Regulatory Branch

Our Mission

The primary goal of the Corps regulatory program is to protect the nation's aquatic resources. This is accomplished through the issuance of permits for projects that have undergone careful evaluation in light of applicable laws, regulations and policy to insure that no action authorized by our program will have an adverse impact on the overall public welfare. It is our mission to provide strong protection of the Nation's aquatic environment, including wetlands; to enhance the efficiency of the Corps administration of its regulatory program; and, to ensure that the Corps provides the regulated public with fair and reasonable decisions.

Protecting our nation's aquatic environment.	Protecting public wetlands.

Regulatory Branch
Building 230, Fort Shafter, HI 96858-5440
(808) 438-9258
CEPOH-EC-R@usace.army.mil

Wetlands are areas that are periodically or permanently inundated by surface or ground water and support vegetation adapted for life in saturated soil.

The Corps derives it regulatory authority over waters of the United States from the two Federal laws that are central to the Corps regulatory program. Section 10 of the Rivers and Harbors Act of 1899 applies to all navigable waters of the United States and Section 404 of the Clean Water Act applies to all waters including wetlands that have sufficient nexus to interstate commerce. Waters of the United States include essentially all surface waters such as all navigable waters and their tributaries, all interstate waters and their tributaries, all wetlands adjacent to these waters, and all impoundments of these waters.

Determinations of Non-Jurisdiction for Isolated Waters

The Supreme Court's 2001 decision in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers overturned the Corps' assertion of federal jurisdiction over certain isolated wetlands based on the presence of migratory birds. EPA and the Corps responded by issuing revised guidance to their field offices. At the same time, the Agencies reaffirmed federal jurisdiction over the majority of wetlands not impacted by the decision.

In order to provide the most efficient service to the regulated community, the Honolulu District recommends that applicants hire a recognized environmental consultant to perform a preliminary determination of jurisdiction. This applies to not only wetlands, but any feature that may fall under the definition of a water of the U.S. as described above. The Corps will then verify that the delineation is accurate and provide an approved jurisdictional determination. Jurisdictional determinations are generally valid for a period of five years, as site conditions and policies can change. An interested party can request an updated determination at any time.

• Clean Water Act Guidance to Implement the U.S. Supreme Court Decision for the Rapanos and Carabell Cases

Rivers & Harbors Act 1899 § 10
Section 10 of the Rivers and Harbors Act of 1899 requires approval 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, wharves, bulkheads, dolphins, marinas, ramps, floats, intake structures, and cable or pipeline crossings.
• Dredging and excavation
• Artificial reefs

Clean Water Act - § 401 and § 404
Section 401 of the Clean Water Act requires that any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates that any such discharge will comply with the applicable provisions of the Clean Water Act.

Section 404 of the Clean Water Act requires approval prior to discharging dredged or fill material into the waters of the United States.

• Deposition (placement) of fill or dredged material in waters of the U.S. or adjacent wetlands.
• Site-development fill for residential, commercial, or recreational developments.
• Construction of revetments, groins, breakwaters, levees, dams, dikes, and weirs.
• Placement of riprap and road fills.

Coastal Zone Management Act - § 307
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.

Endangered Species Act - § 7
Section 7 of the Endangered Species Act of 1973 (ESA) requires Federal agencies to ensure that any action authorized, funded or carried out by them is not likely to jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of their critical habitat. Section 7 outlines the process for interagency coordination by which the Corps consults with the United States Fish and Wildlife Service (USFWS) and/or NOAA Fisheries on a proposed project's potential to affect listed species.

National Historic Preservation Act - § 106
Section 106 of the National Historic Preservation Act (NHPA) requires that the head of any Federal department, in this case, the Corps, having authority to license any undertaking shall, prior to the issuance of any authorization, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. Under Section 106 of the NHPA, the Corps is required to consult with the State Historic Preservation Officer (an official appointed in each State or territory to administer the National Historic Program) in order to determine a project's potential to impact resources of historic or cultural significance.

Types of Permits

Individual Permits
An Individual Permit is a type of Department of the Army authorization that has undergone a full public interest review. This includes a 30-day public notice period in which a copy of the permit drawings and a description of the project are forwarded to all interested parties, adjacent property owners, and the State and Federal agencies for review and comment. Processing time for these types of permits is usually 60 to 120 days from the receipt of a complete application for non-controversial projects. Controversial or larger projects, including those that require a public hearing or an Environmental Impact Statement (EIS), will generally take longer.

Letters of Permission
The Letter of Permission (LOP) is a type of individual permit used in cases where the proposed project involves a lesser degree of impact to aquatic resources. The LOP involves a 30-day comment period or a 15-day comment period in cases where the proposed impacts are minor and non-controversial. State and Federal agencies and the adjacent property owners are provided a project description and a copy of project plans. A final decision on the LOP permit application is usually reached 45 to 60 days from the date a complete application is received by the Corps' office.

