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Overview

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Introduction
The Department of the Army regulatory program is one of the oldest in the Federal Government. Initially it served a fairly simple, straightforward purpose: to protect and maintain the navigable capacity of the nation's waters. Time, changing public needs, evolving policy, case law, and new statutory mandates have changed the complexion of the program, adding to its breadth, complexity, and authority.

Mission Statement
The Regulatory Division is committed to the protection, wise management, and use of the nation's aquatic resources. We shall discharge this duty in a manner that both fulfills the public trust and our commitment to public service.

Corps of Engineers Regulatory Jurisdiction Graphic 

The geographic jurisdiction of the Rivers and Harbors Act of 1899 (RHA) includes all navigable waters of the United States which are defined (33 CFR Part 329) as, "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce." This jurisdiction extends seaward to include all ocean waters within a zone three nautical miles from the coast line (the "territorial seas"). Limited authorities extend across the outer continental shelf for artificial islands, installations and other devices (see 43 U.S.C. 1333 (e)). Activities requiring permits under Section 10 of RHA include structures (e.g., piers, wharfs, breakwaters, bulkheads, jetties, weirs, transmission lines) and work such as dredging or disposal of dredged material, or excavation, filling, or other modifications to the navigable waters of the United States.

The Clean Water Act uses the term "navigable waters" which is defined (Section 502(7)) as "waters of the United States, including the territorial seas.  

**For the most current information regarding the definition of Waters of the United States, please visit the Regulatory Jurisdictional Information page (HERE).

Activities, requiring Section 404 permits are limited to discharges of dredged or fill materials into the waters of the United States. These discharges include return water from dredged material disposed of on the upland and generally any fill material (e.g., rock, sand, dirt) used to construct fast land for site development, roadways, erosion protection, etc.

The geographic scope of Section 103 of the Marine Protection Research and Sanctuaries Act of 1972 is those waters of the open seas lying seaward of the baseline from which the territorial sea is measured. Along coast lines this baseline is generally taken to be the low water line. Thus, there is jurisdiction overlap with the Clean Water Act. By interagency agreement with EPA, the discharge of dredged material in the territorial seas is regulated under the Section 103 criteria rather than those developed for Section 404.

The legislative origins of the program are the Rivers and Harbors Acts of 1890 (superseded) and 1899 (33 U.S.C. 401, et seq.). Various sections establish permit requirements to prevent unauthorized obstruction or alteration of any navigable water of the United States. The most frequently exercised authority is contained in Section 10 (33 U.S.C. 403) which covers construction, excavation, or deposition of materials in, over, or under such waters, or any work which would affect the course, location, condition, or capacity of those waters. The authority is granted to the Secretary of the Army. Other permit authorities in the Act are Section 9 for dams and dikes, Section 13 for refuse disposal, and Section 14 for temporary occupation of work built by the United States. Various pieces of legislation have modified these authorities, but not removed them.

In 1972, amendments to the Federal Water Pollution Control Act added what is commonly called Section 404 authority (33 U.S.C. 1344) to the program. The Secretary of the Army, acting through the Chief of Engineers, is authorized to issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill material into waters of the United States at specified disposal sites. Selection of such sites must be in accordance with guidelines developed by the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army; these guidelines are known as the 404(b)(1) Guidelines. The discharge of all other pollutants into waters of the United States is regulated under Section 402 of the Act which supersedes the Section 13 permitting authority mentioned above. The Federal Water Pollution Control Act was further amended in 1977 and given the common name of "Clean Water Act" and was again amended in 1987 to modify criminal and civil penalty provisions and to add an administrative penalty provision.

Also in 1972, with enactment of the Marine Protection, Research, and Sanctuaries Act, the Secretary of the Army, acting through the Chief of Engineers, was authorized by Section 103 to issue permits for the transportation of dredged material to be dumped in the ocean. This authority also carries with it the requirement of notice and opportunity for public hearing. Disposal sites for such discharges are selected in accordance with criteria developed by EPA in consultation with the Secretary of the Army

Most of these permit authorities (with specific exception of Section 9) have been delegated by the Secretary of the Army to the Chief of Engineers and his authorized representatives. Section 10 authority was formally delegated on May 24, 1971, with Section 404 and 103 authorities delegated on March 12, 1973. Those exercising these authorities are directed to evaluated the impact of the proposed work on the public interest. Other applicable factors (such as the 404(b)(1) Guidelines and ocean dumping criteria) must also be met, of course. In delegating this authority, the Secretary of the Army qualified it to "...[be] subject to such conditions as I or my authorized representatives may from time to time impose."

