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 of the 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are the Rivers and Harbors Acts of 1890 (superseded) and 1899 (33 U.S.C.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.
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. 1333 (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. The definition of "waters of
the United States" can be found at 33
CFR Part 328.
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.
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 320-330). 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
320-330) 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. See the Appeals
Section for additional information.
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.
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:
1. the relevant extent of public and
private needs;
2. where unresolved conflicts of
resource use exist, the practicability of using reasonable alternative
locations and methods to accomplish project purposes; and
3. 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.
Alternate Forms
of Department of the Army Permits
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 "Nationwide
Permits".
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.
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.
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 (c), 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. 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. For
additional information see Appeals Section.
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.