Understanding the U.S. Army Corps of Engineers Regulatory Program

Table of Contents

• Why Does the Program Exist?
• What Authority Requires the Corps to Regulate the Waters of the United States?
• What are the Limits of Corps Jurisdiction?
• What Activities are Regulated?
• Who Needs a Permit
• How Long Will it Take to Obtain a Permit
• What Happens to the Application After it is Received by the Corps of Engineers?
• What Can I Do to Make the Process Proceed as Fast as Possible?
• What Does the Corps Consider in the Evaluation of a Permit Application?
• Will There be a Public Hearing?
• What is an Alternatives Analysis?
• Can a Permit Request be Denied?
• What are Nationwide Permits?
• Are There Other Types of General Permits?
• What if the Project is NOT Authorized Under a General Permit?
• What is a Public Notice?
• Which Application do I Use?
• What if Work has Been Started or Done Without a Permit?
• What is Mitigation?
• Do These Regulations Apply to Farms?
• How do Your Obtain an Application Package?

Why Does The Program Exist?

The U.S. Army Corps of Engineers has been involved in regulating certain activities in the nation´s waters since 1899. Until 1968, the primary interest of the Corps regulatory Program was navigation. As a result of several new laws and judicial decisions, the program evolved from one that focused on navigation to one that considers an array of public interest factors. The Corps must balance favorable impacts against detrimental ones. The current program reflects the national concern for both the protection and utilization of important water resources. Protection of water resources is important because it provides clean drinking water, food chain support, recreational opportunities, and wildlife habitat. Top of Document

What Authority Requires the Corps to Regulate the Waters of the United States?

Two laws delegate the authority to regulate waters of the U.S. to the Corps of Engineers. These laws are:

• Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) (links to Cornell University Law Library). Under this law a permit is required for any structure or work that takes place in, under, or over a navigable water, or wetlands adjacent to navigable waters of the United States.
• Section 404 of the Clean Water Act (33 U.S.C. 1344) (links to Cornell University Law Library). Under this law a permit is required for activities which involve a discharge of dredged or fill material into a water of the United States including wetlands. Discharge activities which will drain or flood wetlands or significantly disturb the soils of a wetland also require a permit.

Other related laws which affect the regulatory program include: (All Link to the Cornell University Law Library)

• The Coastal Zone Management Act
• The Endangered Species Act
• The Fish and Wildlife Coordination Act
• The Federal Power Act
• The National Environmental Policy Act (NEPA)
• The National Historic Preservation Act

What Are The Limits Of Corps Jurisdiction?

The Corps of Engineers has jurisdiction over all waters of the United States. In the Buffalo District these waters include lakes, rivers, streams, intermittent tributaries, mudflats, vegetated shallows, and wetlands. Some ditches and ponds are also regulated. In general, Corps jurisdiction occurs at or below the Ordinary High Water (OHW) level or at the wetland/upland boundary. Top of Document

What Activities Are Regulated?

Examples of regulated activities include but are not limited to: dredging, filling, excavating, landclearing using mechanized equipment, ditching, stream channelization and relocation, shoreline protection, and dock construction. Top of Document

Who Needs A Permit?

Permits are required for all projects which involve work in a water of the United States. Applicants may be private individuals, large or small businesses, farms, corporations, marina operators, Federal and State agencies, highway departments, utility companies, parks departments and local governments. Top of Document

How Long Will It Take To Obtain A Permit?

The length of time required to process your application will vary depending on the size and scope of your project. Other factors which influence the length of time required to evaluate the proposal include the project location, the expected impact on the aquatic environment and the completeness of your application. Small, relatively simple projects that fall under the Nationwide Permit program can be affirmed in as little as three weeks. Sometimes many applications are received at the same time. This may delay the processing time. You are encouraged to submit your application as soon as you think you will be working in a water of the United States, including wetlands. Large, complicated projects, controversial projects or those projects proposed for environmentally sensitive areas often require a longer evaluation period. Three months is the average evaluation time for this type of project. Please remember that receipt of a Department of the Army permit does not relieve you of the responsibility for obtaining local authorizations. Top of Document

What Happens To The Application After It Is Received By The Corps Of Engineers?

Upon arrival in the Regulatory Branch, your application is date stamped and entered into our computer system. The application is assigned a processing number which is used to track the status of your application. A project manager will be assigned to your application. The project manager will contact you with any questions he or she may have regarding your proposal. Top of Document

What Can I Do To Make The Process Proceed As Fast As Possible?

The evaluation of any project takes time. However, there are certain things you can do which will help speed up the process. First of all, you should completely fill in your application form and sign it. Send drawings and maps on 81/2 x 11 inch paper. Include a phone number where you can be reached during business hours. Although not required, photographs and full-size drawings will help us evaluate the project. Sometimes the project manager will need to visit the proposed project site. If you have a large complex project or are unfamiliar with Corps procedures, you may request a pre-application meeting with one of our project managers. The project manager will listen to your ideas and discuss alternatives which may be incorporated into your permit application. Top of Document

What Does The Corps Consider In The Evaluation Of A Permit Application?

The Corps conducts a public interest review prior to making a decision to authorize work in a water of the United States. During this review, the project manager will evaluate the effect of the proposed project on the overall public good. The process involves balancing factors associated with the anticipated public and private benefits and detriments which may occur if the project proceeds. Top of Document

Will There Be A Public Hearing?

The primary reason for holding a public hearing is to allow the Corps to obtain information that is not otherwise available, and which is necessary to properly evaluate the permit application. In most cases public hearings are not necessary. Top of Document

What Is An Alternative Analysis?