Additional clarification of this delegation is provided in the program's implementing regulations (33 CFR 320-332). Division and district engineers are authorized to issue conditioned permits (Part 325.4) and to modify, suspend, or revoke them (Part 325.7). Division and district engineers also have authority to issue alternate types of permits such as letters of permission and regional general permits (Part 325.2). In certain situations the delegated authority is limited (Part 325.8).

This delegation recognizes the decentralized nature and management philosophy of the Corps of Engineers organization. Regulatory program management and administration is focused at the district office level, with policy oversight at higher levels. The backbone of the program is the Department of the Army regulations (33 CFR 320-332) which provide the district engineer the broad policy guidance needed to administer day-to-day operation of the program. These regulations have evolved over time, changing to reflect added authorities, developing case law, and in general the concerns of the public. They are developed through formal rule making procedures

Permitting

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A Standard Permit is required when a proposed project does not meet the criteria to qualify for a General Permit, Nationwide Permit, or Letter of Permission. A Standard Permit usually has a 21-day comment period under public noticing, though it can be as short as 15 days or up to 30 days. A copy of the permit drawings and a description of the project are mailed out to the adjacent property owners and the applicant and their consultant. All other interested parties have to access pending public notices from the web. Processing time for these types of permits is usually 60 to 120 days from the receipt of a complete application in non-controversial projects. Controversial or larger projects may take longer.

The term "general permit" means a Department of the Army authorization that is issued on a nationwide or regional (District-wide or more limited geographic scope) basis for a category of activities when: those activities are substantially similar in nature and cause only minimal individual and cumulative impacts. General permits are a way to reduce the burden of the regulatory program on the public and ensure timely issuance of permits while effectively administering the laws and regulations which establish and govern the program.

General permits are reviewed every five years. An assessment of the cumulative impacts of work authorized under the general permit is performed at that time if it is in the public interest to do so. In most instances, anyone complying with the conditions of the general permit can receive project specific authorization. Anyone not complying with the conditions of a general permit may still receive authorization via a "standard permit", but the application must be individually evaluated and coordinated with third parties, including the federal and state resource agencies. Review of an application for a "standard permit" takes additional time to complete as conflict resolution may be required.

A list of the applicable general permits can be obtained by contacting a project manager in your geographical location. Below, view the current list of general permits administered by the Honolulu District. As additional permits are reauthorized, or new permits are effected, they will be added.

 

General Conditions – The following six general conditions are included with all Department of the Army Authorizations, as per 33CFR Part 325, Appendix A :

1. The time limit for completing the work authorized ends on the date noted above.

2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area.

3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the federal and state coordination required to determine if the remains warrant a recovery effort of if the site is eligible for listing in the National Register of Historic Places.

4. If you sell the property associated with this permit you must obtain the signature and mailing address of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization.

5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions.

6. You must allow a representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit.

The term "letter of permission" means a type of individual permit issued in accordance with the abbreviated procedures of 33 CFR 325.2(e).

33 CFR 325.2(e)(1) reads as follows:

    e. Alternative procedures. Division and district engineers are authorized to use alternative procedures as follows: 
        1. Letters of permission. Letters of permission are a type of permit issued through an abbreviated processing procedure which includes coordination with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife Coordination Act, and a public interest evaluation, but without the publishing of an individual public notice. The letter of permission will not be used to authorize the transportation of dredged material for the purpose of dumping it in ocean waters. Letters of permission may be used: 
            I. In those cases subject to Section 10 of the Rivers and Harbors Act of 1899 when, in the opinion of the district engineer, the proposed work would be minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition.

