Statutory and Regulatory Citations
| Author | Margaret 'Peggy' Strand/Lowell Rothschild |
| Pages | 287-514 |
Page 287
Title 33—Navigation and Navigable
Waters
Chapter II—Corps of Engineers,
Department of the Army, Department
of Defense
Part 320—General Regulatory Policies
§ 320.1 Purpose and scope.
(a) Regulatory approach of the Corps of Engineers.
(1) e U.S. Army Corps of Engineers has been
involved in regulating certa in activities in the
nation’s waters since 1890. Until 1968, the pri-
mary thrust of the Corps’ regulatory program wa s
the protection of navigation. As a result of several
new laws and judicial decisions, the program has
evolved to one involving the consideration of the
full public interest by balancing the favorable
impacts against the detrimental impacts. is is
known as the “public interest review.” e pro-
gram is one which reects the national concerns
for both the protection and utilization of impor-
tant resources.
(2) e Corps is a highly decentralized organiza-
tion. Most of the authority for administering the
regulatory program has been delegated to the
thirty-six district engineers and eleven division
engineers. A district engineer’s decision on an
approved jurisdictional determination, a permit
denial, or a declined individual permit is sub-
ject to an administrative appeal by the aected
party in accordance with the procedures and
authorities contained in 33 CFR Part 331. Such
administrative appea l must meet the criteria in 33
of that decision is allowed. e terms “approved
jurisdictional determination,” “permit denial,”
and “declined permit” are dened at 33 CFR
of any issued individual permit that a n applicant
has accepted, unless t he authorized work has not
started in waters of the United States, and that
issued permit is subsequently modied by the dis-
any administrative appeal available pursuant to 33
CFR Part 331 and receive a nal Corps decision
on the appealed action prior to ling a lawsuit in
the Federal courts (see 33 CFR 331.12).
(3) e Corps seeks to avoid unnecessary regu-
latory controls. e general permit program
described in 33 CFR parts 325 and 330 is the pri-
mary method of eliminating unnecessar y federal
control over activities which do not justify indi-
vidual control or which are adequately regulated
by another agency.
(4) e Corps is neither a proponent nor oppo-
nent of any permit proposal. However, the Corps
believes that applicants are due a timely decision.
Reducing unnecessar y paperwork and delays is a
continuing Corps goal.
(5) e Corps believes that state and federal regu-
latory programs should complement rather than
duplicate one another. e Corps uses general
permits,joint processing procedures, interagency
review, coordination, and authority transfers
(where authorized by law) to reduce duplication.
(6) e Corps has authorized its district engineers
to issue formal determinations concerning the
applicability of the Clean Water Act or the Riv-
ers and Harbors Act of 1899 to activities or tracts
of land and the applicability of general permits
or statutory exemptions to proposed activities. A
determination pursuant to this authorization shall
constitute a Corps nal agency action. Nothing
contained in this section is intended to aect any
authority EPA has under the Clean Water Act.
(b) Types of activities regulated. is part and the
parts that follow (33 CFR parts 321 through 330)
prescribe the statutory authorities, and general
and special policies and procedures applicable to
the review of applications for Department of the
Army (DA) permits for controlling certain act ivi-
ties in waters of the United States or the oceans.
is part identies the various federal statutes
which require that DA permits be issued before
these activities can be lawfully undertaken; and
related Federal laws and the general policies appli-
cable to the review of those activities. Part s 321
through 324 and 330 address special policies and
procedures applicable to the following specic
classes of activities:
Page 288 Wetlands Deskbook, 4th Edition
(1) Dams or dikes in navigable waters of the
United States (part 321);
(2) Other structures or work including excavation,
dredging, and/or disposal activities, in navigable
waters of the United States (part 322);
(3) Activities that alter or modify the course, con-
dition, location, or capacity of a navigable water of
the United States (part 322);
(4) Construction of articial isla nds, installations,
and other devices on the outer continental shelf
(part 322);
(5) Discharges of dredged or ll material into
waters of the United States (part 323);
(6) Activities involving the transportation of
dredged material for the purpose of disposal in
ocean waters (part 324); and
(7) Nationwide general permits for certain catego-
ries of activities (part 330).
(c) Forms of authorization. DA permits for the
above described activities are issued under various
forms of authorization. ese include individual
permits that are issued following a rev iew of
individual applications and general permits t hat
authorize a category or categories of activities in
specic geographical regions or nationwide. e
term “general permit” as used in these regu la-
tions (33 CFR parts 320 through 330)refers to
both those regional permits issued by district
or division engineers on a regional basis and to
nationwide permits which are issued by the Chief
of Engineers through publication in the F
R and are applicable throughout the
nation. e nationwide permits are found in 33
CFR part 330. If an activity is covered by a gen-
eral permit, an application for a DA permit does
not have to be made. In such cases, a person must
only comply with the conditions contained in the
general permit to satisfy requirements of law for a
DA permit. In certain cases pre-notication may
be required before initiating construction. (See 33
CFR 330.7.)
(d) General instructions. General policies for evalu-
ating permit applications are found in this par t.
Special policies that relate to particular activities
are found in parts 321 through 324. e pro-
cedures for processing individual perm its and
general permits are contained in 33 CFR part
325. e terms “navigable waters of the United
States” and “waters of the United States” are used
frequently throughout these regulations, and it is
important from the outset that the reader under-
stand the dierence between the two. “Navigable
waters of the United States” are dened in 33
CFR part 329. ese are waters that are navigable
in the traditional sense where permits are required
for certain work or structures pursuant to Sec-
tions 9 and 10 of the Rivers and Harbors Act of
1899. “Waters of the United States” are dened
in 33 CFR part 328. ese waters include more
than navigable waters of the United States and
are the waters where permits are required for the
discharge of dredged or ll material pursuant to
section 404 of the Clean Water Act.
