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Army Corps of Engineers

Overview

The following provides an overview of the U.S. Army Corps of Engineers and its programs related to transportation. Topics include the following:

Background

The United States Army Corps of Engineers implements the regulatory and permitting program for any work, including construction and dredging, that occurs in the Nation’s waters, including wetlands. The Corps consists of about 34,600 civilian and 650 military engineers, scientists and other specialists who work on both engineering and environmental matters. It is organized geographically into eight divisions in the United States and 41 subordinate districts throughout the United States, Asia and Europe. The districts oversee project offices throughout the world. Divisions and districts are defined by watershed boundaries, not by states.

The corps' stated mission is to provide "quality, responsive engineering services to the nation," including planning, designing, building and operating water resources and other civil works projects such as navigation, flood control, environmental protection, and disaster response. Its mission also includes designing and managing the construction of military facilities for the Army and Air Force, and providing design and construction management support for other Defense and federal agencies through the corps' Interagency and International Services (IIS) program.

The IIS program provides reimbursable technical assistance to other federal agencies, state and local governments, Indian Nations, private U.S. firms, international organizations, and foreign governments. The corps has interagency service agreements with the Department of Transportation, including agreements with the Federal Aviation Administration, Federal Highway Administration, and U.S. Coast Guard.

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Wetlands and Waterways Regulation and Permitting

The mission of the Corps’ regulatory program is to protect the nation’s aquatic resources, while allowing reasonable development through "fair, flexible and balanced permit decisions."  It evaluates permit applications for essentially all construction activities that occur in the Nation’s waters, including wetlands. Corps permits are also necessary for any work, including construction and dredging, in the Nation’s navigable waters. The corps says it balances the reasonably foreseeable benefits and detriments of proposed projects, and makes permit decisions that recognize the essential values of the nation’s aquatic ecosystems to the general public, as well as the property rights of private citizens who want to use their land. During the permit process, the corps considers the views of other Federal, state and local agencies, interest groups, and the general public. Adverse impacts to the aquatic environment are offset by mitigation requirements, which may include restoring, enhancing, creating and preserving aquatic functions and values.

The corps has been involved in regulating activities in navigable waterways through the granting of permits since passage of the Rivers & Harbors Act of 1899. At first, this program was meant to prevent obstructions to navigation, although an early 20th century law gave the corps regulatory authority over the dumping of trash and sewage. Passage of the Clean Water Act in 1972 greatly broadened this role by giving the corps authority over dredging and filling in the "waters of the United States," including many wetlands. The Clean Water Act added what is commonly called Section 404 authority 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 U. S. is regulated under Section 402 of the Act. 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 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.

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. " Thus, Section 404 jurisdiction is defined as encompassing Section 10 waters plus their tributaries and adjacent wetlands and isolated waters where the use, degradation or destruction of such waters could affect interstate or foreign commerce.

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.

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Wetlands Delineation

A major aspect of the regulatory program is determining which areas qualify for protection as wetlands. In reaching these decisions, the Corps uses its 1987 Wetland Delineation Manual.

The Corps and the EPA define wetlands as follows:

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 generally include swamps, marshes, bogs, and similar areas.

Wetlands are areas that are covered by water or have waterlogged soils for long periods 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.

Section 404 requires that anyone interested in depositing dredged or fill material into "waters of the United States, including wetlands," must receive authorization for such activities. 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 the appropriate Corps District Office.

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Permitting

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.

The Corps states that, on average, individual permit decisions are made within two to three months from receipt of a complete application. In emergencies, decisions can be made in a matter of hours. Applications requiring Environmental Impact Statements (far less than one percent) average about three years to process.

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.

The following general criteria are considered in evaluating all permit applications:

  1. the relevant extent of public and private needs;
  2. where unresolved conflicts of resource use exist, the practicability of using reasonable alternative locations and methods to accomplish project purposes; and
  3. the extent and permanence of the beneficial and/or detrimental effects the proposed project may have on public and private uses to which the area is suited.

No permit is granted if the proposal is found to be contrary to the public interest.