            II. In those cases subject to section 404 of the Clean Water Act after: 
                    1. The district engineer, through consultation with Federal and state fish and wildlife agencies, the Regional Administrator, Environmental Protection Agency, the state water quality certifying agency, and, if appropriate, the state Coastal Zone Management Agency, develops a list of categories of activities proposed for authorization under LOP procedures; 
                    2. The district engineer issues a public notice advertising the proposed list and the LOP procedures, requesting comments and offering an opportunity for public hearing; and 
                    3. A 401 certification has been issued or waived and, if appropriate, CZM consistency concurrence obtained or presumed either on a generic or individual basis.

The criteria for Section 10 and Section 404 LOPs in the Jacksonville District, excluding Puerto Rico and the U.S. Virgin Islands, and the various addenda to the criteria are as follows:

Nationwide permits are general permits issued nationwide to authorize categories of similar activities with minor impacts. 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

An integral part of the Corps' regulatory program is the concept of NWPs for minor activities. NWPs are activity specific, and are designed to relieve some of the administrative burdens associated with permit processing for both the applicant and the federal government. Some activities authorized by NWPs require pre-construction notification to the District Engineer before commencing with the work. This notification requirement to the District Engineer is necessary to ensure that activities authorized by these NWPs have minimal individual and cumulative adverse impacts on the aquatic environment. Anyone not complying with the terms and conditions of a NWP may still receive authorization via a "standard permit," but the application must be individually evaluated and coordinated with third parties, including the federal and state resource agencies. Review of an application for a "standard permit" takes additional time to complete, as conflict resolution may be required.

In addition to the NWP general conditions, Division Engineers are authorized to add regional conditions specific to the needs and/or requirements of a particular region or state. Regional conditions are an important mechanism to ensure that impacts to the aquatic environment authorized by the NWPs are minimal, both individually and cumulatively.

NWPs can only be authorized for a five-year period, at which time they must be re-evaluated for their impacts on the aquatic environment. The current NWPs became effective on March 19, 2017. 

2017 Nationwide Permits:

Federal Register / Vol. 82, No. 4 / Friday, January 06, 2017 / Issuance and Reissuance of Nationwide Permits *

* Detailed information for each of the NWPs begins on Page 87
* General conditions that apply to all NWPs begin on page 100

Regional (Honolulu District) Special Conditions

A determination by the Corps that no permit is required for a specific project may be based on one or more of the following:

1. A proposed project will not require a Department of the Army permit in accordance with Section 10 of the Rivers and Harbors Act of 1899 if it is not located within the navigable waters of the United States. Furthermore, a permit will not be required in accordance with Section 404 of the Clean Water Act if it will not involve the discharge of dredged or fill material into waters of the United States.

2. A project as proposed will not require a Department of the Army permit in accordance with Section 10 of the Rivers and Harbors Act of 1899 if it is considered a bridge and, therefore, is under the regulatory jurisdiction of the U.S. Coast Guard.

3. A project does not require a Department of the Army permit if the proposed work has been determined to be an exempt silviculture, farming, or ranching activity pursuant to the Code of Federal Regulations (33 CFR Part 323.4), provided the work is done in accordance with the provisions and conditions identified in 33 CFR Part 323.4 a Department of the Army authorization will not be required.

4. A project will not require a Department of the Army permit if the activity itself is not regulated. Examples of non-regulated activities may include work in uplands or non-regulated wetlands, as well as some piling supported structures and some excavation activities.

As always, you should contact your local Corps Regulatory Office for assistance in determining whether or not a permit is required.

A No Permit Required determination by the Corps:

  • Does not obviate the requirement to obtain any other Federal, State, or local permits which may be necessary for your project.
  • Does not constitute a federal evaluation of possible impacts to species protected under the Endangered Species Act. Projects that have the potential to impact federally listed species should contact the U.S. Fish and Wildlife Service.
  • Does not constitute a federal evaluation of possible impacts to historic resources protected under Section 106 of the Natural Historic Preservation Act. Projects that have the potential to impact historic sites should contact the State Historic Preservation Officer in Tallahassee.
  • Does not determine if your project may be subject to local building restrictions mandated by the National Flood Insurance Program. You should contact your local office that issues building permits to determine if your site is located in a flood-prone or floodway area, and if you must comply with the local building requirements mandated by the National Flood Insurance Program.
  • May not be valid for the wetland conservation provisions of the Food Security Act of 1985, as amended. If you or your tenant are U.S. Department of Agriculture (USDA) program participants, or anticipate participation in USDA programs, you should request a certified wetland determination from the local office of the Natural Resources Conservation Service prior to starting work.
  • Reflect current policy and regulations and are usually valid for a period of no longer than five years from the date of the letter unless new information warrants a revision of the determination before the expiration date. If after the five-year period, the Corps has not specifically revalidated the determination, it will automatically expire. Any reliance upon a determination beyond the expiration date may lead to possible violation of current federal laws and/or regulation.

