 404)

(18) Discharges of dredged or fillmaterial into all waters of the UnitedStates other than wetlands that do notexceed ten cubic yards as part of a singleand complete project provided the materialis not placed for the purpose of streamdiversion. (Sections 10 and 404)

(19) Dredging of no more than ten cubicyards from navigable waters of the UnitedStates as part of a single and completeproject. This permit does not authorize theconnection of canals or other artificialwaterways to navigable waters of theUnited States (see Section 33 CFR322.5(g)). (Section 10)

(20) Structures, work, and dischargesfor the containment and cleanup of oil andhazardous substances which are subject tothe National Oil and HazardousSubstances Pollution Contingency Plan,(40 CFR Part 300), provided the RegionalResponse Team which is activated underthe Plan concurs with the proposedcontainment and cleanup action. (Sections10 and 404)

(21) Structures, work, dischargesassociated with surface coal miningactivities provided they were authorized bythe Department of the Interior, Office ofSurface Mining, or by states with approvedprograms under Title V of the SurfaceMining Control and Reclamation Act of1977; the appropriate district engineer isgiven the opportunity to review the Title Vpermit application and all relevant Officeof Surface Mining or state (as the case maybe) documentation prior to any decision onthat application; and the district or divisionengineer makes a determination that theindividual and cumulative adverse effectson the environment from such structures,work, or discharges are minimal inaccordance with § § 330.7 (c) (2) and (3)and (d). (Sections 10 and 404)

(22) Minor work, fills, or temporarystructures required for the removal ofwrecked, abandoned, or disabled vessels,or the removal of man-made obstructionsto navigation. This permit does notauthorize maintenance dredging, shoalremoval, or river bank snagging. (Sections10 and 404)

(23) Activities, work, and dischargesundertaken, assisted, authorized, regulated,funded, or financed, in whole or in part, byanother federal agency or departmentwhere that agency or department hasdetermined, pursuant to the CEQRegulation for Implementing theProcedural Provisions of the NationalEnvironmental Policy Act (40 CFR Part1500 et seq.), that the activity, work, ordischarge is categorically excluded fromenvironmental documentation because it isincluded within a category of actionswhich neither individually norcumulatively have a significant effect onthe human environment, and the Office ofthe Chief of Engineers (ATTN: DAEN-CWO— N) has been furnished notice ofthe agency’s or department’s applicationfor the categorical exclusion and concurswith that determination. Prior to approvalfor purposes of this nationwide permit ofany agency’s categorical exclusions, theChief of Engineers will solicit commentsthrough publication in the FederalRegister. (Sections 10 and 404)

(24) Any activity permitted by a stateadministering its own Section 404 permitprogram for the discharge of dredged orfill material authorized at 33 U.S.C.1344(g)— (l) is permitted pursuant tosection 10 of the Rivers and Harbors Actof 1899. Those activities which do notinvolve a section 404 state permit are notincluded in this nationwide permit butmany will be exempted by section 154 ofPub. L. 94— 587. (See 33 CFR322.3(a)(2)). (Section 10)

(25) Discharge of concrete into tightlysealed forms or cells where the concrete isused as a structural member which wouldnot otherwise be subject to Clean WaterAct jurisdiction. (Section 404)

(26) Discharges of dredged or fillmaterial into the waters listed inparagraphs (a)(26) (i) and (ii) of thissection except those which cause the lossor substantial adverse modificatioi1 of 10acres or more of such waters of the UnitedStates, including wetlands. For dischargeswhich cause the loss or substantial adversemodification of 1 to 10 acres of suchwaters, including wetlands, notification tothe district engineer is required inaccordance with section 330.7 of thissection. (Section 404).

(i) Non-tidal rivers, streams, and theirlakes and impoundments, includingadjacent wetlands, that are located abovethe headwaters.

(ii) Other non-tidal waters of the UnitedStates, including adjacent wetlands, thatare not part of a surface tributary system tointerstate waters or


navigable waters of the United States (i.e.,isolated waters).

(b) Conditions. The following specialconditions must be followed in order forthe nationwide permits identified inparagraph (a) of this section to be valid:

(1) That any discharge of dredged or fillmaterial will not occur in the proximity ofa public water supply intake.

(2) That any discharge of dredged or fillmaterial will not occur in areas ofconcentrated shellfish production unlessthe discharge is directly related to ashellfish harvesting activity authorized byparagraph (a)(4) of this section.