Nationwide Permits
Nationwide permits are general permits issued nationwide to authorize categories of minor activities. The Honolulu District has developed Regional Conditions in order to provide additional protection for the aquatic environment within the Pacific region. All persons wishing to perform work under the nationwide permits must provide written notification to the Corps prior to the start of work. The Regional Conditions provide a list of the information necessary to submit a complete Pre-construction Notification (PCN). After a review of the project, the Corps will issue a verification letter pursuant to the applicable Nationwide Permit(s).

Regional General Permits
Regional General Permits are used to authorize activities that cause only minimal individual and cumulative environmental impacts. Regional general permits are developed by individual districts to streamline project review by minimizing duplication of other federal, state and local review processes, while still protecting aquatic resources. Regional general permits may be restricted for use in areas as small as a single residential development, a county, a region of the state or the entire district.

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. An emergency is a situation which 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.

Applications requiring review of endangered species, completion of an Environmental Impact Statement or those experiencing other complications will have a longer processing time. Complicating factors may include an incomplete permit application, changes in the proposed project during the evaluation process, substantial public opposition, or court decisions which alter current case law.

Since two to three months is normally required to process a routine application involving a public notice, you should apply as early as possible to be sure you have all required approvals before your planned commencement date.

For a large or complex activity that may take longer, it is often helpful to have a pre-application consultation or informal meeting with the Corps during the early planning phase of your project. You may receive helpful information at this point which could prevent delays later.

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 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.

In its project evaluation process, the Corps must balance the project purpose against the public interest, as required by the National Environmental Policy Act (NEPA) of 1969. 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.

To aid applicants in submitting a complete application, Honolulu District has developed a questionnaire to supplement the application form. Application packages can be mailed directly to our offices in Honolulu or Guam.

Federal, state and local agencies often have regulatory jurisdiction over the same projects the Corps regulates. The Corps works closely with applicable agencies to provide a consistent, coordinated review of projects.

The purpose of this Part is to establish policies and procedures to be used for the administrative appeal of permit applications denied with prejudice, and for the administrative appeals of declined individual permits. The appeal process will allow the affected party to pursue an administrative appeal of certain final Corps of Engineers decision with which they disagree. The basis for an appeal, and the specific policies and procedures are described in detail at the "33 CFR Part 331 - Appeals Process" link to the right. It is the policy of the Corps of Engineers to promote and maintain an administrative appeal process that is independent, objective, fair, prompt, and efficient.

The Corps reviews each project application for its potential to adversely impact aquatic resources.  On June 10, 2008, the Final Rule for Compensatory Mitigation for Losses to Aquatic Resources (the Mitigation Rule) went into effect.  The Mitigation Rule clarifies what must be considered and what information is required when developing compensatory mitigation for unavoidable impacts to the nation’s aquatic resources, including wetlands, streams, and ocean waters.  When mitigation is required remains unchanged.  The Mitigation Rule also stresses that impacts must be avoided and minimized, in that order, prior to the development of a compensatory mitigation plan to offset permitted impacts.

***Each permit application must contain a statement on how the project avoids, minimizes, and compensates for proposed adverse impacts to aquatic resources***

In addition to the Rule, projects that require the discharge of dredged or fill material into waters of the U.S. as regulated under Section 404 of the Clean Water Act, must comply with the Section 404(b)(1) Guidelines (Guidelines).  The Guidelines only allow the Corps to authorize the least environmentally damaging practicable alternative to achieving the project purpose. 

Links to the Mitigation Rule and the Guidelines can be found in the column to the right.

Enforcement

Involvement
When a project receives a permit from the Corps of Engineers, it will be conditioned to allow representatives from the Corps of Engineers to inspect the authorized activity and any mitigation, preservation, or avoidance areas at any time deemed necessary to ensure that the project meets the terms and conditions of the permit. In addition to site inspections conducted by its staff, the Corps relies on members of the public and representatives of state, local, and other Federal agencies to report suspected violations.

The Corps is required to take steps to investigate suspected violations in a timely manner. The scheduling of investigations will reflect the nature and location of the suspected violations, the anticipated impacts, and the most effective use of inspection resources available.

Activities performed without required Department of the Army permits and activities not in compliance with the terms and conditions of issued Department of the Army permits are subject to enforcement action by the Corps of Engineers. See the complete text of 33 CFR Part 326 regarding enforcement.

Violations
If you suspect a violation please contact us. Violators may be subject to penalties, including fines up to $25,000 per day of violation, and/or orders to remove unauthorized fill and to restore the area to pre-project conditions. For unauthorized work conducted under the RHA, criminal penalties may be imposed up to $100,000 in fines and up to one year imprisonment or both. Injunctive relief, including restoration, is also available. Further, knowing violations of Section 404 may be referred to the U.S. Environmental Protection Agency for enforcement action.

Regulatory Branch
Building 230, Fort Shafter, HI 96858-5440
(808) 438-9258
CEPOH-EC-R@usace.army.mil