The basic form of authorization used by Corps districts is the Individual Permit. Processing such permits involves evaluation of individual, project specific applications in what can be considered three steps: pre-application consultation (for major projects), formal project review and decision making.

You are encouraged to contact the local Corps of Engineers field office in your area prior to making a permit application. Pre-application consultation usually involves one or more meetings between an applicant, Corps district staff, interested resource agencies (federal, state and/or local), and sometimes the interested public. The basic 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.

By discussing the work prior to submitting an application, your application can be processed more efficiently.

Helpful Hints for Submitting a Permit Application:

This information will assist individuals in identifying and acquiring permits for projects affecting waters of the United States under Section 404 of the Clean Water Act, and Section 10 of the Rivers and Harbors Act. Hopefully, this information will minimize not only the time, effort and expense needed to accomplish projects, but will also help to lessen any adverse impact a project may have on the aquatic environment.

If you have questions about the extent of wetlands on your site, please contact your local field office to arrange for a wetland jurisdictional determination or a site review. This will allow you to plan your project to avoid and minimize impacts to wetlands where possible. Pre-application meetings or a phone call to your local field office may be necessary or helpful to determine the extent of the project and what measures might need to be taken into consideration during your project design.

Please provide clear drawings. Do not clutter the drawings with extraneous information. A simple drawing which clearly shows the project is easier to copy and will be more readable by the time a permit decision is finally reached. Remember, these drawings must be copied for publication in the Public Notice.

It is very important that you provide complete information and details of the project. The following information is required for review by the Corps:

  • Name, address, and phone number of applicant.
  • Complete description of the proposed project, including the purpose, type and quantity of material to be discharged.
  • All related activities. Is this a multiphase project? Have additional permits been applied for or received?
  • A list of all adjacent property owners and their addresses.
  • The project location. This should be clearly marked on a road map and a description of the directions should be included. In addition to the map and directions, you should submit the section, township and range and the latitude and longitude of the site.
  • Has the application been signed?
  • Be sure to include a full set of drawings on 8.5 inch by 11 inch format. These should include plan view, section view, elevation view, profile and grade drawings. Please use match lines where necessary.

After the application is received by the Corps, it will be assigned an identification number and reviewed for completeness. A request for additional information may be sent to notify you of any additional information which may be necessary for the Corps to review your proposed project. Then within 15 days of receiving all the required information, a public notice will be issued with a 15- to 30-day comment period. The proposal is then reviewed by the Corps, local, state and federal agencies, special interest groups and the general public.

After the comment period, the Corps reviews all of the comments received and consults with other agencies where appropriate. The Corps may ask for additional information at this time, and a public hearing may be conducted if one has been specifically requested and a decision has been made that there is a need.

The project manager evaluates the impacts of the project and all comments received, negotiates necessary modifications of the project if required, and drafts appropriate documentation to support a recommended permit decision. The permit decision document includes a discussion of the environmental impacts of the project, the findings of the public interest review process, and any special evaluation required by the type of activity such as compliance determinations with the Section 404(b)(1) guidelines or the ocean dumping criteria.

When all considerations are satisfied, the District Engineer decides to either issue or deny the permit application. If a denial is warranted, you will receive a written explanation of the reason for denial.

Fees are required for any issued individual permit and consist of $10.00 for individual, non-commercial projects, and $100.00 for commercial projects.

The Corps makes every effort to process Individual Permit applications within 120 days of the date a complete application is submitted. In some cases, such as controversial projects, large projects, or projects with endangered species or historic properties concerns, the processing time may be greater than 120 days.

