All activities which the applicant plans to undertake which are reasonably related to the same project and for which a DA permit would be required should be included in the same permit application. District engineers should reject, as incomplete, any permit application which fails to comply with this requirement. For example, a permit application for a marina will include dredging required for access as well as any fill associated with construction of the marina.
If the activity would involve dredging in navigable waters of the United States, the application must include a description of the type, composition and quantity of the material to be dredged, the method of dredging, and the site and plans for disposal of the dredged material.
If the activity would include the discharge of dredged or fill material into the waters of the United States or the transportation of dredged material for the purpose of disposing of it in ocean waters the application must include the source of the material; the purpose of the discharge, a description of the type, composition and quantity of the material; the method of transportation and disposal of the material; and the location of the disposal site. Certification under Section 401 of the Clean Water Act is required for such discharges into waters of the United States.
If the activity would include the construction of a filled area or pile or float-supported platform the project description must include the use of, and specific structures to be erected on, the fill or platform.
If the activity would involve the construction of an impoundment structure, the applicant may be required to demonstrate that the structure complies with established state dam safety criteria or that the structure has been designed by qualified persons and, in appropriate cases, independently reviewed (and modified as the review would indicate) by similarly qualified persons. No specific design criteria are to be prescribed nor is an independent detailed engineering review to be made by the district engineer.
Signature on application. The application must be signed by the person who desires to undertake the proposed activity (i.e. the applicant) or by a duly authorized agent. When the applicant is represented by an agent, that information will be included in the space provided on the application or by a separate written statement. The signature of the applicant or the agent will be an affirmation that the applicant possesses or will possess the requisite property interest to undertake the activity proposed in the application, except where the lands are under the control of the Corps of Engineers, in which cases the district engineer will coordinate the transfer of the real estate and the permit action. An application may include the activity of more than one owner provided the character of the activity of each owner is similar and in the same general area and each owner submits a statement designating the same agent.
If the activity would involve the construction or placement of an artificial reef, as defined in 33 CFR 322.2(g), in the navigable waters of the United States or in the waters overlying the outer continental shelf, the application must include provisions for siting, constructing, monitoring, and managing the artificial reef.
Complete application. An application will be determined to be complete when sufficient information is received to issue a public notice (See 33 CFR 325.1(d) and 325.3(a).) The issuance of a public notice will not be delayed to obtain information necessary to evaluate an application.
Within 15 days of receipt of an application the district engineer will either determine that the application is complete (see 33 CFR 325.1(d)(9) and issue a public notice as described in Section 325.3 of this Part, unless specifically exempted by other provisions of this regulation or that it is incomplete and notify the applicant of the information necessary for a complete application. The district engineer will issue a supplemental, revised, or corrected public notice if in his view there is a change in the application data that would affect the public's review of the proposal.
The district engineer will consider all comments received in response to the public notice in his subsequent actions on the permit application. Receipt of the comments will be acknowledged, if appropriate, and they will be made a part of the administrative record of the application. Comments received as form letters or petitions may be acknowledged as a group to the person or organization responsible for the form letter or petition. If comments relate to matters within the special expertise of another federal agency, the district engineer may seek the advice of that agency. If the district engineer determines, based on comments received, that he must have the views of the applicant on a particular issue to make a public interest determination, the applicant will be given the opportunity to furnish his views on such issue to the district engineer (see 325.2(d)(5)). At the earliest practicable time other substantive comments will be furnished to the applicant for his information and any views he may wish to offer. A summary of the comments, the actual letters or portions thereof, or representative comment letters may be furnished to the applicant. The applicant may voluntarily elect to contact objectors in an attempt to resolve objections but will not be required to do so. District engineers will ensure that all parties are informed that the Corps alone is responsible for reaching a decision on the merits of any application. The district engineer may also offer Corps regulatory staff to be present at meetings between applicants and objectors, where appropriate, to provide information on the process, to mediate differences, or to gather information to aid in the decision process. The district engineer should not delay processing of the application unless the applicant requests a reasonable delay, normally not to exceed 30 days, to provide additional information or comments.
The district engineer will follow Appendix B of 33 CFR Part 230 for environmental procedures and documentation required by the National Environmental Policy Act of 1969. A decision on a permit application will require either an environmental assessment or an environmental impact statement unless it is included within a categorical exclusion.
The district engineer will also evaluate the application to determine the need for a public hearing pursuant to 33 CFR Part 327.
