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Section 10 of the Rivers and Harbors Act of 1899 requires approval prior to the accomplishment of any work in, over, or under navigable waters of the United States, or which affects the course, location, condition or capacity of such waters.
Navigable waters of the United States (33 CFR Part 329) are defined as waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate or foreign commerce up to the head of navigation. Section 10 and/or Section 404 permits are required for construction activities in these waters.
Typical activities requiring Section 10 permits include:
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Construction of piers, wharves, breakwaters, bulkheads, jetties, weirs, dolphins, marinas, ramps, floats, intake structures, and cable or pipeline crossings.
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Installation of overhead utilities across navigable waters or installation of underground utility lines beneath navigable waters.
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Work such as dredging or disposal of dredged material.
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Excavation, filling, or other modifications to navigable waters of the U.S.
Section 404 of the Clean Water Act requires approval prior to discharging dredged or fill material into the waters of the United States.
Waters of the United States (33 CFR Part 328) include essentially all surface waters, including all navigable waters and their tributaries, all interstate waters and their tributaries, all impoundments of these waters, all wetlands adjacent to these waters, and certain isolated wetlands.
The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include tundra, permafrost areas, swamps, marshes, bogs, and similar areas.
How to Recognize a Wetland is a brochure containing more information on wetland identification.
The 1987 Wetlands Delineation Manual is the technical resource used to delineate wetlands and specifies the criteria for an area to be classified as a wetland.
Typical activities requiring Section 404 permits include:
- Discharging fill or dredged material in waters of the U.S., including 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.
Discharges of fill may include grading or other earthwork into streams or wetlands, construction of temporary access ramps, equipment pads, or temporary containment berms.
Certain activities are exempt (33 CFR 323.4) from Section 404 permit requirements.
Section 103 of the Marine Protection Research and Sanctuaries Act requires approval for the transportation of dredged material for the purpose of dumping it in ocean waters at disposal sites previously approved by the U.S. Environmental Protection Agency. Any person, firm, or agency (including Federal, state, and local government agencies) planning to work in navigable waters of the United States, or discharge (dump, place, deposit) dredged or fill material in waters of the United States, including wetlands, must first obtain a permit from the Corps of Engineers. Permits, licenses, variances, or similar authorization may also be required by other Federal, state and local statutes. There are generally two types of activities which require a permit from the Corps of Engineers. The first includes activities within navigable waters. Activities such as dredging, construction of docks and bulkheads and placing navigation aids require review under Section 10 of the Rivers and Harbors Act of 1899 to ensure that they will not cause an obstruction to navigation. The second part of the program, Section 404 of the Clean Water Act of 1972 regulates placement of fill in waters of the US. Common activities that involve the placement of fill include installation of culverts and stream crossings, or construction of stream bank protection. The Corps of Engineers issues the following types of permits: Letters of Permission, Nationwide Permits, General or Regional Permits and Individual Permits. For more information on these permit types click here. There is no fee required at the time a permit application must be submitted. Most permits issued by the Corps of Engineers such as Letters of Permission, Nationwide, and General Permits do not have a permit fee. Individual Permits have fees of $10 for individuals and $100 for businesses, once the permit has been issued and accepted by the permittee. There are no fees charged to other governmental agencies. 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 about avoiding and minimizing impacts at this point which could prevent delays later. When in doubt as to whether a permit may be required or what you need to do, don't hesitate to call a district regulatory office. It is possible you may not have to obtain an individual permit, depending on the type or location of work. The Corps has many general permits which have minimal or abbreviated review times and authorize minor activities without the need for individual processing. Check with your Corps district regulatory office for information on general permits. More information can be found here. When a general permit does not apply, you may still be required to obtain an individual permit. Performing unauthorized work in waters of the United States or failure to comply with the terms of a valid permit can have serious consequences. You would be in violation of Federal law and could face stiff penalties, including fines and/or requirements to restore the area.
Enforcement is an important part of the Corps regulatory program. Corps surveillance and monitoring activities are often aided by various agencies, groups, and individuals, who report suspected violations. When in doubt as to whether a planned activity needs a permit, contact the nearest district regulatory office. It could save a lot of unnecessary trouble later. Information about the Regulatory Program is available from any Corps district regulatory office. You can find the contact information for your local Corps office here. Nationwide, only three percent of all requests for permits are denied. Those few applicants who have been denied permits usually have refused to change the design, timing, or location of the proposed activity. When a permit is denied, an applicant may redesign the project and submit a new application. To avoid unnecessary delays pre-application conferences, particularly for applications for major activities, are recommended. The Corps will endeavor to give you helpful information, including factors which will be considered during the public interest review, and alternatives to consider that may prove to be useful in designing a project. Wetlands are areas that are periodically or permanently inundated by surface or ground water and support vegetation adapted for life in saturated soil. Wetlands include swamps, marshes, bogs and similar areas. A significant natural resource, wetlands serve important functions relating to fish and wildlife; food chain production; habitat; nesting; spawning; rearing and resting sites for aquatic and land species; protection of other areas from wave action and erosion; storage areas for storm and flood waters; natural recharge areas where ground and surface water are interconnected; and natural water filtration and purification functions.
Although individual alterations of wetlands may constitute a minor change, the cumulative effect of numerous changes often results in major damage to wetland resources. The review of applications for alteration of wetlands will include consideration of whether the proposed activity is dependent upon being located in an aquatic environment.
For more information on wetlands, see the 1987 Wetland Delineation Manual or the brochure How to Recognize a Wetland. If your activity is located in an area of tidal waters, the best way to avoid the need for a permit is to select a site that is above the high tide line and avoids wetlands or other waterbodies. In the vicinity of fresh water, stay above ordinary high water mark and avoid wetlands adjacent to the stream or lake. Also, it is possible that your activity is exempt and does not need a Corps permit or that it has been authorized by a nationwide or regional general permit. So, before you build, dredge or fill, contact the Corps district regulatory office in your area for specific information about location, exemptions, and regional and nationwide general permits. The Corps has been involved in regulating activities by others in navigable waterways through the granting of permits since passage of the Rivers & Harbors Act (Section 10) of 1899. At first, this program was meant to prevent obstructions to navigation, although an early 20th century law gave us regulatory authority over the dumping of trash and sewage. Passage of the Clean Water Act (Section 404) in 1972 greatly broadened this role by giving the Corps authority over dredging and filling in the "waters of the United States," including many streams and wetlands.
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