Permits can be issued with special conditions. When a Standard Permit or Letter of Permission (LOP) is issued, a Self-Certification Form is included. When the authorized activity and or mitigation is completed, the permittee is required to fill out the form and mail it to the Enforcement Branch. This is a special condition attached to all IPs and LOPs and assists our Enforcement Branch with permit compliance.

Survey Information that may be required

If you need additional information concerning the permit process please contact your local Regulatory field office.

The Corps supports a strong partnership with states in regulating water resource developments. This is achieved with joint permit processing procedures (e.g., joint public notices and hearings), programmatic general permits founded on effective state programs, transfer of the Section 404 program in non-navigable waters, joint EISs, special area management planning, and regional conditioning of nationwide permits.

Permit Requirements

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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.
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.
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.

Also known as Magnuson Fishery Conservation and Management Act, this law established a 200-mile fishery conservation zone, effective March 1, 1977, and established Regional Fishery Management Councils comprised of Federal and State officials, including the Fish and Wildlife Service. The concept of a fishery conservation zone was subsequently dropped by amendment and the geographical area of coverage was changed to the Exclusive Economic Zone (EEZ), with the inner boundary being the seaward boundary of the coastal States.

The Act provides for management of fish and other species in the EEZ under plans drawn up by the Regional Councils and reviewed and approved by the Secretary of Commerce. It provides for regulation of foreign fishing in the management zone under GIFA's (governing international fishing agreements) and vessel fishing permits. It also provides a mechanism for preemption of State law by the Secretary of Commerce.

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.

Standard Local Operating Procedures for Endangered Species in the Central and Western Pacific Region (Pac-SLOPES) includes a concise set of guidelines that would be used to determine whether or not proposed actions fit under the programmatic consultation. It also includes implementation procedures that require review and feedback by NMFS Protected Resources Division (PRO) to confirm that the proposed action complies with the programmatic.

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

Wetlands

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What is a wetland?

The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency define wetlands as 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 are areas that generally include swamps, marshes, bogs, and similar areas

Wetlands are areas that are covered by water or have waterlogged soils for long periods (14-21 days) during the growing season. Plants growing in wetlands are capable of living in saturated soil conditions for at least part of the growing season. Wetlands such as swamps and marshes are often obvious, but some wetlands are not easily recognized, often because they are dry during part of the year or "they just don't look very wet" from the roadside.

Some of these wetland types include, but are not limited to, many bottomland forests, pocosins, pine savannahs, bogs, wet meadows, potholes and wet tundra. Information is given here to help you determine if you have a wetland. If you intend to place dredged or fill material in a wetland or in an area that might be a wetland, contact the local Corps regulatory office to see if a permit is required.

Why is it necessary to consider whether an area is a wetland?

Section 404 of the Clean Water Act requires that anyone interested in depositing dredged or fill material into "waters of the United States, including wetlands," must receive authorization for such activities. The Corps has been assigned responsibility for administering the Section 404 permitting process. Activities in wetlands for which permits may be required include, but are not limited to:

  • Placement of fill material
  • Ditching activities when the excavated material is sidecast
  • Levee and dike construction
  • Mechanized land clearing
  • Land leveling
  • Most road construction
  • Dam construction

The final determination of whether an area is a wetland and whether the activity requires a permit must be made by a Corps regulatory office. 

How can wetlands be recognized?

The Corps uses three characteristics of wetlands when making wetland determinations: vegetation, soil and hydrology. Each characteristic is discussed below. Unless an area has been altered or is a rare natural situation, wetland indicators of all three characteristics must be present during some portion of the growing season for an area to be a wetland.

There are some general situations in which an area has a strong probability of being a wetland. If any of the following situations occur, you should ask the local Corps office to determine whether the area is a wetland.

  • Area occurs in a floodplain or otherwise has low spots in which water stands at or above the soil surface during the growing season. Caution: Most wetlands lack both standing water and waterlogged soils during at least part of the growing season.
  • Area has plant communities that commonly occur in areas having standing water for part of the growing season (e.g., cypress-gum swamps, cordgrass marshes, cattail marshes, bulrush and tule marshes and sphagnum bogs).
  • Area has soils that are called peats or mucks.
  • Area is periodically flooded by tides, even if only by strong, wind-driven, or spring tides.

