Introduction
The Department of the Army regulatory program is one of the oldest in
the Federal Government. Initially it served a fairly simple,
straightforward purpose: to protect and maintain the navigable capacity
of the nation's waters. Time, changing public needs, evolving policy,
case law, and new statutory mandates have changed the complexion ofthe
program, adding to its breadth, complexity, and authority.
Legislative Authorities
The legislative origins of the program are the Rivers and Harbors Acts
of 1890 (superseded) and 1899 (33 U.S.C. 401, et seq.). Various
sections establish permit requirements to prevent unauthorized
obstruction or alteration of any navigable water of the United States.
The most frequently exercised authority is contained in
Section 10 (33 U.S.C. 403) which covers construction, excavation, or deposition of
materials in, over, or under such waters, or any work which would
affect the course, location, condition, or capacity of those waters.
The authority is granted to the Secretary of the Army. Other permit
authorities in the Act are Section 9
for dams and dikes, Section 13 for
refuse disposal, and Section 14 for temporary occupation of work built
by the United States. Various pieces of legislation have modified
these authorities, but not removed them.
In 1972, amendments to the Federal Water Pollution Control Act added
what is commonly called Section 404
authority (33 U.S.C. 1344) to the
program. The Secretary of the Army, acting through the Chief of
Engineers, is authorized to issue permits, after notice and opportunity
for public hearings, for the discharge of dredged or fill material into
waters of the United States at specified disposal sites. Selection of
such sites must be in accordance with guidelines developed by the
Environmental Protection Agency (EPA) in conjunction with the Secretary
of the Army; these guidelines are known as
the 404(b)(1) Guidelines.
The discharge of all other pollutants into waters of the U. S. is
regulated under Section 402 of the Act which supersedes the Section 13
permitting authority mentioned above. The Federal Water Pollution
Control Act was further amended in 1977 and given the common name of
"Clean Water Act" and was again amended in 1987 to modify criminal and
civil penalty provisions and to add an administrative penalty
provision.
Also in 1972, with enactment of the Marine Protection, Research, and
Sanctuaries Act, the Secretary of the Army, acting through the Chief of
Engineers, was authorized to issue permits for the transportation of
dredged material to be dumped in the ocean. This authority also
carries with it the requirement of notice and opportunity for public
hearing. Disposal sites for such discharges are selected in accordance
with criteria developed by EPA in consultation with the Secretary of
the Army.
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Geographic Extent
The geographic jurisdiction of the Rivers and Harbors Act of 1899
includes all navigable waters of the United States which are defined
(33 CFR Part 329) as,
"those waters that are subject to the ebb and
flow of the tide and/or are presently used, or have been used in the
past, or may be susceptible to use to transport interstate or foreign
commerce." This jurisdiction extends seaward to include all ocean
waters within a zone three nautical miles from the coast line (the
"territorial seas"). Limited authorities extend across the outer
continental shelf for artificial islands, installations and other
devices (see 43 U.S.C. 333 (e)). Activities requiring Section 10
permits include structures (e.g., piers, wharfs, breakwaters,
bulkheads, jetties, weirs, transmission lines) and work such as
dredging or disposal of dredged material, or excavation, filling, or
other modifications to the navigable waters of the United States.
The Clean Water Act uses the term "navigable waters" which is defined
(Section 502(7)) as "waters of the United States, including the
territorial seas. " Thus, Section 404 jurisdiction is defined as
encompassing Section 10 waters plus their tributaries and adjacent
wetlands and isolated waters where the use, degradation or destruction
of such waters could affect interstate or foreign commerce.
Activities, requiring Section 404 permits are limited to discharges of
dredged or fill materials into the waters of the United States. These
discharges include return water from dredged material disposed of on
the upland and generally any fill material (e.g., rock, sand, dirt)
used to construct fast land for site development, roadways, erosion
protection, etc.
The geographic scope of Section 103
of the Marine Protection Research
and Sanctuaries Act of 1972 is those waters of the open seas lying
seaward of the baseline from which the territorial sea is measured.
Along coast lines this baseline is generally taken to be the low water
line. Thus, there is jurisdiction overlap with the Clean Water Act.
By interagency agreement with EPA, the discharge of dredged material in
the territorial seas is regulated under the Section 103 criteria rather
than those developed for Section 404.
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Delegation of Authority
Most of these permit authorities (with specific exception of Section 9)
have been delegated by the Secretary of the Army to the Chief of
Engineers and his authorized representatives. Section 10 authority was
formally delegated on May 24, 1971, with Section 404 and 103
authorities delegated on March 12, 1973. Those exercising these
authorities are directed to evaluated the impact of the proposed work
on the public interest. Other applicable factors (such as the
404(b)(1) Guidelines and ocean dumping criteria) must also be met, of
course. In delegating this authority, the Secretary of the Army
qualified it to "...[be] subject to such conditions as I or my
authorized representatives may from time to time impose."
