Frequently Asked Questions (FAQ)

The USACE Regulatory Division has been involved in regulating activities in navigable waterways through the granting of permits since the passage of the Rivers & Harbors Act of 1899. This program was meant to prevent obstructions to navigation (Section 10, but also included provisions to regulate dams and dikes (Section 9) and refuse disposal (Section 13). Passage of the Clean Water Act (Section 404) in 1972 broadened this role by giving the USACE Regulatory Division the responsibility for regulating the discharge of dredged or fill material into “waters of the United States,” including certain wetlands.

The USACE Regulatory Division issues the following types of permits: Letters of Permission, Nationwide Permits, General or Regional Permits, and Individual Permits. More information regarding these permits can be found on our Permit Types page.

Most permits issued by the USACE Regulatory Division such as Letters of Permission (LOP), Nationwide Permits (NWPs), and Regional General Permits (RGPs) do not have a permit fee. Individual Permits (IPs) have fees of $10 for individuals for non-commercial activities and $100 for commercial or industrial activities. There are no fees charged to other governmental agencies. Permit fees are only collected once the permit has been issued and accepted by the permittee. Applicants are now able to pay Department of the Army permit fees online at pay.gov instead of writing and mailing a check. This convenient option allows for multiple payment methods (bank account, Amazon account, PayPal, debit or credit card).

You should apply as early as possible during the conceptual stage of the project. Two to four months is normally required to evaluate a routine application involving a public notice. You must have the required approvals before you begin any work. For a large or complex activity, a pre-application meeting or an informal consultation with the USACE Regulatory Division during the early planning phase of your project is recommended. You may receive useful information at this point which could prevent delays later. When in doubt about the requirement for a permit or what you need to do, don’t hesitate to call the local USACE Regulatory Division office.

You should apply as early as possible during the conceptual stage of the project. Two to four months is normally required to evaluate a routine application involving a public notice. You must have the required approvals before you begin any work.

For a large or complex activity, a pre-application meeting or an informal consultation with the USACE Regulatory Division during the early planning phase of your project is recommended. You may receive useful information at this point which could prevent delays later. When in doubt about the requirement for a permit or what you need to do, don’t hesitate to call the local USACE Regulatory Division office.

Performing unauthorized work in waters of the United States or failure to comply with terms and conditions of your permit can have serious consequences. You would be in violation of Federal law and could face penalties including fines, requirements to restore the area, or both. Enforcement is an important part of the USACE Regulatory Division regulatory program. The USACE Regulatory Division works with State and Local agencies to monitor their permit programs and to expedite the permit review process where possible. When in doubt about whether a planned activity needs a permit, contact USACE or visit us online.

Yes, the USACE Regulatory Division has authority to determine if an activity complies with the terms and conditions of an issued permit. The USACE Regulatory Division may reach out from the time of issuance and up to five years after the permit issuance to ensure the project is completed according to the permit terms and conditions. Compliance checks occur every year but may vary by location due to staffing and budget. Each permittee who receives a verification letter from the USACE Regulatory Division must provide a signed certification documenting completion of the authorized activity and implementation of any required compensatory mitigation. The success of any required permittee-responsible mitigation, including the achievement of ecological performance standards, will be addressed separately by the district engineer. The USACE Regulatory Division will provide the permittee the certification document with their verification letter. The project is still subject to the USACE Regulatory Division completing an in-person compliance inspection after submitting any self-certifications. If a project is found to be not in compliance, the USACE Regulatory Division will reach out with further guidance on corrective measures.

Nationwide, only a small percentage 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 to address environmental concerns. The USACE Regulatory Division will try to give you helpful information, including the factors it evaluates during the public interest review as well as alternatives to consider that may prove to be useful in designing an acceptable project.

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 or other waterbodies. See jurisdiction diagram here.

In the vicinity of fresh water, stay above ordinary high water and avoid wetlands adjacent to the stream or lake. See jurisdiction diagram here.

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, or temporarily side-cast material in aquatic resources then that is not excavation-only construction, and a permit may be required. If complete avoidance is not possible, design your project to meet the requirements of a general permit, which will simplify the permitting process. Contact us to schedule a pre-application meeting to obtain information on permitting and potential exemptions.

The USACE Regulatory Division's definition of an emergency is:

• an unacceptable hazard to life;
• a significant loss of site/property; or
• an immediate, unforeseen, and significant economic hardship.

The USACE Regulatory Division has the responsibility to determine if the proposed work is consistent with our definition of an emergency, whether authorization is needed, and if so, which type of authorization is required. These determinations are made on a case-by-case basis. Emergency declarations by the state or a county government may not mean all projects within the area qualify for emergency permitting procedures.