Many wetlands can be readily identified by the general situation stated above. For the boundary of these areas and numerous other wetlands, however, it is unclear whether these situations occur.

In such cases, it is necessary to carefully examine the area for wetland indicators of the three major characteristics of wetlands: vegetation, soil and hydrology. Wetland indicators of these characteristics, which may indicate that the area is a wetland, are described below:

Vegetation Indicators

Nearly 5,000 plant types in the United States may occur in wetlands. These plants, known as hydrophytic vegetation, are listed in the Corps' 2012 National Wetland Plant List (NWPL). The NWPL can be found Here.

You can usually determine if wetland vegetation is present by knowing a relatively few plant types that commonly occur in your area. For example, cattails, bulrushes, cordgrass, sawgrass, sphagnum moss, bald cypress, willows, bay trees, mangroves, sedges, rushes, arrowheads and water plantains usually occur in wetlands.

Other indicators of plants growing in wetlands include trees having shallow root systems, swollen trunks (e.g., bald cypress, tupelo gum) or roots found growing from the plant stem or trunk above the soil surface. Several Corps offices have published pictorial guides of representative wetland plant types.

If you cannot determine whether the plant types in your area are those that commonly occur in wetlands, ask the local Corps regulatory office or a local botanist for assistance.

Soil Indicators

There are approximately 2,000 named soils in the United States that may occur in wetlands. Such soils, called hydric soils, have characteristics that indicate they were developed in conditions where soil oxygen is limited by the presence of saturated soil for long periods during the growing season. If the soil in your area is listed as hydric by the Natural Resources Conservation Service (NRCS), the area might be a wetland.

If the name of the soil in your area is not known, an examination of the soil can determine the presence of any hydric soil indicators, including:

  • Soil consists predominantly of decomposed plant material (peats or mucks)
  • Soil has a thick layer of decomposing plant material on the surface
  • Soil has a bluish gray or gray color below the surface, or the major color of the soil at this depth is dark (brownish black or black) and dull
  • Soil has the odor of rotten eggs
  • Soil is sandy and has a layer of decomposing plant material at the soil surface
  • Soil is sandy and has dark stains or dark streaks of organic material in the upper layer below the soil surface. These streaks are decomposed plant material attached to the soil particles. When soil from these streaks is rubbed between the fingers, a dark stain is left on the fingers.
  • Soil has red streaks, especially around plant roots.

Hydrology Indicators

Wetland hydrology refers to the presence of water at or above the soil surface for a sufficient period of the year to significantly influence the plant types and soils that occur in the area. Although the most reliable evidence of wetland hydrology may be provided by gaging station or groundwater well data, such information is limited for most areas and, when available, requires analysis by trained individuals. Thus, most hydrologic indicators are those that can be observed during field inspection. Most do not reveal either the frequency, timing, or duration of flooding or the soil saturation.

The following indicators provide some evidence of the periodic presence of flooding or soil saturation:

  • Standing or flowing water is observed on the area during the growing season
  • Soil is waterlogged during the growing season
  • Water marks are present on trees or other erect object. Such marks indicate that water periodically covers the area to the depth shown on the objects.
  • Drift lines, which are small piles of debris oriented in the direction of water movement through an area, are present. These often occur along contours and represent the approximate extent of flooding in an area.
  • Debris is lodged in trees or piled against other object by water.
  • Leaves or other objects are water stained or have visible thin layers of sediments deposited on them. Sometimes these become consolidated with small plant parts to form discernible crust on the soil surface.
  • Presence of crayfish burrows

 

 

Wetlands are currently defined by the U.S. Army Corps of Engineers as "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 to life in saturated soil conditions." Not all wetlands fall within the Corps' regulatory jurisdiction. Information regarding how the Corps evaluates whether or not a wetland is regulated is available from the Jurisdictional Information page.

 

Mitigation

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Information pertaining to mitigation banks is available at the Regulatory In-Lieu fee and Bank Information Tracking System (RIBITS).

