Do I Need a Permit?

Photo by Jeremy Morgan

To determine if a permit from the USACE Regulatory Program is required, you must consider the type of activity, as well as the location.

Any person, firm, or agency (including federal, state, territorial, and local governmental agencies) planning to work in Waters of the United States (WOTUS) should contact USACE regarding the need to obtain a permit from the Department of Army (DA). Permits, licenses, variances, or similar authorization may also be required by other federal, state, territorial and local statutes. The necessary permits are required even when land next to or under the water is privately owned. The issuance of a DA permit does not obviate the need to obtain other necessary authorizations.

To request information regarding WOTUS on your property, visit our Jurisdictional Determinations page. For guidance on how to apply for a permit, visit our How to Apply page.

1. Work occurring in, over, or under navigable waters of the United States (regulated under Section 10 of the Rivers and Harbors Act of 1899). For instance, projects that involve placing utility lines or fiber optic cables underneath a navigable water would require a Department of the Army (DA) authorization. Navigable waters include those waters subject to the ebb and flow of the tide shoreward to the mean high water mark and/or those waters that are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Please note that many coastal rivers may be tidally influenced.
2. Work that results in a discharge of dredged or fill material into waters of the United States, which may include certain wetlands, streams, rivers, lakes, and impoundments (regulated under Section 404 of the Clean Water Act (CWA) of 1972). This can involve placing fill, placing dredged material, grading an area, side-casting material, or pushing material around within aquatic resources. A jurisdictional determination may be requested to assess whether the proposed work is located within an aquatic resource that is jurisdictional. View more information on jurisdictional determinations
3. Projects that involve the transportation of dredged material for the purpose of disposal in the ocean (regulated under Section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972).

Please note: This is not a complete list of examples of work needing a permit.

1. Construction/installation of piers, docks, wharves, bulkheads, dolphins, marinas, ramps, floats, scientific instruments/devices, mooring buoys, intake/outfall structures, and cable or pipeline crossings
2. Dredging and excavation
3. Construction of flood control and stormwater management facilities, mining, grading, intake/outfall structures, road crossings, pipelines
4. Construction of boat ramps, docks, piers, shoreline or bank stabilization, and fish habitat
5. Construction of revetments, groins, breakwaters, levees, dams, dikes, drop-structures and weirs
6. Placement of riprap, culverts, and footings
7. Residential/commercial/industrial construction, including foundations, yards, utility line installation, driveways, parking areas, access roads and septic systems when impacting WOTUS
8. Dredging and other excavation where the discharge results in more than incidental fallback (33 CFR 323.2(d)(1)) of dredged or excavated material
9. Geotechnical surveys

1. 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 avoid wetlands and other waterbodies.
2. In the vicinity of freshwater, stay above the ordinary high water mark and avoid wetlands adjacent to the stream or lake.
   See Jurisdictional Diagram
3. In non-navigable waters only regulated under Section 404 of the Clean Water Act you may be able to eliminate the need for a permit by using excavation only construction methods. This involves directly excavating material from aquatic resources and disposing of the material in uplands without placing the material for any amount of time in aquatic resources (e.g., wetlands, streams, lakes). If you grade material, push material, and/or temporarily side-cast material in aquatic resources then that is not excavation only construction and a permit may be required.
4. If complete avoidance is not possible, design your project to meet the requirements of a general permit, which will simplify the permitting process. Contact USACE to schedule a pre-application meeting to obtain information on permitting and exemptions.

There are several permit exemptions under the Clean Water Act for certain activities that involve the discharge of dredged or fill material into waters of the U.S. In order to qualify for the exemptions listed below the following two criteria must first be met: (1) The discharge of dredged or fill material must not contain any toxic pollutant listed under Section 307 of the CWA, (2) The discharged material must not be part of an activity whose purpose is to convert an area of waters of the U.S. into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration. If these two criteria are not met, then the project is not eligible for an exemption and a Section 404 permit will be required.

To avoid a potential violation, please contact your local USACE Office to help you determine if your project is exempt before you perform any work. If we determine that your project is exempt, we will provide you written documentation verifying that the work is exempt. Certain exemptions have specific criteria and require best management practices that must be followed. The following is a list summarizing the exemptions available under the Clean Water Act (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. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption.
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 33 CFR 323.4 for more information).

*Please note that these exemptions only apply to certain activities occurring in waters of the U.S. under the Clean Water Act. If your construction work will occur within a Section 10 Navigable Water, then you will still need a Section 10 permit authorization under the Rivers and Harbors Act of 1899. The Rivers and Harbors Act is a separate law and does not have any exemptions.

Please reference the Jurisdictional Determinations page for more information on WOTUS jurisdictional to the Corps of Engineers, the Frequently Asked Questions page and/or please contact us if you have additional questions on whether or not your work requires a permit.

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