You are encouraged to notify us of the need to perform emergency work before taking any action. Call the USACE Regulatory Division as soon as possible to discuss the situation. Be prepared to discuss the project location and what in-water work you propose.

All permit reviews, including emergency reviews, require coordination with tribes, state, and federal agencies. In an emergency, reasonable effort will be made to take into consideration comments received from interest groups and others who may be affected by the action. You may need to conduct a wetland delineation, cultural resource investigations, sediment evaluation, or other preparatory work when applying for authorization from USACE Regulatory Division.

In many instances within the Honolulu District, work that is emergency in nature can be covered under a Nationwide Permit verification.

Waters of the United States is a threshold term in the Clean Water Act and establishes the geographic scope of federal jurisdiction under the Act. Clean Water Act programs, including Water Quality Standards, TMDLs, and sections 311, 402, and 404 address navigable waters, defined in the statute as the waters of the United States, including the territorial seas. The Clean Water Act does not define waters of the United States; rather, it provides authority for EPA and the U.S. Department of the Army to define waters of the United States in regulations, which can be found at section 40 CFR 230.3(s) of the Clean Water Act, as well as at 33 CFR Part 328. Multiple Supreme Court decisions have modified the definition of waters of the United States. Please see the EPA webpage for the most up-to-date guidance on the definition. If you are not sure if waters on your site/property are jurisdictional, contact us to discuss our jurisdictional determination review process.

The term “fill" refers to material placed in waters of the U.S. (WOTUS) in which the material has the effect of:

• Replacing any portion of a WOTUS with dry land; or
• Changing the bottom elevation of any portion of a WOTUS

Examples of such fill material can include, but are not limited to rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the waters of the United States.

The identification and location of jurisdictional Waters of the United States including wetlands regulated by the USACE Regulatory Division under Section 404 of the Clean Water Act and Sections 9 and 10 of the Rivers and Harbors Act is determined through a process known as a Jurisdictional Determination (JD). The USACE Regulatory Division uses a multi-parameter approach defined in Technical Report Y-87-1, Corps of Engineers Wetlands Delineation Manual, dated January 1987, and supplemental guidance when making wetland determinations. It generally requires positive evidence of hydrophytic vegetation, hydric soils, and wetlands hydrology for some portion of the growing season for a determination that an area is a federally regulated wetland.

There are two types of Jurisdictional Determinations (JDs) that can be requested. Preliminary JDs (PJDs) are advisory in nature and may not be appealed. A landowner, permit applicant, or other “affected party” may elect to use a PJD to voluntarily waive or set aside questions regarding Clean Water Act/Rivers and Harbors Act jurisdiction over a particular site, usually in the interest of allowing the landowner or other “affected party” to move ahead expeditiously to obtain a USACE Regulatory Division permit authorization where the party determines that is in his or her best interest to do so.

An Approved JD (AJD) is an official Corps determination that jurisdictional waters of the United States are either present or absent on a particular site. An AJD is valid for five years and can be appealed through the USACE Regulatory Division administrative appeal process set out at 33 CFR Part 331.

The objective of the Clean Water Act (CWA) is to restore and maintain the chemical, physical, and biological integrity of the Nations waters. When there is a proposed discharge, all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources. For unavoidable impacts that result in adverse effects, compensatory mitigation may be required to replace the loss of wetland, stream, and/or other aquatic resource functions. The USACE Regulatory Division (or approved state authority) is responsible for determining the appropriate form and amount of compensatory mitigation required. Methods of providing compensatory mitigation include aquatic resource restoration, establishment, enhancement, and preservation.

Compensatory mitigation is typically accomplished through the following three ways:

1. Mitigation Banks: A permit applicant may obtain credits from a mitigation bank. A mitigation bank is a wetland, stream or other aquatic resource area that has been restored, established, enhanced, or preserved. This resource area is then set aside to compensate for future impacts to aquatic resources resulting from permitted activities. The value of a bank is determined by quantifying the aquatic resource functions restored, established, enhanced, and/or preserved in terms of credits. Permittees, upon approval of regulatory agencies, can acquire these credits to meet their requirements for compensatory mitigation.


2. In-Lieu Fee Mitigation: A permit applicant may make a payment to an in-lieu fee program that will conduct wetland, stream or other aquatic resource restoration, creation, enhancement, or preservation activities. In-lieu fee programs are generally administered by government agencies or non-profit organizations that have established an agreement with the regulatory agencies to use in-lieu fee payments collected from permit applicants for approved mitigation projects.


