Section 10 of the Rivers and Harbors Act of 1899 (RHA) requires Corps’ authorization prior to any work in, under, or over navigable waters of the United States, or which affects the course, location, condition or capacity of such waters. Navigable waters of the United States 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. Typical activities requiring a permits are:
- Piers, docks, wharves, bulkheads, dolphins, marinas, ramps, floats intake structures, and cable or pipeline crossings.
- Dredging and excavation
- Bank stabilization
Section 9 of the RHA prohibits the construction of any dam or dike across any navigable water of the U.S. in the absence of Congressional consent and approval of the plans by the Chief of Engineers and by the Secretary of the ARmy. Where the navigable portions of the waterbody lie wholly within the limits of a single state, the structure may be built under authority of the legislature of that state if the location and plans or any modification thereof are approved by the Chief of Engineers and by the Secretary of the Army. The instrument of authorization is designated a permit (See 33 CFR Part 321.) Section 9 also pertains to bridges and causeways but the authority for issuing permits under Section 9 of the RHA has been given to the U.S. Coast Guard, although a DA permit may be required pursuant to Section 404 of the Clean Water Act if the construction of a bridge over a navigable water requires the discharge of dredged and/or fill material into waters of the U.S.
Section 404 of the Clean Water Act (CWA) requires Corps’ authorization prior to discharging dredged or fill material into the waters of the United States. Activities normally requiring a permit include:
- Transportation facilities
- Residential, commercial, or recreational developments including roadways and utility lines.
- Revetments, groins, breakwaters, levees, dams, dikes, riprap, and weirs.
Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended requires the issuance of a permit for the transportation of dredged material for the purpose of disposal in the ocean waters. Because the Sacramento District boundaries do not include ocean waters, the applicability of this law in the Sacramento District is limited.
Types of Permits:
The type of permit that is issued by the Corps depends on the nature of the activity and the impacts to waters of the U.S. Permits issued by the Corps fall into two categories, General Permits and Individual Permits.
General permits are a type of permit issued on a regional or nationwide basis for a category or categories of activities when: (1) those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or (2) the general permit would result in avoiding unnecessary duplication of the regulatory control exercised by another Federal, state, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minor. General Permits consist of Regional or Programmatic General Permits and Nationwide Permits.
Regional and Programmatic General Permits:
Regional General Permits (RGP) are issued on a regional basis and may required case-by-case reporting.
Programmatic General Permit (PGP) are founded on an existing state, local or other Federal program designed to avoid duplication of that program.
RGPs and PGPs may only be issued following the publishing of a public notice, and preparation of a decision document to ensure that the authorized activities cause only minimal individual and cumulative environmental impacts. In the majority of cases, RGPs and PGPs contain conditions to further ensure that environmental impacts are minimal, including conditions for the submittal of a permit application prior to activities occurring within waters of the U.S. To ensure compliance with the RGP or PGP, you must carefully read all of the terms and conditions of an RGP or PGP prior to initiating construction activities in waters of the U.S.
Nationwide permits (NWPs)
are general permits issued on a nationwide basis to streamline the authorization of activities that result in minimal individual and cumulative adverse effects on the aquatic environment. In order to qualify for the use of a NWP, perspective permittees must comply with all of the terms, general conditions (GCs), and regional conditions (RCs) of the NWP, including any requirements for the submittal of a pre-construction notification (PCN). Many of the NWPs, GCs and RCs require the submittal of a PCN before commencing the work, to ensure that the activities authorized by those NWPs have minimal individual and cumulative adverse impacts on the aquatic environment. In these cases, if the activity complies with the terms and conditions of the NWP, a NWP verification letter will be sent to the prospective permittee. The NWP verification may include additional case specific conditions (special conditions) to ensure no more than minimal individual and cumulative impacts, and will state that the verification is valid for a specific period of time (generally but no more than two years), unless the NWP authorization is modified, suspended, or revoked. Per regulation, the NWPs must be reissued every five years. The reissuance process involves a full interagency and public interest review.
Individual permits are permits for activities that cannot be authorized under a general permit. These activities may have more than minimal individual or cumulative environmental impacts. Individual permits consist of Letters of Permission and Standard Permits.
Letters of Permission:
A Letter of Permission (LOP)
is a type of individual permit issued through an abbreviated processing procedure which includes coordination with Federal and state fish and wildlife agencies, and a public interest evaluation, but without the publishing of an individual public notice. The LOP cannot be used to authorize the transportation of dredged material for the purposed of dumping it in ocean waters. A Letter of Permission (LOP) may be authorized for certain activities subject to Section 10 of the Rivers and Harbors Act of 1899 , or may be authorized for activities subject to Section 404 of the Clean Water Act within the States of California, Nevada or Utah, provided the applicant follow the LOP process for the appropriate state. For the use of an LOP under Section 404 of the Clean Water Act, you must schedule a pre-application (California
) meeting with the appropriate Sacramento District Office
A Standard Permit (SP) is one which has been processed through the public interest review procedures, including public notice and receipt of comments. Review through the SP process is only done for activities that do not qualify for authorization under a Regional General Permit, Programmatic General Permit, Nationwide Permit, or Letter of Permission. The SP process is the most time consuming and stringent process utilized by the Corps. You will be required to submit more information during the SP process than during any other permit process. For any activities requiring processing under an SP, you should anticipate that a decision will not be made for a minimum of 120-days from submittal of a completed permit application. If the project is controversial, has significant impacts to the environment, is not the least environmentally damaging practicable alternative, or if the project may impact Federally listed threatened and/or endangered species or cultural resource, or requires a Section 401 Water Quality Certification, the permit process will likely take substantially longer than 120-days. For larger projects, it is recommended that you schedule a pre-application (California/Utah) meeting with the appropriate Sacramento District Office.