After all above actions have been completed, the district engineer will determine in accordance with the record and applicable regulations whether or not the permit should be issued. He shall prepare a statement of findings (SOF) or, where an EIS has been prepared, a record of decision (ROD), on all permit decisions. The SOF or ROD shall include the district engineer's views on the probable effect of the proposed work on the public interest including conformity with the guidelines published for the discharge of dredged or fill material into waters of the United States (40 CFR Part 230) or with the criteria for dumping of dredged material in ocean waters (40 CFR Parts 220 to 229), if applicable, and the conclusions of the district engineer. The SOF or ROD shall be dated, signed, and included in the record prior to final action on the application. Where the district engineer has delegated authority to sign permits for and in his behalf, he may similarly delegate the signing of the SOF or ROD. If a district engineer makes a decision on a permit application which is contrary to state or local decisions (33 CFR 320.4(j) (2) & (4)), the district engineer will include in the decision document the significant national issues and explain how they are overriding in importance. If a permit is warranted, the district engineer will determine the special conditions, if any, and duration which should be incorporated into the permit. In accordance with the authorities specified in Section 325.8 of this Part, the district engineer will take final action or forward the application with all pertinent comments, records, and studies, including the final EIS or environmental assessment, through channels to the official authorized to make the final decision. The report forwarding the application for decision will be in a format prescribed by the Chief of Engineers. District and division engineers will notify the applicant and interested federal and state agencies that the application has been forwarded to higher headquarters. The district or division engineer may, at his option, disclose his recommendation to the news media and other interested parties, with the caution that it is only a recommendation and not a final decision. Such disclosure is encouraged in permit cases which have become controversial and have been the subject of stories in the media or have generated strong public interest. In those cases where the application is forwarded for decision in the format prescribed by the Chief of Engineers, the report will serve as the SOF or ROD. District engineers will generally combine the SOF, environmental assessment, and findings of no significant impact (FONSI), 404(b)(1) guideline analysis, and/or the criteria for dumping of dredged material in ocean waters into a single document.
If the final decision is to deny the permit, the applicant will be advised in writing of the reason(s) for denial. If the final decision is to issue the permit and a standard individual permit form will be used, the issuing official will forward the permit to the applicant for signature accepting the conditions of the permit. The permit is not valid until signed by the issuing official. Letters of permission require only the signature of the issuing official. Final action on the permit application is the signature on the letter notifying the applicant of the denial of the permit or signature of the issuing official on the authorizing document.
The district engineer will publish monthly a list of permits issued or denied during the previous month. The list will identify each action by public notice number, name of applicant, and brief description of activity involved. It will also note that relevant environmental documents and the SOF's or ROD's are available upon written request and, where applicable, upon the payment of administrative fees. This list will be distributed to all persons who may have an interest in any of the public notices listed.
Copies of permits will be furnished to other agencies in appropriate cases as follows:
If the activity involves the construction of structures to enhance fish propagation (e.g., fishing reefs) along the coasts of the United States, to the Defense Mapping Agency, Hydrographic Center and National Ocean Service as in paragraph (a)(9)(i) of this section and to the Director, Office of Marine Recreational Fisheries, National Marine Fisheries Service, Washington, DC 20235.
If the activity involves the erection of an aerial transmission line, submerged cable, or submerged pipeline across a navigable water of the United States, to the Charting and Geodetic Services N/CG222, National Ocean Service NOAA, Rockville, Maryland 20852.
If the activity is listed in paragraphs (a)(9) (i), (ii), or (iii) of this section, or involves the transportation of dredged material for the purpose of dumping it in ocean waters, to the appropriate District Commander, U.S. Coast Guard.
No permit will be granted until required certification has been obtained or has been waived. A waiver may be explicit, or will be deemed to occur if the certifying agency fails or refuses to act on a request for certification within sixty days after receipt of such a request unless the district engineer determines a shorter or longer period is reasonable for the state to act. In determining whether or not a waiver period has commenced or waiver has occurred, the district engineer will verify that the certifying agency has received a valid request for certification. If, however, special circumstances identified by the district engineer require that action on an application be taken within a more limited period of time, the district engineer shall determine a reasonable lesser period of time, advise the certifying agency of the need for action by a particular date, and that, if certification is not received by that date, it will be considered that the requirement for certification has been waived. Similarly, if it appears that circumstances may reasonably require a period of time longer than sixty days, the district engineer, based on information provided by the certifying agency, will determine a longer reasonable period of time, not to exceed one year, at which time a waiver will be deemed to occur.
If the applicant is not a federal agency and the application involves an activity affecting the coastal zone, the district engineer shall obtain from the applicant a certification that his proposed activity complies with and will be conducted in a manner that is consistent with the approved state CZM Program. Upon receipt of the certification, the district engineer will forward a copy of the public notice (which will include the applicant's certification statement) to the state coastal zone agency and request its concurrence or objection. If the state agency objects to the certification or issues a decision indicating that the proposed activity requires further review, the district engineer shall not issue the permit until the state concurs with the certification statement or the Secretary of Commerce determines that the proposed activity is consistent with the purposes of the CZM Act or is necessary in the interest of national security. If the state agency fails to concur or object to a certification statement within six months of the state agency's receipt of the certification statement, state agency concurrence with the certification statement shall be conclusively presumed. District engineers will seek agreements with state CZM agencies that the agency's failure to provide comments during the public notice comment period will be considered as a concurrence with the certification or waiver of the right to concur or non-concur.