(3) That the activity will not jeopardizea threatened or endangered species asidentified under the Endangered SpeciesAct (ESA), or destroy or adversely modifythe critical habitat of such species. In thecase of federal agencies, it is the agencies’responsibility to comply with therequirements of the ESA. If the activitymay adversely affect any listed species orcritical habitat, the district engineer mustinitiate Section 7 consultation inaccordance with the ESA. in such cases,the district engineer may:

(i) Initiate section 7 consultation andthen, upon completion, authorize theactivity under the nationwide permit byadding, if appropriate, activity specificconditions, or

(ii) Prior to or concurrent with section 7consultation he may recommenddiscretionary authority (See section 330.8)or use modification, suspension, orrevocation procedures (See 33 CFR325.7).

(4) That the activity shall notsignificantly disrupt the movement ofthose species of aquatic life indigenous tothe waterbody (unless the primary purposeof the fill is to impound water);

(5) That any discharge of dredged or fillmaterial shall consist of suitable materialfree from toxic pollutants (see section 307of the Clean Water Act) in toxic amounts;

(6) That any structure or fill authorizedshall be properly maintained.

(7) That the activity will not occur in acomponent of the National Wild andScenic River System; nor in a riverofficially designated by Congress as a“study river” for possible inclusion in thesystem, while the river is in an officialstudy status;

(8) That the activity shall not cause anunacceptable interference with navigation;

(9) That, if the activity may adverselyaffect historic properties which theNational Park Service has listed on, ordetermined eligible for listing on, theNational Register of Historic Places, thepermittee will notify the district engineer.If the district engineer determines that such

historic properties may be adverselyaffected, he will provide the AdvisoryCouncil on Historic Preservation anopportunity to comment on the effects onsuch historic properties or he will considermodification, suspension, or revocation inaccordance with 33 CFR 325.7.Furthermore, that, if the permittee beforeor during prosecution of the workauthorized, encounters a historic propertythat has not been listed or determinedeligible for listing on the NationalRegister, but which may be eligible forlisting in the National Register. he shallimmediately notify the district engineer;

(10) That the construction or operationof the activity will not impair reservedtribal rights, including, but not limited to,reserved water rights and treaty fishing andhunting rights;

(11) That in certain states, an individualstate water quality certification must beobtained or waived (See § 330.9);

(12) That in certain states, an individualstate coastal zone management consistencyconcurrence must be obtained or waived(See § 330.10);

(13) That the activity will comply withregional conditions which may have beenadded by the division engineer (See §330.8(a)); and

(14) That the management practiceslisted in § 330.6 of this part shall befollowed to the maximum extentpracticable.

(c) Further information. (1) Districtengineers are authorized to determine if anactivity complies with the terms andconditions of a nationwide permit unlessthat decision must be made by the divisionengineer in accordance with § 330.7.

(2) Nationwide permits do not obviatethe need to obtain other Federal, state orlocal authorizations required by law,

(3) Nationwide permits do not grant anyproperty rights or exclusive privileges.

(4) Nationwide permits do not authorizeany injury to the property or rights ofothers.

(5) Nationwide permits do not authorizeinterference with any existing or proposedFederal project.

(d) Modification, Suspension orRevocation of Nationwide Permits. TheChief of Engineers may modify, suspend,or revoke nationwide permits inaccordance with the relevant procedures of33 CFR 325.7. Such authority includes,but is not limited to: adding individual,regional, or nationwide conditions;revoking authorization for a category ofactivities or a category of waters byrequiring individual or regional permits; orrevoking an authorization on a case-by-case basis. This authority is not limited toconcerns for the aquatic environment as is

the discretionary authority in § 330.8.

§ 330.6 Management practices.

(a) In addition to the conditionsspecified in § 330.5 of this Part, thefollowing management practices shall befollowed, to the maximum extentpracticable, in order to minimize theadverse effects of these discharges on theaquatic environment. Failure to complywith these practices may be cause for thedistrict engineer to recommend, or thedivision engineer to take, discretionaryauthority to regulate the activity on anindividual or regional basis pursuant to §330.8 of this Part.

(1) Discharges of dredged or fillmaterial into waters of the United Statesshall be avoided or minimized through theuse of other practical alternatives.

(2) Discharges in spawning areas duringspawning seasons shall be avoided.

(3) Discharges shall not restrict orimpede the movement of aquatic speciesindigenous to the waters or the passage ofnormal or expected high flows or cause therelocation of the water (unless the primarypurpose of the fill is to impound waters).