[51 FR 41220, Nov. 13, 1986, as amended at 64
FR 11714, Mar. 9, 1999; 65 FR 16492, Mar. 28,
2000]
§ 320.2 Authorities to issue permits.
(a) Section 9 of the Rivers and Harbors Act,
approved March 3, 1899 (33 U.S.C. 401) (here-
inafter referred to as sect ion 9), prohibits the
construction of any dam or dike across any navi-
gable water of the United States in the absence of
Congressional consent and approval of the plans
by the Chief of Engineers and the Secretary of
the Army. Where the navigable portions of the
water body 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 modication thereof are approved
by the Chief of Engineers and by the Secretar y of
the Army. e instrument of authorization is des-
ignated a permit (See 33 CFR part 321.) Section
9 also pertains to bridges and causeways but the
authority of the Secretary of the A rmy and Chief
of Engineers with respect to bridges and cau se-
ways was transferred to the Secretary of Transpor-
tation under the Department of Transportation
Act of October 15, 1966 (49 U.S.C. 1155g(6)(A)).
A DA permit pursuant to section 404 of the Clean
Water Act is required for the discharge of dredged
or ll material into waters of the United States
Statutory and Regulatory Citations: 33 CFR §§320-332 Page 289
associated with bridges and causeways. (See 33
CFR part 323.)
(b) Section 10 of the Rivers and Harbors Act
approved March 3, 1899, (33 U.S.C. 403) (herein-
after referred to as section 10), prohibits the unau-
thorized obstruction or alteration of any navigable
water of the United States. e construction of
any structure in or over any navigable water of the
United States, the excavating from or depositing
of material in such waters, or the accomplish-
ment of any other work aecting the course,
location,condition, or capacity of such waters is
unlawful u nless the work has been recommended
by the Chief of Engineers and authorized by the
Secretary of the A rmy. e instrument of autho-
rization is designated a permit. e authority of
the Secretary of the A rmy to prevent obstructions
to navigation in navigable waters of the United
States was extended to arti cial islands, installa-
tions, and other devices located on the seabed, to
the seaward limit of the outer continental shelf, by
section 4(f) of the Outer Continental Shelf Lands
Act of 1953 as amended (43 U.S.C. 1333(e)). (See
33 CFR part 322.)
(c) Section 11 of the Rivers and Harbors Act
approved March 3, 1899, (33 U.S.C. 404), autho-
rizes the Secretary of the Army to establish ha rbor
lines channelward of which no piers, whar ves,
bulkheads, or other works may be extended or
deposits made without approval of the Secretary
of the Army.Eective May 27, 1970, permits for
work shoreward of those lines must be obtained in
accordance with section 10 and, if applicable, sec-
tion 404 of theClean Water Act (see § 320.4(o) of
this part).
(d) Section 13 of the Rivers and Harbors Act
approved March 3, 1899, (33 U.S.C. 407), pro-
vides that the Secretar y of the Army, whenever the
Chief of Engineers determines that anchorage and
navigation will not be injured thereby, may permit
the discharge of refuse into navigable waters. In
the absence ofa permit, such discharge of refuse
is prohibited. While the prohibition of this sec-
tion, known as the Refuse Act, is still in eect, t he
permit authorityof the Secretary of the Army has
been superseded by the permit authority provided
the Administrator, Environmental Protection
Agency (EPA), and the states under sections 402
and 405 of the Clean Water Act (33 U.S.C. 1342
and 1345). (See 40 CFR parts 124 and 125.)
(e) Section 14 of the Rivers and Harbors Act
approved March 3, 1899, (33 U.S.C. 408), pro-
vides that the Secretar y of the Army, on the
recommendation of the Chief of Engineers, may
grant permission for the temporary occupation or
use of any sea wall, bulk head, jetty, dike, levee,
wharf, pier, or other work built by the United
States. is permission will be granted by an
appropriate real estate instrument in accordance
with existing rea l estate regulations.
(f) Section 404 of the Clea n Water Act (33
U.S.C. 1344) (hereinafter referred to as section
404) authorizes the Secretary of the Army, acting
through the Chief of Engineers, to issue perm its,
after notice and opportunity for public hearing ,
for the discharge of dredged or l l material into
the waters of the United States at specied dis-
posal sites. (See 33 CFR part 323.) e selection
and use of disposal sites will be in accordance with
guidelines developed by the Administrator of EPA
in conjunction with the Secretary of the Army and
published in 40 CFR part 230. If these guidelines
prohibit the selection or use of a disposal site, the
Chief of Engineers shall consider the economic
impact on navigation and anchorage of such a
prohibition in reaching his decision. Furthermore,
the Administrator ca n deny, prohibit, restrict or
withdraw the use of any dened area a s a disposal
site whenever he determines, after notice and
opportunity for public hearing and after consulta-
tion with the Secretary of the Army, that the dis-
charge of such materials into such area s will have
an unacceptable adverse eect on municipal water
supplies, shellsh beds and shery a reas, wildlife,
or recreational areas. (See 40 CFR part 230).
(g) Section 103 of the Marine Protection,
Research and Sanctuaries Act of 1972, as
amended (33 U.S.C. 1413) (hereinafter referred
to as section 103),authorizes the Secretary of the
Army, acting through the Chief of Engineers, to
issue permits, after notice and opportunity for
public hearing, for the transportation of dredged
material for the purpose of disposal in the ocean
where it is determined that the disposal will not
unreasonably degrade or endanger human health,
welfare, or amenities, or the marine environment,
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