If the applicant is requesting a permit for work on Indian reservation lands which are in the coastal zone, the district engineer shall treat the application in the same manner as prescribed for a Federal applicant in paragraph (b)(2)(i) of this section. However, if the applicant is requesting a permit on non-trust Indian lands, and the state CZM agency has decided to assert jurisdiction over such lands, the district engineer shall treat the application in the same manner as prescribed for a non-Federal applicant in paragraph (b)(2)(ii) of this section.
The comment period on the public notice should be for a reasonable period of time within which interested parties may express their views concerning the permit. The comment period should not be more than 30 days nor less than 15 days from the date of the notice. Before designating comment periods less than 30 days, the district engineer will consider: (i) Whether the proposal is routine or noncontroversial, (ii) mail time and need for comments from remote areas, (iii) comments from similar proposals, and (iv) the need for a site visit. After considering the length of the original comment period, paragraphs d(2)(i) through d(2)(iv) above, and other pertinent factors, the district engineer may extend the comment period up to an additional 30 days if warranted.
District engineers will decide on all applications not later than 60 days after receipt of a complete application, unless (i) precluded as a matter of law or procedures required by law (see below), (ii) the case must be referred to higher authority (see ^F^Z325.8 of this Part), (iii) the comment period is extended, (iv) a timely submittal of information or comments is not received from the applicant, (v) the processing is suspended at the request of the applicant, or (vi) information needed by the district engineer for a decision on the application cannot reasonably be obtained within the 60-day period. Once the cause for preventing the decision from being made within the normal 60-day period has been satisfied or eliminated, the 60-day clock will start running again from where it was suspended. For example, if the comment period is extended by 30 days, the district engineer will, absent other restraints, decide on the application within 90 days of receipt of a complete application. Certain laws (e.g., the Clean Water Act, the CZM Act, the National Environmental Policy Act, the National Historic Preservation Act, the Preservation of Historical and Archeological Data Act, the Endangered Species Act, the Wild and Scenic Rivers Act, and the Marine Protection, Research and Sanctuaries Act) require procedures such as state or other federal agency certifications, public hearings, environmental impact statements, consultation, special studies, and testing which may prevent district engineers from being able to decide certain applications within 60 days.
Once the district engineer has sufficient information to make his public interest determination, he should decide the permit application even though other agencies which may have regulatory jurisdiction have not yet granted their authorizations, except where such authorizations are, by federal law, a prerequisite to making a decision on the DA permit application. Permits granted prior to other (non-prerequisite) authorizations by other agencies should, where appropriate, be conditioned in such manner as to give those other authorities an opportunity to undertake their review without the applicant biasing such review by making substantial resource commitments on the basis of the DA permit. In unusual cases the district engineer may decide that due to the nature or scope of a specific proposal, it would be prudent to defer taking final action until another agency has acted on its authorization. In such cases, he may advise the other agency of his position on the DA permit while deferring his final decision.
The applicant will be given a reasonable time, not to exceed 30 days, to respond to requests of the district engineer. The district engineer may make such requests by certified letter and clearly inform the applicant that if he does not respond with the requested information or a justification why additional time is necessary, then his application will be considered withdrawn or a final decision will be made, whichever is appropriate. If additional time is requested, the district engineer will either grant the time, make a final decision, or consider the application as withdrawn.
The time requirements in these regulations are in terms of calendar days rather than in terms of working days.
In those cases subject to section 404 of the Clean Water Act after:
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
A 401 certification has been issued or waived and, if appropriate, CZM consistency concurrence obtained or presumed either on a generic or individual basis.
Section 325.3 - Public notice.
In cases involving construction of artificial islands,
installations and other devices on outer continental shelf lands which are
under mineral lease from the Department of the Interior, the notice will
contain the following statement:
In addition to the general distribution of public notices
cited above, notices will be sent to other addressees in appropriate cases as
follows:
If the activity would involve construction of fixed
structures or artificial islands on the outer continental shelf or in the
territorial seas, to the Assistant Secretary of Defense (Manpower,
Installations, and Logistics (ASD(MI&L)), Washington, D.C. 20310; the Director,
Defense Mapping Agency (Hydrographic Center) Washington, DC 20390, Attention,
Code NS12; and the Charting and Geodetic Services, N/CG222, National Ocean
Service NOAA, Rockville, Maryland 20852, and to affected military installations
and activities.
If the activity involves the construction of structures to
enhance fish propagation (e.g., fishing reefs) along the coasts of the United
States, to the Director, Office of Marine Recreational Fisheries, National
Marine Fisheries Service, Washington, D.C. 20235.
If the activity involves the construction of structures which
may affect aircraft operations or for purposes associated with seaplane
operations, to the Regional Director of the Federal Aviation Administration.