Additional clarification of this delegation is provided in the
program's implementing
regulations (33 CFR 320-331).
Division and
district engineers are authorized to issue conditioned permits (Part
325.4) and to modify, suspend, or revoke them (Part 325.7). Division
and district engineers also have authority to issue alternate types of
permits such as letters of permission and regional general permits
(Part 325.2). In certain situations the delegated authority is limited
(Part 325.8).
This delegation recognizes the decentralized nature and management
philosophy of the Corps of Engineers organization. Regulatory program
management and administration is focused at the district office level,
with policy oversight at higher levels. The backbone of the program is
the Department of the Army regulations (33 CFR 320-331) which provide
the district engineer the broad policy guidance needed to administer
day-to-day operation of the program. These regulations have evolved
over time, changing to reflect added authorities, developing case law,
and in general the concerns of the public. They are developed through
formal rule making procedures.
If a district engineer has the authority under Part 325.8 to make a
final decision on a permit application and he makes that decision in
accordance with the procedures and authorities contained in the
regulations, there is no formal administrative appeal of that
decision.
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Processing Steps
The basic form of authorization used by Corps districts is the
individual permit. Processing such permits involves evaluation of
individual, project specific applications in what can be considered
three steps: pre-application consultation (for major projects), formal
project review, and decision making.
Pre-application consultation usually involves one or several meetings
between an applicant, Corps district staff, interested resource
agencies (Federal, state, or local), and sometimes the interested
public. The basic purpose of such meetings is to provide for informal
discussions about the pros and cons of a proposal before an applicant
makes irreversible commitments of resources (funds, detailed designs,
etc.). The process is designed to provide the applicant with an
assessment of the viability of some of the more obvious alternatives
available to accomplish the project purpose, to discuss measures for
reducing the impacts of the project, and to inform him of the factors
the Corps must consider in its decision making process.
Once a complete application is received, the formal review process
begins. Corps districts operate under what is called a project manager
system, where one individual is responsible for handling an application
from receipt to final decision. The project manager prepares a public
notice, evaluates the impacts of the project and all comments received,
negotiates necessary modifications of the project if required, and
drafts or oversees drafting of appropriate documentation to support a
recommended permit decision. The permit decision document includes a
discussion of the environmental impacts of the project, the findings of
the public interest review process, and any special evaluation required
by the type of activity such as compliance determinations with the
Section 404(b)(1) Guidelines
or the ocean dumping criteria.
The Corps supports a strong partnership with states in regulating
water resource developments. This is achieved with joint permit
processing procedures (e.g., joint public notices and hearings),
programmatic general permits founded on effective state programs,
transfer of the Section 404 program in non-navigable waters, joint
EISs, special area management planning, and regional conditioning of
nationwide permits.
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Permit Decision
Of great importance to the project evaluation is the Corps public
interest balancing process. The public benefits and detriments of all
factors relevant to each case are carefully evaluated and balanced.
Relevant factors may include conservation, economics, aesthetics,
wetlands, cultural values, navigation, fish and wildlife values, water
supply, water quality, and any other factors judged important to the
needs and welfare of the people. The following general criteria are
considered in evaluating all applications:
- the relevant extent of public and private needs;
- where unresolved conflicts of resource use exist, the
practicability of using reasonable alternative locations and methods to
accomplish project purposes; and
- the extent and permanence of the beneficial and/or detrimental
effects the proposed project may have on public and private uses to
which the area is suited.
No permit is granted if the proposal is found to be contrary to the
public interest.
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Alternate Forms of Authorization
There are alternate forms of authorization used in certain prescribed
situations. Letters of permission may be used where, in the opinion of
the district engineer, the proposed work would be minor, not have
significant individual or cumulative impact on environmental values,
and should encounter no appreciable opposition. In such situations,
the proposal is coordinated with all concerned fish and wildlife
agencies, and generally adjacent property owners who might be affected
by the proposal, but the public at large is not notified. The public
interest balancing process is again central to the decision making
process on letters of permission. Another form of authorization is the
general permit. General permits are not normally developed for an
individual applicant, but cover activities the Corps has identified as
being substantially similar in nature and causing only minimal
individual and cumulative environmental impacts. These permits may
cover activities in a limited geographic area (e.g., county or state),
a particular region of the county (e.g., group of contiguous states),
or the nation. The Corps element developing such permits is that one
which has geographic boundaries encompassing the particular permit.
