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USACE Regulatory
Program
1. What are the Corps of Engineers' regulatory authorities?
Three statutes grant the Corps authority to regulate certain activities in waters and wetlands:
Section 10 of the Rivers and Harbors Act of 1899 requires approval prior to the accomplishment of any work in, over, or under navigable waters of the United States, or which affects the course, location, condition or capacity of such waters.
Typical activities requiring Section 10 permits include:
- Construction of piers, wharves, breakwaters, bulkheads, jetties, weirs, dolphins, marinas, ramps, floats, intake structures, and cable or pipeline crossings.
- Work such as dredging or disposal of dredged material.
- Excavation, filling, or other modifications to navigable waters of the U.S.
Section 404 of the Clean Water Act requires approval prior to discharging dredged or fill material into the waters of the United States.
Typical activities requiring Section 404 permits include:
- Discharging fill or dredged material in waters of the U.S., including 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.
Certain activities are exempt from Section 404 permit requirements.
Section 103 of the Marine Protection Research and Sanctuaries Act regulates the transport of dredged material, an activity that is not usually a part of land development
The Corps has no power to regulate development activities that fall outside the scope of these statutes.
2. Does the Corps regulate water quality?
No. Congress granted that authority to other agencies. Under the Clean Water Act, the Environmental Protection Agency (EPA) and authorized state and tribal governments promulgate and enforce water quality standards. The Corps cannot issue an individual permit until the applicant obtains water quality certification from EPA or the appropriate state or tribal government and does not issue the permit until all water quality concerns raised by the EPA have been addressed.
3. Who protects Endangered Species?
Under the Endangered Species Act, all federal agencies are obligated to conserve endangered species and are legally required to assure that activities which they fund, authorize or carryout are "not likely to jeopardize the continued existence of any endangered or threatened species or result in destruction or adverse modification of its critical habitat." Two "resource agencies," United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) have the primary jurisdiction.
4. So what does the Endangered Species Act have to do with Corps permitting?
The Corps cannot issue its Section 10 or Section 404 permits until it satisfies its obligation to consult with the US Fish and Wildlife Service, for land-based species, or the National Marine Fisheries Service for aquatic species. In processing applications received, the Corps must ask the resource agencies whether protected species are in the area. If protected species may be in the area, the Corps must prepare a biological assessment evaluating any potential impacts. If the Corps and the resource agencies concur that there is no jeopardy, the permit can be issued. Otherwise, no permit can be issued until all protected species issues are resolved.
Content Updated: April 2009