If the activity would be in connection with a foreign-trade
zone, to the Executive Secretary, Foreign-Trade Zones Board, Department of
Commerce, Washington, D.C. 20230 and to the appropriate District Director of
Customs as Resident Representative, Foreign-Trade Zones Board.
District engineers will update public notice mailing lists at
least once every two years.
Where appropriate, the district engineer may take into account the
existence of controls imposed under other federal, state, or local programs
which would achieve the objective of the desired condition, or the existence of
an enforceable agreement between the applicant and another party concerned
with the resource in question, in determining whether a proposal complies with
the 404(b)(1) guidelines, ocean dumping criteria, and other applicable
statutes, and is not contrary to the public interest. In such cases, the
Department of the Army permit will be conditioned to state that material
changes in, or a failure to implement and enforce such program or agreement,
will be grounds for modifying, suspending, or revoking the permit.
Such conditions may be accomplished on-site, or may be accomplished
off-site for mitigation of significant losses which are specifically
identifiable, reasonably likely to occur, and of importance to the human or
aquatic environment.
If the district engineer determines that special conditions are
necessary to insure the proposal will not be contrary to the public interest,
but those conditions would not be reasonably implementable or enforceable, he
will deny the permit.
Bonds. If the district engineer has reason to consider that the
permittee might be prevented from completing work which is necessary to protect
the public interest, he may require the permittee to post a bond of sufficient
amount to indemnify the government against any loss as a result of corrective
action it might take.
The general conditions included in ENG Form 1721 are normally
applicable to all permits; however, some conditions may not apply to certain
permits and may be deleted by the issuing officer. Special conditions
applicable to the specific activity will be included in the permit as necessary
to protect the public interest in accordance with Section 325.4 of this Part.
When the recommended decision is contrary to the written position of
the Governor of the state in which the work would be performed;
When there is substantial doubt as to authority, law, regulations,
or policies applicable to the proposed activity;
When higher authority requests the application be forwarded for
decision; or
When the district engineer is precluded by law or procedures
required by law from taking final action on the application (e.g. Section 9 of
the Rivers and Harbors Act of 1899, or territorial sea baseline changes).
When there is substantial doubt as to authority, law, regulations,
or policies applicable to the proposed activity;
When higher authority requests the application be forwarded for
decision; or
When the division engineer is precluded by law or procedures
required by law from taking final action on the application.
District engineers are authorized to determine the area defined by the
terms "navigable waters of the United States" and "waters of the United States"
except:
When EPA makes a Section 404 jurisdiction determination under its
authority.
The district engineer will establish and maintain a
program to assure that potential applicants for permits are informed of the
requirements of this regulation and of the steps required to obtain permits for
activities in waters of the United States or ocean waters. Whenever the
district engineer becomes aware of plans being developed by either private or
public entities which might require permits for implementation, he should
advise the potential applicant in writing of the statutory requirements and the
provisions of this regulation. Whenever the district engineer is aware of
changes in Corps of Engineers regulatory jurisdiction, he will issue
appropriate public notices.
A. PERMIT FORM
B. SPECIAL CONDITIONS.
No special conditions will be preprinted on the
permit form. The following and other special conditions should be added, as
appropriate, in the space provided after the general conditions or on a
referenced continuation sheet:
Procedures for the Regulatory Program
Scope of Analysis.
The district engineer is considered to have control and responsibility
for portions of the project beyond the limits of Corps jurisdiction where the
Federal involvement is sufficient to turn an essentially private action into a
federal action. Theses are cases where the environmental consequences are
essentially products of the Corps permit action.
Typical factors to be considered in determining whether sufficient "control
and responsibility" exists include:
Similarly, if an applicant seeks a DA permit to fill waters or wetlands
on which other construction or work is proposed, the control and responsibility
of the Corps, as well as its overall Federal involvement would extend to the
portions of the project to be located on the permitted fill. However,
the NEPA review would be extended to the entire project, including portions
outside waters of the United States, only if sufficient Federal control and
responsibility over the entire project is determined to exist; that is, if the
regulated activities, and those activities involving regulation, funding, etc.
by other Federal agencies, comprise a substantial portion of the overall
project. In any case, once the scope of analysis has been defined,
the NEPA analysis for that action should include direct, indirect and
cumulative impacts on all Federal interests within the purview of the NEPA
statute. The district engineer should, whenever practicable, incorporate
by reference and rely upon the reviews of other Federal and State agencies.
For those regulated activities that comprise merely a link in a
transportation or utility transmission project, the scope of analysis should
address the Federal action, i.e., the specific activity requiring a DA
permit and any other portion of the project that is within the control or
responsibility of the Corps of Engineers (or other Federal agencies).
For example, a 50-mile electrical transmission cable crossing a
1 1/4 mile wide river that is a navigable water of the United States requires
a DA permit. Neither the origin and destination of the cable not its
route to and from the navigable water, except as the route applies to the
location and configuration of the crossing, are within the control of the
Corps of Engineers. Those matters would not be included in the scope of
analysis which, in this case, would address the impacts of the specific
cable crossing.