An alternative analysis involves considering other practicable ways to do the project which will reduce environmental impacts. Examples of alternatives may include using a different location, different alignment of structures, and/or the use of different construction techniques. Under the USEPA 404(b)(1) Guidelines (40 CFR 230), the water dependent nature of the proposed project is an important factor. If the proposed project is not a marina or another type of project which needs to be located in the waterway or wetland to fulfill its primary purpose, alternatives are presumed to exist. For example, parking lots, houses and shopping centers do not need to be located in waters or wetlands to fulfill their primary purpose. Therefore, if you are proposing a new project, you need to consider the water-dependent nature of the proposal. Top of Document

Can A Permit Request Be Denied?

Only a small percentage of requests for permits are denied. If you are willing to work with the Corps project manager and incorporate measures which will serve to reduce negative environmental impacts, you will usually receive a permit. You are encouraged to remain flexible in your approach to the project design and allow enough time for the regulatory process to run its course. Top of Document

What Are Nationwide Permits?

Certain activities have been determined to have minimal environmental impact and are authorized under General Permits. A Nationwide Permit is one type of General Permit. Nationwide Permits are periodically reviewed and updated. Some Nationwide Permits require prior notification to the Corps of Engineers. Some Nationwide Permits also require the Corps of Engineers to coordinate your application with other Federal and State agencies. It is recommended that you complete and submit an application even if you think your project is covered under a nationwide permit. You may obtain a copy of the current Nationwide Permits by selecting this link or by contacting the Buffalo District Office. Top of Document

Are There Other Types Of General Permits?

In addition to the Nationwide Permits, Corps districts have developed Regional Permits to help provide authorization for activities having minor impacts but do not fall under existing Nationwide Permit authorization. Regional Permits were developed to help expedite the processing of specific types of applications. An example of a Regional Permit developed by the Buffalo District is for the placement of open pile docks that do not exceed certain dimensions. You must submit an application to receive a Regional Permit affirmation letter from the Corps. Top of Document

What If The Project Is Not Authorized Under A General Permit?

A project that is not covered under one of the General Permits may be authorized by Individual Permit. There are two types of Individual Permits: A Letter of Permission and a Standard Permit. A Letter of Permission is a permit issued after an abbreviated evaluation procedure that includes coordination with Federal and State resource agencies and a public interest evaluation. A Standard Permit involves the issuance of a public notice. These types of permits are tailored to the individual project under review. Top of Document

What Is A Public Notice?

If a project requires authorization under a Standard Permit, the Corps project manager will prepare a Public Notice which describes the proposed project. The purpose of the Public Notice is to obtain information that will assist the project manager in the evaluation of the proposal. Public Notices are distributed to post offices, adjacent property owners, appropriate local governmental officials, including Federal and State resource agencies, Congressional representatives, local news media, the applicant and other interested persons. The comment period is usually 30 days although sometimes the comment period is limited to 15 days. Occasionally, the public will request an extension to the comment period to allow more time to submit project or site specific information. These requests are usually granted. Top of Document

Which Application Form Do I Use?

If your project is located in New York State, the appropriate application form is entitled, "Joint Application For Permit". Use this form to apply for permits from both the U.S. Army Corps of Engineers and the New York State Department of Environmental Conservation. If your project is located in the State of Ohio, the appropriate application form is entitled, "Application For Department Of The Army Permit." These permit application forms are used for both General Permits and Individual Permits. The Corps project manager will determine which type of permit is required to authorize the work. Top of Document

What If Work Has Been Started Or Done Without A Permit?

If you have started or completed work, you should notify us as soon as possible. Our staff will evaluate your project and discuss the various procedures and options available to you. They will explain the applicable laws that pertain to your project and work with you in trying to resolve your specific situation. Not all actions are violations. Your project may not be in violation of Federal regulations. Top of Document

What Is Mitigation?

Mitigation is the end point of a three-step, sequential process designed to reduce the adverse effects of development projects on the aquatic environment. Mitigation tends to be project-specific and is based on the function and value of the impacted resource. Therefore, there is no set mitigation requirement for a particular project. However, the general steps to mitigation are as follows:

• AVOIDANCE- design the project to avoid as much of the sensitive area as possible.
• MINIMIZATION- use construction techniques, materials and equipment and project modifications to reduce impacts to the environment.
• MITIGATION-provide replacement for the unavoidably impacted resource. Top of Document

Do These Regulations Apply To Farms?

Certain agricultural activities are exempt from Department of the Army regulation. However, these exemptions apply only to lands that are currently under agricultural production and do not apply to activities that would bring new land into production. Our staff or your local Natural Resources Conservation Service (formerly, the Soil Conservation Service) representative can help you to determine if you need to apply for a Corps of Engineers permit. Farmland may be subject to regulation under the Swampbuster Act. The Natural Resources Conservation Service is the lead agency for activities on agricultural land. You should contact them directly if you have questions about regulatory requirements. Top of Document

How Do You Obtain An Application Package?

You can get an application package by calling our office at 716-879-4330. If you receive a voicemail message, please leave your name and address and request an application package. Please give the project location including the town, county, state and waterway. If you briefly describe your project, our staff will tailor the application package to your specific needs. Please speak slowly and clearly. You may also stop into one of our field offices located in Auburn, New York, and in Bowling Green and Orwell, Ohio. Additional information on our regulatory program including updates, new regulations and policy letters can be obtained from the Corps website: http://www.lrb.usace.army.mil/orgs/offices/form.htm