Compensatory Mitigation

Compensatory Mitigation Rule

The Corps of Engineers permit regulations, at 33 CFR 325.4, stipulate that special conditions may be added to permits in order to satisfy public interest concerns and/or legal requirements, such as compliance with the Clean Water Act 404(b)(1) Guidelines. If a proposed permit action would result in impacts to wetlands, these special conditions often include provisions requiring the permittee to compensate for the expected impact. This compensation is commonly referred to as compensatory mitigation. It may also be referred to simply as mitigation, although strictly speaking, it is only one of three forms of mitigation. The first two forms, avoidance and minimization, are typically addressed through alternative siting and/or modifications to the project design. For most standard permits (i.e., those that require issuance of a public notice), and in particular those subject to regulation under the Clean Water Act, avoidance and minimization of impacts to aquatic resources, including wetlands, must be addressed prior to considering compensatory mitigation. Compensatory mitigation, therefore, is only utilized to offset impacts which are otherwise unavoidable. The process of incorporating all appropriate and practicable measures to avoid, minimize and, finally, compensate for impacts to aquatic resources caused by permit actions is referred to as sequencing.

The Corps of Engineers' mitigation policy relative to projects authorized under Section 404 of the Clean Water Act is explained in a Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army, which was signed on February 6, 1990. The memorandum establishes that: "The Corps will strive to avoid adverse impacts and offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will strive to achieve a goal of no overall net loss of values and functions." Compensatory mitigation for wetland impacts may be accomplished in several ways. The most common forms of mitigation are projects which result in the restoration, enhancement or creation of wetlands. In exceptional circumstances, compensatory mitigation may also be accomplished through the preservation of unique and valuable wetlands which are under demonstrable threat of destruction. In general, the memorandum establishes a preference for onsite mitigation at or in the immediate vicinity of the wetland impact site and for in-kind replacement using wetlands which are similar to those which would be impacted. These preferences may be overriden, however, if onsite and in-kind mitigation is not available, not practicable or if another mitigation option is environmentally preferable. Compensatory mitigation for wetland impacts should, to the extent practicable, result in a minimum of one-to-one functional replacement, or one-to-one acreage replacement if adequate functional assessment techniques are not available.

Mitigating the environmental impacts of necessary development actions on the nation's wetlands and other aquatic resources is a central premise of federal wetlands programs. The Clean Water Act (CWA) Section 404 permit program relies on the use of compensatory mitigation to offset unavoidable damage to wetlands and other aquatic resources through, for example, the restoration or creation of wetlands. Under the "Swampbuster" provisions of the Food Security Act (FSA), farmers are required to provide mitigation to offset certain conversions of wetlands for agricultural purposes in order to maintain their program eligibility.

Mitigation for wetland impacts may take place on-site, off-site, in mitigation banks, or be funded by in-lieu fees. Mitigation may include creation, enhancement or restoration of wetlands and their functions or, in some cases, may include preservation of wetlands and associated upland buffers.

Consistent with the Corps’ regulations at 33 CFR Part 332, concerning compensatory mitigation for aquatic resource impacts, one objective is to provide a minimum one-to-one functional replacement for wetland loss. To do this, the functions of a wetland can be identified and evaluated through a numeric functional assessment methodology. While the Corps neither prescribes nor prohibits any specific numeric functional assessment, the Corps desires to be responsive to the needs of the public by accepting the same methodology required by state and local levels, when appropriate

Mitigating the environmental impacts of necessary development actions on the nation's wetlands and other aquatic resources is a central premise of federal wetlands programs. The Clean Water Act (CWA) Section 404 permit program relies on the use of compensatory mitigation to offset unavoidable damage to wetlands and other aquatic resources through, for example, the restoration or creation of wetlands. Under the "Swampbuster" provisions of the Food Security Act (FSA), farmers are required to provide mitigation to offset certain conversions of wetlands for agricultural purposes in order to maintain their program eligibility.

Mitigation for wetland impacts may take place on-site, off-site, in mitigation banks, or be funded by in-lieu fees. Mitigation may include creation, enhancement or restoration of wetlands and their functions or, in some cases, may include preservation of wetlands and associated upland buffers.

Appeals

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Procedures for appealing Corps permit decisions are found at 33 CFR Part 331. The following paragraph briefly summarizes the permit appeal process.