Conversely, for those activities that require a DA permit for a major
portion of a transportation or utility transmission project, so that the
Corps permit bears upon the origin and destination as well as the route
of the project outside the Corps regulatory boundaries, the scope of
analysis should include those portions of the project outside the
boundaries of the Corps section 10/404 regulatory jurisdiction. To use
the same example, if 30 miles of the 50-mile transmission line crossed
wetlands or other "waters of the United States," the scope of
analysis should reflect impacts on the whole 50-mile transmission line.
For those activities that require a DA permit for a major portion of a
shoreside facility, the scope of analysis should extend to upland portions
of the facility. For example, a shipping terminal normally requires
dredging, wharves, bulkheads, berthing areas and disposal of dredge
material in order to function. Permits for such activities are normally
considered sufficient Federal control and responsibility to warrant
extending the scope of analysis to include the upland portions of the
facility.
In all cases, the scope of analysis used for analyzing both impacts
and alternatives should be the same scope of analysis used for analyzing
the benefits of a proposal.
Information required for an EIS also may be furnished by the
applicant or a consultant employed by the applicant. Where this
approach is followed, the district engineer will:
AUTHORITY: 33 U.S.C. 401 et seq., 33 U.S.C. 1344, 33 U.S.C. 1413
Applicable statutory authority or authorities;
The name and address of the applicant;
The name or title, address and telephone number of the Corps
employee from whom additional information concerning the application may be
obtained;
The location of the proposed activity;
A brief description of the proposed activity, its purpose and
intended use, so as to provide sufficient information concerning the nature of
the activity to generate meaningful comments, including a description of the
type of structures, if any, to be erected on fills or pile or float-supported
platforms, and a description of the type, composition, and quantity of
materials to be discharged or disposed of in the ocean;
A plan and elevation drawing showing the general and specific
site location and character of all proposed activities, including the size
relationship of the proposed structures to the size of the impacted waterway
and depth of water in the area;
If the proposed activity would occur in the territorial seas
or ocean waters, a description of the activity's relationship to the baseline
from which the territorial sea is measured;
A list of other government authorizations obtained or
requested by the applicant, including required certifications relative to water
quality, coastal zone management, or marine sanctuaries;
If appropriate, a statement that the activity is a categorical
exclusion for purposes of NEPA (see paragraph 7 of Appendix B to 33 CFR Part
230);
A statement of the district engineer's current knowledge on
historic properties;
A statement of the district engineer's current knowledge on
endangered species (see section 325.2 (b)(5));
A statement(s) on evaluation factors (see section 325.3(c));
Any other available information which may assist interested
parties in evaluating the likely impact of the proposed activity, if any, on
factors affecting the public interest;
The comment period based on section 325.2(d)(2);
A statement that any person may request, in writing, within
the comment period specified in the notice, that a public hearing be held to
consider the application. Requests for public hearings shall state, with
particularity, the reasons for holding a public hearing;
For non-federal applications in states with an approved CZM
Plan, a statement on compliance with the approved Plan; and
In addition, for section 103 (ocean dumping) activities:
The specific location of the proposed disposal site and its
physical boundaries;
) A statement as to whether the proposed disposal site has been
designated for use by the Administrator, EPA, pursuant to section 102(c) of
the Act;
If the proposed disposal site has not been designated by the
Administrator, EPA, a description of the characteristics of the proposed
disposal site and an explanation as to why no previously designated disposal
site is feasible;
A brief description of known dredged material discharges at
the proposed disposal site;
Existence and documented effects of other authorized disposals
that have been made in the disposal area (e.g., heavy metal background reading
and organic carbon content);
An estimate of the length of time during which disposal would
continue at the proposed site; and
Information on the characteristics and composition of the
dredged material.
Except as provided in paragraph (c)(3) of this section, the
following will be included:
"The decision whether to issue a permit will be based on an evaluation of
the probable impact including cumulative impacts of the proposed activity on
the public interest. That decision will reflect the national concern for both
protection and utilization of important resources. The benefit which
reasonably may be expected to accrue from the proposal must be balanced against
its reasonably foreseeable detriments. All factors which may be relevant to
the proposal will be considered including the cumulative effects thereof; among
those are conservation, economics, aesthetics, general environmental concerns,
wetlands, historic properties, fish and wildlife values, flood hazards,
floodplain values, land use, navigation, shoreline erosion and accretion,
recreation, water supply and conservation, water quality, energy needs, safety,
food and fiber production, mineral needs, considerations of property ownership
and, in general, the needs and welfare of the people."
If the activity would involve the discharge of dredged or fill
material into the waters of the United States or the transportation of dredged
material for the purpose of disposing of it in ocean waters, the public notice
shall also indicate that the evaluation of the impact of the activity on the
public interest will include application of the guidelines promulgated by the
Administrator, EPA, (40 CFR Part 230) or of the criteria established under
authority of section 102(a) of the Marine Protection, Research and Sanctuaries
Act of 1972, as amended (40 CFR Parts 220 to 229), as appropriate. (See 33 CFR
Parts 323 and 324).
