Section 10 of the Rivers and Harbors Act of 1899 requires approval from the U.S. Army Corps of Engineers (USACE) prior to the accomplishment of any work in or over navigable waters of the United States, or which affects the course, location, condition or capacity of such waters. Typical activities requiring Section 10 permits are:
- Construction of piers, docks, wharves, bulkheads, dolphins, marinas, ramps, floats, intake/outfall structures, and cable or pipeline crossings.
- Dredging and excavation
Section 10 Waters within the Albuquerque District
Section 404 of the Clean Water Act requires approval from the USACE prior to discharging dredged or fill material into waters of the United States (U.S.). Typical activities requiring Section 404 permits include, but are not limited to the following:
- Construction of flood control and stormwater management facilities, mining, grading, intake/outfall structures, road crossings, pipelines.
- Construction of boat ramps, docks, piers, shoreline or bank stabilization, and fish habitat.
- Construction of revetments, groins, breakwaters, levees, dams, dikes, drop-structures and weirs.
- Placement of riprap, culverts, and footings.
- In some cases, dredging and other excavation require approval when there is a discharge that results in more than incidental fallback (33 CFR 323.2(d)(1)) of dredged or excavated material.
Activities requiring a permit from the USACE under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899 may be permitted by General Permit or Individual Permit. General permits are issued nationally, regionally or programmatically to authorize categories of activities that would result in minimal individual and cumulative impacts to the aquatic environment. These permits are valid only if the terms and conditions applicable to the permits are met. If the terms and conditions of a general permit cannot be met, or if the Corps determines that the activity would result in more than minimal impacts, an individual permit would be required.
There are three types of general permits: Nationwide Permits, Regional General Permits, and Programmatic General Permits. Currently the Albuquerque District does not have any Programmatic General Permits. The basic form of authorization is the Individual Permit. Individual permits involve evaluation of individual, project-specific applications. Individual permits are required for authorization of projects that result in more than minimal impacts to the aquatic environment. There are two types of permits: Standard Individual Permits and Letters of Permission. Standard Individual Permits require a public notice and agency coordination. Permitting elements may include coordination/consultation, mitigation and appeals.
Exempted Activities
There are a few activities which involve the placement of fill in a waterway that are not subject to the Section 404 regulatory progaram. However, the fill must not change the use of the water and the flow must not be impaired. These exempted activities are breifly described below, and located in the regulations at 33 CFR 323.4.
1. Normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage and harvesting.
2. Maintenance or emergency repair of a currently serviceable structure such as dams, riprap, abutments, and levees. The orginal design may not be changed.
3. Maintenance or construction of stock ponds or irrigation ditches. Maintenance (not construction) of drainage ditches. Discharges associated with irrigation facilities are included.
4. Construction of temporary sedimentation basins at construction sites if fill material is not placed in waters of the United States.
5. Activities for which a state has an approved program under Section 208 of the Clean Water Act for non-point pollution sources.
6. Construction or maintenance of farm roads, forest roads, or temporary mining roads. Best management practices must be followed to reduce flow pattern impairment and aquatic impacts (see regualtions for more information).
Who Should Obtain a Permit?
Any person, firm, or agency (including Federal, state, tribal and local governmental agencies) planning to work in waters of the United States should first contact the USACE regarding the need to obtain a permit from the Regulatory Division. Permits, licenses, variances, or similar authorization may also be required by other Federal, state and local statutes. The necessary permits are required even when land next to or under the water is privately owned.
Both the property owner and contractor may be held liable for violation of Federal law if work begins before permits have been obtained. Penalties for proceeding with work without a permit issued by the USACE may include:
- Removal of work and restoration of area;
- Administrative penalties of up to $25,000 per day for each violation;
- A fine of up to $50,000 per day for each violation; and
- Up to three years in prison
How to Obtain a Permit:
Section 401 Water Quality Certification (WQC) is required for all Section 404 General and Individual Permits. WQC is administered by state agencies, tribes or the Environmental Protection Agency (EPA). There are different WQC requirements depending on the state or tribal land where the project is located.
Nationwide Permits: Follow General Condition 27 Pre-Construction Notification (PCN) procedures to apply for authorization under a Nationwide Permit (NWP). Also follow the Albuquerque District Nationwide Permit Checklist.
Regional General Permits: Follow the PCN procedures outlined in the particular RGP. WQC has been issued by the State of Texas for all current RGPs available in that state. Colorado is certified by Code of Colorado Regulation No. 82 for all current RGPs available in that state. For New Mexico, the terms and condtions of WQC is dependent on the specific RGP, which are included in the permit itself.
Standard Individual Permits: Complete an application form following the instructions attached to the form. Also follow the Albuquerque District Checklist of Complete Application Information. When applying for authorization under a standard individual permit the applicant must obtain Individual WQC from the appropriate state agency or tribe with regulatory authority, or EPA in the project area. An application must also include a statement describing how impacts to waters of the U.S. will be avoided and minimized. The application must include either a statement describing how impacts to waters of the U.S. will be compensated for or a statement explaining why compensatory mitigation should not be required for the proposed impacts. (33 CFR 325.1)
Mitigation: For individual permits, an application must include a statement describing how impacts to waters of the U.S. will be avoided and minimized. The application must include either a statement describing how impacts to waters of the U.S. will be compensated for or a statement explaining why compensatory mitigation should not be required for the proposed impacts. The permittee must prepare a draft mitigation plan and submit it for review. A final mitigation plan must be submitted to and approved by the USACE before an individual permit can be issued. For general permits, if compensatory mitigation is required, the USACE may approve a conceptual or detailed mitigation plan but a final mitigation plan must be approved before the permittee commences work in waters of the U.S.
Emergency Authorizations
The Division Engineer of South Pacific Division issued permitting procedures for emergency situations that require immediate authorization within the Albuquerque, Los Angeles, Sacramento, and San Francisco Districts. An emergency is defined as a situation that would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures (33 CFR 325.2). In the case of an emergency where authorization from the USACE is required, contact the local district office in your area as soon as possible.
Permit Fees
General Permits and Letters of Permission do not require fees. Fees for Standard Individual Permits are assessed according to the proposed use. For example, the fee for work to be done for commercial and industrial use is $100, for private or noncommercial use, the fee is $10. The applicant will be notified of the required fee. No fee is required for Federal, state, or local government agencies. Fees are due when the permit decision is initially proferred to the applicant. Permit fees are subject to future changes.
Letters of Permission: The Albuquerque District has two Letters of Permission available, which only authorize projects located in the State of Texas. Follow the application procedures outlined in the particular Letter of Permission. WQC has been issued by the State of Texas for both Letters of Permission.
Project proponents are encouraged to contact the USACE as early as possible to determine notification requirements. If a permit is required a pre-application consultation may be beneficial. Pre-application consultations are most beneficial when a standard permit is required and typically involve reviewing preliminary plans, discussing alternatives, discussing potential issues that may occur during the permitting process, providing guidance, and discussing mitigation. Consultations may occur via phone call, e-mail, or on-site or off-site meeting. It is not always necessary to conduct consultation meetings.