Processing, such permits closely parallels that for individual permits,
with public notice, opportunity for hearing and detailed decision
documentation.
A programmatic general permit is one founded on an existing state,
local or other Federal agency program and designed to avoid duplication
with that program. Nationwide general permits are issued by the Chief
of Engineers through the Federal Register rulemaking process.
Nationwide general permits are found at
33 CFR Part 330, Appendix A.
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Public Involvement
Public involvement plays a central role in the Corps' administration of
its regulatory program. The major tools used to interact with the
public are the public notice and public hearing. The public notice is
the primary method of advising all interested parties of a proposed
activity for which a permit is sought and of soliciting comments and
information necessary to evaluate the probable beneficial and
detrimental impacts on the public interest. Public notices on proposed
projects always contain a statement that anyone commenting may request
a public hearing. Public hearings are held if comments raise
substantial issues which cannot be resolved informally and the Corps
decision maker determines that information from such a hearing is
needed to make a decision. Public notices are used to announce
hearings. The public is also informed by notice on a monthly basis of
permit decisions.
Any project on which an Environmental Impact Statement (EIS) will be
prepared is subject to additional public involvement. The preparation
of EISs is governed by regulations implementing the
National
Environmental Policy Act (NEPA). The first stage of EIS development is
the scoping process which is the means by which substantive issues are
identified for further study in the EIS. The NEPA scoping process
begins with the publication of a Notice of Intent to prepare an EIS.
The scoping process itself often involves actual face-to-face
participation of the interested public. The availability of the draft
EIS is announced through public notice. It is the notice which is
intended to solicit comments not only on the NEPA document but
substantive comments on the proposal itself. Again, with these complex
projects, the public may request a public hearing. Sometimes the Corps
decision maker will independently decide to hold a public hearing and
announcement of it will be incorporated into the notice of availability
of the NEPA document. The public is also informed through notice of
the availability of the final EIS, any EIS supplement, and the
availability of the decision maker's record of decision. Thus, a
permit application requiring preparation of an EIS can involve five or
more notices to the public during the review process.
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Internal Decision Safeguards
The permit evaluation process contains many safeguards designed to
ensure objectivity in the evaluation process. Even before an
application is formally submitted, such safeguards come into play, for
example, in the pre-application consultation stage. Probably the
single biggest safeguard of the program is the Corps public interest
review, which also forms the main framework for overall evaluation of
the project. This review requires the careful weighing of all public
interest factors relevant to each particular case. Thus, one specific
factor (e.g., economic benefits) cannot by itself force a specific
decision, but rather the decision represents the net effect of
balancing all factors, many of which are frequently in conflict.
The public interest review is used to evaluate applications under all
authorities administered by the Corps. There are additional evaluation
criteria used for specific authorities. For example, applications for
fill in waters of the United States are also evaluated using, the
Section 404(b)(1) Guidelines developed by EPA in conjunction with the
Department of the Army. These guidelines are heavily weighted towards
preventing environmental degradation of waters of the United States and
so place additional constraints on Section 404 discharges. Likewise,
ocean dumping permits (Section 103) are evaluated using special
criteria developed by EPA in consultation with Army. These criteria
are also primarily aimed at preventing environmental degradation and
set up some very stringent tests which must be passed before a Section
103 permit can be granted. Although required for permit issuance,
compliance with these authority specific criteria is only a part of the
public interest review. Therefore, projects which comply with the
criteria may still be denied a permit if they are found to be contrary
to the overall public interest.
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External Decision Safeguards
The above safeguards are basically internal standards or procedures
with which projects are evaluated. There are also a series of external
safeguards which work to maintain objectivity. One is EPA's Section
404 or so called "veto" authority. EPA may prohibit or withdraw the
specifications of any disposal site if the EPA Administrator determines
that discharges into the site will have unacceptable adverse effects on
municipal water supplies, shellfish beds and fishery areas, wildlife,
or recreational areas. This authority also carries with it the
requirement for notice and opportunity for public hearing. EPA may
invoke this authority at any time. An application need not be
pending.
Section 404(q) of the Clean Water Act
requires the Department of the
Army to enter into interagency agreements to minimize duplication,
needless paperwork, and delays in the Section 404 permit process.
Current agreements allow EPA and the Department of Commerce and the
Interior to request higher level review within the Department of the
Army when they disagree with a permit decision which is about to be
made by the district engineer. Higher level review can only be
requested when certain criteria are met and must be conducted within
time limits specified in the agreements. These criteria are
insufficient coordination at the district level, development of
significant new information, or the need for policy level review of
nationally important issues. Honoring such requests is at the
discretion of the Assistant Secretary of the Army for Civil Works.