"The decision as to whether a permit will be
issued will be based on an evaluation of the impact of the proposed work on
navigation and national security."
Public notices will be distributed for posting in post offices
or other appropriate public places in the vicinity of the site of the proposed
work and will be sent to the applicant, to appropriate city and county
officials, to adjoining property owners, to appropriate state agencies, to
appropriate Indian Tribes or tribal representatives, to concerned Federal agencies, to local, regional and national shipping and other concerned business
and conservation organizations, to appropriate River Basin Commissions, to appropriate state and areawide clearing houses as prescribed by OMB Circular A-95, to local news media and to any other interested party. Copies of public
notices will be sent to all parties who have specifically requested copies of
public notices, to the U.S. Senators and Representatives for the area where
the work is to be performed, the field representative of the Secretary of the
Interior, the Regional Director of the Fish and Wildlife Service, the Regional
Director of the National Park Service, the Regional Administrator of the
Environmental Protection Agency (EPA), the Regional Director of the National
Marine Fisheries Service of the National Oceanic and Atmospheric Administration
(NOAA), the head of the state agency responsible for fish and wildlife
resources, the State Historic Preservation Officer, and the District Commander,
U.S. Coast Guard.
If the activity would involve structures or dredging along the shores of the seas or Great Lakes, to the Coastal Engineering Research Center, Washington, DC 20016.
It is presumed that all interested parties and agencies will wish to respond to public notices; therefore, a lack of response will be
interpreted as meaning that there is no objection to the proposed project. A
copy of the public notice with the list of the addresses to whom the notice was
sent will be included in the record. If a question develops with respect to
an activity for which another agency has responsibility and that other agency
has not responded to the public notice, the district engineer may request its
comments. Whenever a response to a public notice has been received from a
member of Congress, either in behalf of a constituent or himself, the district
engineer will inform the member of Congress of the final decision.
Section 325.4 - Conditioning of permits.
District engineers will add special conditions to Department of the
Army permits when such conditions are necessary to satisfy legal requirements
or to otherwise satisfy the public interest requirement. Permit conditions
will be directly related to the impacts of the proposal, appropriate to the
scope and degree of those impacts, and reasonably enforceable.
Legal requirements which may be satisfied by means of Corps permit conditions include compliance with the 404(b)(1) guidelines, the EPA ocean dumping criteria, the Endangered Species Act, and requirements imposed by
conditions on state Section 401 water quality certifications.
District engineers are authorized to add special conditions,
exclusive of paragraph (a) of this section, at the applicant's request or to
clarify the permit application.
Section 325.5 - Forms of permits.
Section 325.6 - Duration of permits.
DA permits under this regulation will be in the form of individual
permits or general permits. The basic format shall be ENG Form 1721, DA Permit
(Appendix A).
Section 325.7 - Modification, suspension, or revocation of permits.
Section 325.8 - Authority to issue or deny permits.
When a referral is required by a written agreement between the head
of a Federal agency and the Secretary of the Army;
When a referral is required by a written agreement between the head
of a Federal agency and the Secretary of the Army;
Section 325.9 - Authority to determine jurisdiction.
When a determination of navigability is made pursuant to 33 CFR
329.14 (division engineers have this authority); or
Section 325.10 - Publicity.
Appendix A - Permit Form and Special Conditions
DEPARTMENT OF THE ARMY PERMIT
Permittee _______________________________________________
Permit No. _______________________________________________
Issuing Office ___________________________________________
NOTE. The term "you" and its derivatives, as used in this permit, means the
permittee or any future transferee. The term "this office" refers to the
appropriate district or division office of the Corps of Engineers having
jurisdiction over the permitted activity or the appropriate official of that
office acting under the authority of the commanding officer.
You are authorized to perform work in accordance with the terms and conditions
specified below.
Project Description: (Describe the permitted activity and its intended use
with references to any attached plans or drawings that are considered to be a
part of the project description. Include a description of the types and
quantities of dredged or fill materials to be discharged in jurisdictional
waters.)
Project Location: (Where appropriate, provide the names of and the locations
on the waters where the permitted activity and any off-site disposals will take
place. Also, using name, distance, and direction, locate the permitted
activity in reference to a nearby landmark such as a town or city.)
Permit Conditions:
General Conditions:
1. The time limit for completing the work authorized ends on
________________. If you find that you need more time to complete the
authorized activity, submit your request for a time extension to this office
for consideration at least one month before the above date is reached.
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 or 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 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 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.
Special Conditions: (Add special conditions as required in this space with
reference to a continuation sheet if necessary.)
Further Information:
1. Congressional Authorities: You have been authorized to undertake the
activity described above pursuant to:
( ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).
( ) Section 404 of the Clean Water Act (33 U.S.C. 1344).