(4) If the discharge creates animpoundment of water, adverse impacts onthe aquatic system caused by theaccelerated passage of water and/or therestriction of its flow shall be minimized,

(5) Discharge in wetlands dress shall beavoided.

(6) Heavy equipment working inwetlands shall be placed on mats.

(7) Discharges into breeding areas formigratory waterfowl shall be avoided.

(8) All temporary fills shall be removedin their entirety.

§ 330.7 Notification procedures.

(a) The general permittee shall not begindischarges requiring pre-dischargenotification pursuant to the nationwidepermit at § 330.5(a)(26):

(1) Until notified by the district engineerthat the work may proceed under thenationwide permit with any specialconditions imposed by the district ordivision engineer; or

(2) if notified by the district or divisionengineer that an individual permit may berequired; or

(3) Unless 20 days have passed fromreceipt of the notification by the districtengineer arid no notice has been


received from the district or divisionengineer.

(b) Notification pursuant to thenationwide permit at § 330.5(a)(26) mustbe in writing and include the informationlisted below. Notification is not anadmission that the proposed work wouldresult in more than minimal impacts towaters of the United States; it simplyallows the district or division engineer toevaluate specific activities for compliancewith general permit criteria.

(1) Name, address, and phone numberof the general permittee;

(2) Location of the planned work; (3)Brief description of the proposed work, itspurpose, and the approximate size of thewaters, including wetlands, which wouldbe lost or substantially adversely modifiedas a result of the work; and

(4) Any specific information required bythe nationwide permit and any otherinformation that the permittee believes isappropriate.

(c) District engineer review ofnotification. Upon receipt of notification,the district engineer will promptly reviewthe general permittee’s notification todetermine which of the followingprocedures should be followed:

(1) If the nationwide permit at §330.5(a)(26) is involved and the districtengineer determines either, (i) theproposed activity falls within a class ofdischarges or will occur in a category ofwaters which has been previouslyidentified by the Regional Administrator,Environmental Protection Agency; theRegional Director, Fish and WildlifeService; the Regional Director, NationalMarine Fisheries Service; or the heads ofthe appropriate state natural resourceagencies as being of particular interest tothose agencies; or (ii) the particulardischarge has not been previouslyidentified but he believes it may be ofimportance to those agencies, he willpromptly forward the notification to thedivision engineer and the head andappropriate staff officials of those agenciesto afford those agencies an adequateopportunity before such discharge occursto consider such notification and expresstheir views, if any, to the district engineerconcerning whether individual permitsshould be required.

(2) If the nationwide permits at §330.5(a) (7), (17), or (21) are involved andthe Environmental Protection Agency, theFish and Wildlife Service, the NationalMarine Fisheries Service or theappropriate state natural resource or waterquality agencies forward concerns to thedistrict engineer, he will forward thoseconcerns to the division engineertogether with a statement of the factorspertinent to a determination of the

environmental effects of the proposeddischarges, including those set forth in the404(b)(1) guidelines, and his views on thespecific points raised by those agencies.

(3) If the nationwide permit at §330.5(a)(21) is involved the districtengineer will give notice to theEnvironmental Protection Agency and theappropriate state water quality agency.This notice will include as a minimum theinformation required by paragraph (b) ofthis section.

(d) Division engineer review ofnotification. The division engineer willreview all notifications referred to him inaccordance with paragraph (c)(1) or (c)(2)of this section. The division engineer willrequire an individual permit when hedetermines that an activity does notcomply with the terms or conditions of anationwide permit or does not meet thedefinition of a general permit (see 33 CFR322.2(f) and 323.2(n)) includingdischarges under the nationwide permit at§ 330.5(a)(26) which have more thanminimal adverse environmental effects onthe aquatic environment when viewedeither cumulatively or separately. Inreaching his decision, he will reviewfactors pertinent to a determination of theenvironmental effects of the proposeddischarge, including those set forth in the404(b)(1) guidelines, and will give fullconsideration to the views, if any, of thefederal and state natural resource agenciesidentified in paragraph (c) of this section.If the division engineer decides that anindividual permit is not required, and afederal or appropriate state naturalresource agency has indicated in writingthat an activity may result in more thanminimal adverse environmental impacts,he will prepare a written statement,available to the public on request, whichsets forth his response to the specificpoints raised by the commenting agency.When the division engineer reaches hisdecision he will notify the districtengineer, who will immediately notify thegeneral permittee of the divisionengineer’s decision.