Individual state permitting and water quality certification
requirements provide an additional form of objective safeguard to the
Corps regulatory program. Section 401 of the Clean Water Act requires
state certification or waiver of certification prior to issuance of a
Section 404 permit.
Section 307 of
the Coastal
Zone Management Act of 1972, as amended (16 U.S.C. 1458(c)),
requires the applicant certify that the project is in
compliance with an approved State Coastal Zone Management Program and
that the State concur with the applicants certification prior to the
issuance of a Corps permit. The Corps' standard permit form contains a
statement notifying the permittee that the Federal permit does not
remove any requirement for state or local permits. This has the effect
of making the Corps' permit unusable without these additional
authorizations. If the state or local permit is denied before the
Corps has made its decision, the Corps permit is also denied.
In addition to these requirements, the Corps' implementing regulations
require that district engineers conduct additional evaluations on
applications with potential for having an effect on a variety of
special interests (e.g., Indian reservation lands, historic properties,
endangered species, and wild and scenic rivers).
Another form of external safeguard, of course, is legal challenge of a
permit decision. As mentioned earlier, there is no mechanism in the
program's regulations for formal administrative appeal nor is there a
legal requirement to conduct a formal adjudicatory hearing. However,
any member of the public, may challenge, in court, a Corps decision to
issue or deny a permit. Generally, such a challenge alleges failure to
comply with procedural requirements, such as NEPA documentation, the
404(b)(1) Guidelines, or the procedures in the Corps permit
regulations.
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Processing Times
On average, individual permit decisions are made within two to three
months from receipt of a complete application. In emergencies,
decisions can be made in a matter of hours. Applications requiring
EISs (far less than one percent) averaging about three years to
process.
Enforcement
Procedures for enforcing Corps permitting authorities are found at
33 CFR Part 326.
The following paragraphs briefly summarize those procedures.
Inspection and surveillance activities are carried out by all means at
the district engineer disposal. Corps of Engineers employees are
instructed on the observation and reporting of suspected unauthorized
activities in waters of the United States and of violations of issued
permits. The assistance of members of the public and other interested
Federal, State and local agencies is encouraged.
When the district engineer becomes aware of any unauthorized activity
still in progress, he must first issue a cease and desist order and
then begin an investigation of the activity to ascertain facts
concerning alleged violations. If the unauthorized activity has been
completed he will advise the responsible party of his discovery and
begin an investigation. Following his evaluation, the district
engineers may formulate recommendations on the appropriate
administrative course or legal action to be taken.
The district engineer's evaluation contains an initial determination of
whether any significant adverse impacts are occurring which would
require expeditious corrective measures to protect life, property, or a
significant public resource. Once that determination is made, such
remedial measures can be administratively ordered and a decision can be
made on whether legal action is necessary. In certain cases, district
engineers, following the issuance of a cease and desist order,
coordinate with state and Federal resource agencies in deciding what
action is appropriate. Further evaluation of the violation takes into
consideration voluntary compliance with a request for remedial action.
A permit is not required for restoration or other remedial action.
For those cases that do not require legal action and for which complete
restoration has not been ordered, the Department of the Army will
accept applications for after-the-fact permits. The full public
interest review is deferred during the early stages of the enforcement
process. A complete public interest review is conducted only if and
when the district engineer accepts an application for an after-the-fact
permit.
The laws that serve as the basis for the Corps regulatory program
contain several enforcement provisions which provide for criminal,
civil, and administrative penalties. While the Corps is solely
responsible for the initiation of appropriate legal actions pursuant to
enforcement provisions relating to its Section 10 authority, the
responsibility for implementing those enforcement provisions relating
to Section 404 is jointly shared by the Corps and EPA. For this reason
Army has signed a Section 404 enforcement memorandum of agreement (MOA)
with EPA to ensure that the most efficient use is made of available
Federal resources. Pursuant to this MOA, the Corps generally assumes
responsibility for enforcement actions with the exception of those
relating to certain specified violations involving unauthorized
activities.
If a legal action is instituted against the person responsible for an
unauthorized activity, an application for an after-the-fact permit
cannot be accepted until final disposition of all judicial proceedings,
including payment of all fees as well as completion of all work ordered
by the court.
Presently about 6,000 alleged violations are processed in Corps
district offices each year. The approximate breakdown by authority is:
Section 10, 15 percent; Section 404, 60 percent; and Section 10/404, 25
percent.
The Corps strives to reduce violations by effective publicity, an
aggressive general permit program. and an efficient and fair
evaluation of individual permit applications.
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