( ) Section 103 of the Marine Protection, Research and Sanctuaries Act
of 1972 (33 U.S.C. 1413).
2. Limits of this authorization.
a. This permit does not obviate the need to obtain other Federal, state,
or local authorizations required by law.
b. This permit does not grant any property rights or exclusive
privileges.
c. This permit does not authorize any injury to the property or rights
of others.
d. This permit does not authorize interference with any existing or
proposed Federal project.
3. Limits of Federal Liability. In issuing this permit, the Federal
Government does not assume any liability for the following:
a. Damages to the permitted project or uses thereof as a result of other
permitted or unpermitted activities or from natural causes.
b. Damages to the permitted project or uses thereof as a result of
current or future activities undertaken by or on behalf of the United States in
the public interest.
c. Damages to persons, property, or to other permitted or unpermitted
activities or structures caused by the activity authorized by this permit.
d. Design or construction deficiencies associated with the permitted
work.
e. Damage claims associated with any future modification, suspension, or
revocation of this permit.
4. Reliance on Applicant's Data: The determination of this office that
issuance of this permit is not contrary to the public interest was made in
reliance on the information you provided.
5. Reevaluation of Permit Decision. This office may reevaluate its
decision on this permit at any time the circumstances warrant. Circumstances
that could require a reevaluation include, but are not limited to, the
following:
a. You fail to comply with the terms and conditions of this permit.
b. The information provided by you in support of your permit application
proves to have been false, incomplete, or inaccurate (See 4 above).
c. Significant new information surfaces which this office did not
consider in reaching the original public interest decision.
Such a reevaluation may result in a determination that it is appropriate to
use the suspension, modification, and revocation procedures contained in 33 CFR
325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and
326.5. The referenced enforcement procedures provide for the issuance of an
administrative order requiring you to comply with the terms and conditions of
your permit and for the initiation of legal action where appropriate. You will
be required to pay for any corrective measures ordered by this office, and if
you fail to comply with such directive, this office may in certain situations
(such as those specified in 33 CFR 209.170) accomplish the corrective measures
by contract or otherwise and bill you for the cost.
6. Extensions. General condition 1 establishes a time limit for the
completion of the activity authorized by this permit. Unless there are
circumstances requiring either a prompt completion of the authorized activity
or a reevaluation of the public interest decision, the Corps will normally give
favorable consideration to a request for an extension of this time limit.
Your signature below, as permittee, indicates that you accept and agree
to comply with the terms and conditions of this permit.
__________________________________ ___________________________________
(Permittee) (Date)
This permit becomes effective when the Federal official, designated to act for
the Secretary of the Army, has signed below.
_________________________________ ___________________________________
(District Engineer) (Date)
When the structures or work authorized by this permit are still in existence
at the time the property is transferred, the terms and conditions of this
permit will continue to be binding on the new owner(s) of the property. To
validate the transfer of this permit and the associated liabilities associated
with compliance with its terms and conditions, have the transferee sign and
date below.
_________________________________ ___________________________________
(Transferee) (Date)
1. Your use of the permitted activity must not interfere with the
public's right to free navigation on all navigable waters of the United States.
2. You must have a copy of this permit available on the vessel used for
the authorized transportation and disposal of dredged material.
3. You must advise this office in writing, at least two weeks before you
start maintenance dredging activities under the authority of this permit.
4. You must install and maintain, at your expense, any safety lights and
signals prescribed by the United States Coast Guard (USCG), through
regulations or otherwise, on your authorized facilities. The USCG may be
reached at the following address and telephone number:
______________________________
______________________________
______________________________
______________________________
5. The condition below will be used when a Corps permit authorizes an
artificial reef, an aerial transmission line, a submerged cable or pipeline, or
a structure on the outer continental shelf.
National Ocean Service (NOS) has been notified of this authorization. You
must notify NOS and this office in writing, at least two weeks before you begin
work and upon completion of the activity authorized by this permit. Your
notification of completion must include a drawing which certifies the location
and configuration of the completed activity (a certified permit drawing may be
used). Notifications to NOS will be sent to the following address:
The Director
National Ocean Service (N/CG 222)
Rockville, Maryland 20852
6. The following condition should be used for every permit where legal
recordation of the permit would be reasonably practicable and recordation could
put a subsequent purchaser or owner of property on notice of permit
conditions.
You must take the actions required to record this permit with the Registrar of
Deeds or other appropriate official charged with the responsibility for
maintaining records of title to or interest in real property.
Appendix B - NEPA Implementation
Fixed or floating small private piers, small docks, boat hoists and boathouses.
Minority utility distribution and collection lines including irrigation;
Minor maintenance dredging using existing disposal sites;
Boat launching ramps;
All applications which qualify as letters of permission (as described at 33 CFR 325.5(b)(2)).