The U.S. Army Corps of Engineers has an administrative appeal process whereby applicants and landowners may appeal denied permits, issued permits that contain requirements that are unacceptable to the applicant, or approved jurisdictional determinations. Although these decisions are made by Corps District offices. Requests for appeals of such decisions are appealed to the Corps Division offices. Requests for appeal must be furnished to the Division office within 60 days of the date of the appealable decision. A site visit or an appeal conference or meeting may be conducted during the appeal process. A decision on the merits of the appeal based on the administrative record is normally made in 90 days. The Division will either uphold the District decision or send the case back to the District, with direction to make a new decision.

Enforcement

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Procedures for enforcing Corps permitting authorities are found at 33 CFR Part 326.  The following paragraphs briefly summarize those procedures.Inspection and surveillance activities are carried out by all means at the District Engineer's disposal. Corps employees are instructed on the observation and reporting of suspected unauthorized activities in waters of the United States and of violations of issued permits. The assistance of members of the public and other interested federal, state and local agencies is encouraged.

When the District Engineer becomes aware of any unauthorized activity still in progress, he must first issue a cease and desist order and then begin an investigation of the activity to ascertain facts concerning alleged violations. If the unauthorized activity has been completed he will advise the responsible party of his discovery and begin an investigation. Following his evaluation, the District Engineer may formulate recommendations on the appropriate administrative course or legal action to be taken.

The District Engineer's evaluation contains an initial determination of whether any significant adverse impacts are occurring that would require expeditious corrective measures to protect life, property, or a significant public resource. Once that determination is made, such remedial measures can be administratively ordered and a decision can be made on whether legal action is necessary. In certain cases, District Engineers, following the issuance of a cease and desist order, coordinate with state and federal resource agencies in deciding what action is appropriate. Further evaluation of the violation takes into consideration voluntary compliance with a request for remedial action. A permit is not required for restoration or other remedial action.

For those cases that do not require legal action and for which complete restoration has not been ordered, the Department of the Army will accept applications for after-the-fact permits. The full public interest review is deferred during the early stages of the enforcement process. A complete public interest review is conducted only if and when the District Engineer accepts an application for an after-the-fact permit.

The laws that serve as the basis for the Corps' regulatory program contain several enforcement provisions which provide for criminal, civil and administrative penalties. While the Corps is solely responsible for the initiation of appropriate legal actions pursuant to enforcement provisions relating to its Section 10 authority, the responsibility for implementing those enforcement provisions relating to Section 404 is jointly shared by the Corps and U.S. Environmental Protection Agency (USEPA). For this reason the Army has signed a Section 404 enforcement memorandum of agreement (MOA) with USEPA to ensure that the most efficient use is made of available federal resources. Pursuant to this MOA, the Corps generally assumes responsibility for enforcement actions with the exception of those relating to certain specified violations involving unauthorized activities.

If a legal action is instituted against the person responsible for an unauthorized activity, an application for an after-the-fact permit cannot be accepted until final disposition of all judicial proceedings, including payment of all fees as well as completion of all work ordered by the court.

Presently about 6,000 alleged violations are processed in Corps district offices each year. The approximate breakdown by authority is: Section 10, 15 percent; Section 404, 60 percent; and Section 10/404, 25 percent.

The Corps strives to reduce violations by effective publicity, a comprehensive general permit program, and an efficient and fair evaluation of individual permit applications.

MEMORANDUM OF AGREEMENT BETWEEN The Department of the Army AND The Environmental Protection Agency CONCERNING Federal Enforcement for the Section 404 Program of the Clean Water Act

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.

If you believe you have observed unpermitted work, 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.

Regulations and Policies

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Corps of Engineers Statutory Authorities

U.S. Army Corps of Engineers Regulatory Program Regulations

Contact Information

Regulatory Office
Building 230
Fort Shafter, HI  96858-5440
(808) 835-4303
CEPOH-RO@usace.army.mil 

Guam Field Office
Apra Harbor Naval Complex
PSC 455 Box 188
FPO, AP 96540-1088  Guam
(671) 339-2108 
CEPOH-RO@usace.army.mil