§ 330.8 Discretionary authority.

Except as provided in paragraphs (c) (2)and (d) of this section, division engineerson their own initiative or uponrecommendation of a district engineer areauthorized to modify nationwide permitsby adding regional conditions or tooverride nationwide permits by requiringindividual permit applications on a case-by-case basis, for a category of activities,or in specific geographic areas.Discretionary authority will bebased on concerns for the aquatic

environment as expressed in the guidelinespublished by EPA pursuant to section404(b)(1). (40 CFR Part 230)

(a) Activity Specific conditions. Divisionengineers are authorized to modifynationwide permits by adding individualconditions on a case-by-case basisapplicable to certain activities within theirdivision. Activity specific conditions maybe added by the District Engineer ininstances where there is mutual agreementbetween the district engineer and thepermittee. Furthermore, district engineerswill condition NWPs with conditionswhich have been imposed on a statesection 401 water quality certificationissued pursuant to § 330.9 of this Part.

(b) Regional conditions. Divisionengineers are authorized to modifynationwide permits by adding conditionson a generic basis applicable to certainactivities or specific geographic areaswithin their divisions. In developingregional conditions, division and districtengineers will follow standard permitprocessing procedures as prescribed in 33CFR Part 325 applying the evaluationcriteria of 33 CFR Part 320 andappropriate parts of 33 CFR Parts 321,322, 323, and 324. Division and districtengineers will take appropriate measuresto inform the public of the additionalconditions.

(c) Individual permits— (1) Case-by-Case. In nationwide permit cases whereadditional individual or regionalconditioning may not be sufficient toaddress concerns for the aquaticenvironment or where there is notsufficient time to develop such conditionsunder paragraphs (a) or (b) of this section,the division engineer may suspend use ofthe nationwide permit and require anindividual permit application on a case-by-case basis. The district engineer willevaluate the application and will eitherissue or deny a permit. However, if at anytime the reason for taking discretionaryauthority is satisfied, then the divisionengineer may remove the suspension,reactivating authority under the nationwidepermit. Where time is of the essence, thedistrict engineer may telephonicallyrecommend that the division engineerassert discretionary authority to require anindividual permit application for a specificactivity. If the division engineer concurs,he may orally authorize the districtengineer to implement that authority. Oralauthorization should be followed bywritten confirmation.

(2) Category. Additionally, after noticeand opportunity for public hearing,division engineers may decide thatindividual permit applications


should be required for categories ofactivities, or in specific geographic areas.However, only the Chief of Engineers maymodify, suspend, or revoke nationwidepermits on a statewide or nationwide basis.The division engineer will announce thedecision to persons affected by the action.The district engineer will then regulate theactivity or activities by processing anapplication(s) for an individual permit(s)pursuant to 33 CFR Part 325.

(d) For the nationwide permit found at §330.5(a)(26). after the applicableprovisions of § 330.7(a) (1) and (3) havebeen satisfied, the permittee’s right toproceed under the general permit may bemodified, suspended, or revoked only inaccordance with the procedure set forth in33 CFR 325.7.

(e) A copy of all modifications orrevocations of activities covered bynationwide permits will be forwarded tothe Office of the Chief of Engineers,ATFN: DAEN— CWO--N.

§ 330.9 State water quality certification.

(a) State water quality certification isrequired for nationwide permits whichmay result in any discharge into waters ofthe United States. If a state issues a waterquality certification which includes specialconditions, the district engineer will addthese conditions as conditions of thenationwide permit in that state. However,if such conditions do not comply with theprovisions of 33 CFR 325.4 or if a statedenies a required 401 certification for aparticular nationwide permit, authorizationfor all discharges covered by thenationwide permit within the state isdenied without prejudice until the stateissues an individual or generic waterquality certification or waives its right todo so. A district engineer will not processan individual permit application for anactivity for which authorization has beendenied without prejudice under thenationwide permit program. However, ifthe division engineer determines that itwould otherwise be appropriate to exercisehis discretionary authority, pursuant to §330.8, to override the nationwide permit orpermits in question, he may do so, and thedistrict engineer may proceed with theprocessing of individual permitapplications. In instances where a state hasdenied the 401 water quality certificationfor discharges under a particularnationwide permit, applicants must furnishthe district engineer with an individual orgeneric 401 certification or a copy of theapplication to the state for the certification.If a state fails to act within a reasonableperiod of time (see § 325 2(b)(1)(ii)), awaiver will be presumed. Upon receipt of

an individual or generic certification or awaiver of certification, the proposed workis authorized under the nationwide permit.If a state issues a conditioned individualcertification, the district engineer willinclude those conditions that comply with33 CFR 325.4 as special conditions of thenationwide permit (see 33 CFR Part330.8(a)) and notify the applicant that thework is authorized under the nationwidepermit provided all conditions are met.