In some situations, a permit applicant may propose
to conduct a specific activity requiring a Department of the Army (DA) permit
(e.g., construction of a pier in a navigable water of the United States) which
is merely one component of a large project (e.g., construction of an oil
refinery on an upland area). The district engineer should establish the scope of
the NEPA document (e.g., the EA or EIS) to address the impacts of the specific
activity requiring the DA permit and those portions of the enitre project over
which the district engineer has sufficient control and responsibility to warrant
Federal review.
Whether or not the regulated activity compromises "merely a link" in a
corridor type project (e.g. a transportation or utility transmission project).
Whether there are aspects of the upland facility in the immediate
vicinity of the regulated activity which affect the location and configuration
of the regulated activity.
The extent to which the entire project will be within Corps
jurisdiction.
The extent of cumulative control and responsibility.
Federal control and responsibility will include the portions of the
project beyond the limits of Corps jurisdiction where the cumulative Federal
involvement of the Corps and other Federal agencies is sufficient to grant legal
control over such additional portions of the project. There are cases where the
environmental consequences of the additional portions of the projects are
essentially products of Federal financing, assistance, direction, regulation,
or approval(not including funding assistance solely in the form of general
revenue sharing funds, with no Federal agency control over the subsequent use
of such funds, and not including judicial or administrative civil or criminal
enforcement action).
In determining whether sufficient cumulative involvement exists to
expand the scope of Federal action the district engineer should consider
whether other Federal agencies are required to take Federal action under the
Fish and Wildlife Coordination Act (16 U.S.C. 661 et. seq.), the National
Historic Preservation Act of 1966 (U.S.C. 470 et seq.), The Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), Executive Order 11990, Protection of
Wetlands, (42 U.S.C. 4321 91977), and other environmental review
laws and executive orders.
The district engineer should also refer to paragraphs 8(b) and 8(c) of
this appendix for guidance on determining whether it should be the lead or
cooperating agency in these situations.
These factors will be added to or modified through guidance as additional
field experience develops.
The district engineer may prepare an EIS, or may obtain information
needed to prepare an EIS, either with his own staff or by contract. In
choosing a contractor who reports directly to the district engineer, the
procedures of 40 CFR 1506.5(c) will be followed.
advise the
applicant and/or his consultant of the Corps information requirements,
and
(ii) meet with the applicant and/or his consultant from time to
time and provide him with the district engineer's views regarding
adequacy of the data that are being developed (including how the
district engineer will view such data in light of any possible
conflicts of interest).
The applicant and/or his consultant may accept or reject the
district engineer's guidance. The district engineer, however, may
after specifying the information in contention, require the applicant
to resubmit any previously submitted data which the district engineer
considers inadequate or inaccurate. In all cases, the district
engineer should document in the record the Corps independent
evaluation of the information and its accuracy, as required by 40 CFR
1506.5(a).
Ref. 40 CFR 1502.11.
The ``person at the agency who can supply further
information'' (40 CFR 1502.11(c) is the project manager handling that
permit application.
The cover sheet should identify the EIS as a Corps permit
action and state the authorities (sections 9, 10, 404, 103, etc.)
under which the Corps is exerting its jurisdiction.
Only reasonable alternatives need be considered in detail, as
specified in 40 CFR 1502.14(a). Reasonable alternatives must be those
that are feasible and such feasibility must focus on the
accomplishment of the underlying purpose and need (of the applicant or
the public) that would be satisfied by the proposed Federal action
(permit issuance). The alternatives analysis should be thorough
enough to use for both the public interest review and the 404(b)(1)
guidelines (40 CFR part 230) where applicable. Those alternatives
that are unavailable to the applicant, whether or not they require
Federal action (permits), should normally be included in the analysis
of the no-Federal-action (denial) alternative. Such alternatives
and objective evaluation of the public interest and a fully informed
decision regarding the permit application.
The ``no-action'' alternative is one which results in no
construction requiring a Corps permit. It may be brought by (1) the
applicant electing to modify his proposal to eliminate work under the
jurisdiction of the Corps or (2) by the denial of the permit.
District engineers, when evaluating this alternative, should discuss,
when appropriate, the consequences of other likely uses of a project
site, should the permit be denied.
The EIS should discuss geographic alternatives, e.g., changes
in location and other site specific variables, and functional
alternatives, e.g., project substitutes and design modifications.
The Corps shall not prepare a cost-benefit analysis for
projects requiring a Corps permit. 40 CFR 1502.23 states that the
weighing of the various alternatives need not be displayed in a
cost-benefit analysis and ``* * * should not be when there are
important qualitative considerations.'' The EIS should, however,
indicate any cost considerations that are likely to be relevant to a
decision.
Mitigation is defined in 40 CFR 1508.20, and Federal action
agencies are directed in 40 CFR 1502.14 to include appropriate
mitigation measures. Guidance on the conditioning of permits to
extent of mitigation conditions are dependent on the results of the
public interest review in 33 CFR 320.4.
Appendix C - Procedures for the Protection of Historic Properties