3. Permittee-Responsible Mitigation: A permittee may be required to provide compensatory mitigation through an aquatic resource restoration, establishment, enhancement and/or preservation activity. This compensatory mitigation may be provided at, or adjacent to, the impact site (i.e., on-site mitigation) or at another location, usually within the same watershed as the permitted impact (i.e., off-site mitigation). The permittee retains responsibility for the implementation and success of the mitigation project.

Mitigation banks and in-lieu fee mitigation are forms of third-party compensation because a third party, the bank or in-lieu fee sponsor, assumes responsibility from the permittee for the implementation and success of the compensatory mitigation.

There are currently no mitigation banks or in-lieu fee mitigation programs within the Honolulu District area of responsibility.

The project will be reviewed, balancing the need and expected benefits against the probable impacts of the work, taking into consideration all comments received and other relevant factors.

Permit Evaluation Factors

Regulatory Program Mission: The mission of the U.S. Army Corps of Engineers’ Regulatory Division offices is to protect the nation’s aquatic resources, while allowing reasonable development through fair, flexible and balanced permit decisions. The USACE Regulatory Division’s permit application process gives applicants the opportunity to demonstrate that they have avoided and minimized impacts to waters of the United States as much as possible.

During the permit process, the USACE Regulatory Division considers the views of other federal, state and local agencies, Native American tribes, interest groups, and the general public. The results of this careful public interest review are fair and equitable decisions that allow reasonable use of private property, infrastructure development, and growth of the economy, while offsetting the authorized impacts to the waters of the United States. The USACE Regulatory Division strives to make its permit decisions in a timely manner.

The following general criteria will be considered in the evaluation of every application:

• the relative extent of the public and private need for the proposed activity;
• the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed activity;
• the extent and permanence of the beneficial and/or detrimental effects which the proposed activity is likely to have on the public and private uses to which the area is suited.

Benefits and detriments are balanced by considering effects on:

• Aesthetics
• Floodplain Values
• Recreation
• Conservation
• Food and Fiber Production
• Safety
• Consideration of Property Ownership
• General Environmental Concerns
• Shoreline Erosion and Accretion
• Economics
• Historic Properties
• Water Quality
• Energy Needs
• Land Use
• Water Supply and Conservation
• Fish and Wildlife Values
• Mineral Needs
• Wetlands
• Flood Hazards
• Navigation Needs and Welfare of the People

As part of our community outreach mission, the USACE, Regulatory Division, Honolulu District provides in-person and virtual Regulatory 101 presentations with the aim to promote understanding of wetland functions, permitting, and other Regulatory topics. If there is interest in the Corps coming to an event to talk about the Regulatory program, please reach out to our general inbox with questions and requests.

The Honolulu District has two offices where you can meet with us to discuss project plans, submit permit application material, and/or to ask general questions:

• The Honolulu District Regulatory Branch Office is located in Building 252 on Fort Shafter on the Island of Oahu. The office is typically open daily from 8 a.m. to 4 p.m. but may be closed due to staff availability (holidays, training, etc.). To confirm staff will be present, please contact us at (808) 835-4303. We can provide additional instructions on accessing Fort Shafter at that time.
• Our Guam Field Office is located on the Apra Harbor Naval Complex. Please contact us at (671) 339-2108 to coordinate a meeting time.

FOIA 5 U.S.C. § 552 is a mechanism by which members of the general public can obtain copies of government records. Any “person” can file a FOIA request including U.S. citizens, foreign nationals, corporations, and organizations.

Not all government documents must go through the FOIA process to be disclosed. Any document readily available to the public may be released absent a FOIA request. This rule applies to brochures, flyers, published materials, and other documents accessible via the Internet.

All other documents not publicly available must be released through the FOIA, such as copies of letters to and from the USACE Regulatory Division that reference USACE Regulatory Division projects, project research, diagrams, reports, and technical specifications; contract information pertaining to Corps projects; project data; and personnel information.

FOIA covers all existing agency records regardless of the form or format. For example, email, contracts, photos, and maps are covered.

Please visit our Issued Permits, Appeals and FOIA tab for information on whom to contact regarding further information on FOIA, or to make a FOIA request.

FOIA does not require federal agencies to answer questions, create records, render opinions, or provide subjective evaluations. Requesters can ask for existing records.

An EIS is a supporting document that is the most thorough and comprehensive level of National Environmental Policy Act (NEPA) documentation used to assist in making a permit decision. If a Finding of No Significant Impact (FONSI) cannot be made in an Environmental Assessment (EA), an EIS level analyzation must be completed. The EIS is not a decision document when developed in conjunction with a USACE Regulatory action, meaning that the U.S. Army Corps of Engineers fully considers the information gained when making the decision to approve or deny a proposed Regulatory application, but does not solely base its decision on the outcome of the EIS.

See What is an Environmental Impact Statement?