(b) Certification requirements fornationwide permits fall into the followinggeneral categories:

(1) No certification required.Nationwide permits numbered 1, 2, 4, 5, 8,9, 10, 11, and 19 do not involve activitieswhich may result in a discharge andtherefore 401 certification is notapplicable.

(2) Certification sometimes required.Nationwide permits numbered 3, 6, 7, 13,20, 21, 22, and 23 each involve variousactivities, some of which may result in adischarge and require certification, andothers of which do not. State denial ofcertification for any specific nationwidepermit in this category affects only thoseactivities involving discharges, Those notinvolving discharges remain in effect.

(3) Certification required. Nationwidepermits numbered 12, 14, 15, 16, 17, 18,24, 25, and 26 involve activities whichwould result in discharges and therefore401 certification is required.

(c) District engineers will takeappropriate measures to inform the publicof which waterbodies or regions within thestate, and for which nationwide permits, anindividual 401 water quality certification isrequired.

§ 330.10 Coastal zone managementconsistency determination.

In instances where a state has notconcurred that a particular nationwidepermit is consistent with an approvedcoastal zone management plan,authorization for all activities subject tosuch nationwide permit within or affectingthe state coastal zone agency’s area ofauthority is denied without prejudice untilthe applicant has furnished to the districtengineer a coastal zone managementconsistency determination pursuant tosection 307 of the Coastal ZoneManagement Act and the state hasconcurred in it. If a state does not act on anapplicant’s consistency statement withinsix months after receipt by the state,consistency shall be presumed. Districtengineers will take appropriate measuresto inform the public of which waterbodiesor regions within the state, and for whichnationwide permits, such individualconsistency determination is required.District engineers will not process any

permit application for an activity whichhas been denied without prejudice underthe nationwide permit program. However,if the division engineer determines that itwould otherwise be appropriate to exercisehis discretionary authority, pursuant to §330.8, to override the nationwide permit orpermits in question, he may do so, and thedistrict engineer may proceed with theprocessing of individual permitapplications.

§ 330.11 Nationwide permit verification.

(a) General permittees may, and in somecases must, request from a district engineerconfirmation that an activity complies withthe terms and conditions of a nationwidepermit. District engineers will respondpromptly to such requests. The responsewill state that the verification is valid for aperiod of no more than two years or alesser period of time if deemedappropriate. Section 330.12 takesprecedence over this section, therefore, itis incumbent upon the permittee to remaininformed of changes to nationwidepermits.

(b) If the district engineer decides thatan activity does not comply with the termsor conditions of a nationwide permit, hewill so notify the person desiring to do thework and indicate that an individual permitis required (unless covered by a regionalpermit).

(c) If the district engineer decides thatan activity does comply with the terms andconditions of a nationwide permit he willso notify the general permittee. In suchcases, as with any activity which qualifiesunder a nationwide permit, the generalpermittee’s right to proceed with theactivities under the nationwide permit maybe modified, suspended, or revoked only inaccordance with the procedures of 33 CFR325.7.

§ 330.12 Expiration of nationwidepermits.

The Chief of Engineers will reviewnationwide permits on a continual basis,and will decide to either modify, reissue(extend) or revoke the permits at leastevery five years. If a nationwide permit isnot modified or reissued within five yearsof publication in the Federal Register, itautomatically expires and becomes nulland void. Authorization of activities whichhave commenced or are under contract tocommence in reliance upon a nationwidepermit will remain in effect provided theactivity is completed within twelve monthsof the date a nationwide permit has expiredor was revoked unless discretionary permitauthority has been exercised in


accordance with § 330.8 of this Part ormodification, suspension, or revocationprocedures are initiated in accordance withthe relevant provisions of 33 CFR 325.7.Activities completed under theauthorization of a nationwide permit whichwas in effect at the time the activity wascompleted continue to be authorized bythat nationwide permit.

[FR Doc. 86-25301 Filed 11-12-86; 8:45am]BILLING CODE 3710-92-M

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