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Alternate Forms of Permits

There are alternate forms of authorization used in certain prescribed situations. Letters of permission may be used where, in the opinion of the district engineer, the proposed work would be minor, not have significant individual or cumulative impact on environmental values, and should encounter no appreciable opposition. In such situations, the proposal is coordinated with all concerned fish and wildlife agencies, and generally adjacent property owners who might be affected by the proposal, but the public at large is not notified. The public interest balancing process is again central to the decision making process on letters of permission. Another form of authorization is the general permit. General permits are not normally developed for an individual applicant, but cover activities the Corps has identified as being substantially similar in nature and causing only minimal individual and cumulative environmental impacts. These permits may cover activities in a limited geographic area (e.g., county or state), a particular region of the county (e.g., group of contiguous states), or the nation. Processing, such permits closely parallels that for individual permits, with public notice, opportunity for hearing and detailed decision documentation.

A programmatic general permit is one founded on an existing state, local or other Federal agency program and designed to avoid duplication with that program. Nationwide general permits are issued by the Chief of Engineers through the Federal Register rulemaking process.

Public involvement plays a central role in the Corps' administration of its regulatory program. The major tools used to interact with the public are the public notice and public hearing. Any project on which an Environmental Impact Statement (EIS) will be prepared is subject to additional public involvement. The preparation of EISs is governed by regulations implementing the National Environmental Policy Act (NEPA).

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. The Corps' standard permit form contains a statement notifying the permittee that the Federal permit does not remove any requirement for state or local permits. This has the effect of making the Corps' permit unusable without these additional authorizations. If the state or local permit is denied before the Corps has made its decision, the Corps permit is also denied.

In addition to these requirements, the Corps' implementing regulations require that district engineers conduct additional evaluations on applications with potential for having an effect on a variety of special interests (e.g., Indian reservation lands, historic properties, endangered species, and wild and scenic rivers).

Any member of the public may challenge in court a Corps decision to issue or deny a permit. Generally, such a challenge alleges failure to comply with procedural requirements, such as NEPA documentation, the 404(b)(1) Guidelines, or the procedures in the Corps permit regulations.

For a more complete explanation of the Corps permitting process and links to relevant laws and regulations, please link to the Regulatory Program Overview (environment).

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NEPA/404 Merger Process

In 1985, the Federal Highway Administration, the Corps, the Environmental Protection Agency (EPA), U.S. Fish and Wildlife Service (FWS), and the National Marine Fisheries Services (NMFS) jointly convened a workgroup to develop guidance entitled "Applying the Section 404 Permit Process to Federal-aid Highway Projects." Better known as the "Red Book," [PDF 2.21mb] this document provides numerous measures to improve interagency coordination on Federal-aid highway projects, to emphasize innovative and cost-effective approaches, and to integrate the NEPA and Section 404 permit processes. On May 1, 1992, the USDOT, EPA, and Department of the Army issued a Memorandum of Agreement (MOA) on Implementation of the Intermodal Surface Transportation Efficiency Act (ISTEA). This MOA made the Red Book official policy for DOT, EPA, and the COE, establishing initiatives to improve the regulation and reduce regulatory inefficiencies of transportation projects under Section 404 of the Clean Water Act without diminishing protection of the Nation's valuable aquatic resources.

The Corps, operating on behalf of the Secretary of Defense, also is a member of the Interagency Task Force established under the Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Reviews. The Task Force is charged with promoting interagency cooperation and establishment of appropriate mechanisms to coordinate Federal, State, tribal, and local agency consultation, review, approval, and permitting of transportation infrastructure projects.

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Wetlands Mitigation

The Intermodal Surface Transportation Efficiency Act (ISTEA) and the Transportation Equity Act for the 21st Century (TEA-21), both recognized changes in wetlands management regulations, procedures and processes, and included important new authorities for participation in costs of wetlands mitigation with Federal transportation funds. Accordingly, the FHWA decided to update and revise its regulation concerning mitigation of wetlands [See Mitigation of Impacts to Wetlands and Natural Habitat - Final Rule [PDF 170kb] ( 65 FR 82913; 12/29/00)]. TEA-21 also established a preference for mitigation banking to compensate for unavoidable losses to wetlands or other natural habitat caused by transportation projects receiving Federal assistance under Title 23 of the US Code. [See Federal Guidance on the Use of the TEA-21 Preference for Mitigation Banking to fulfill Mitigation Requirements under Section 404 of the Clean Water Act]

On December 24, 2002, EPA and the Army Corps of Engineers released the National Wetlands Mitigation Action Plan. At the same time, the Corps published Regulatory Guidance Letter (RGL) 02-2, Guidance on Compensatory Mitigation Projects for Aquatic Resources Under the Corps Regulatory Program.  The action plan furthers the federal commitment to the goal of "no net loss" of the nation's wetlands, and represents a 3-year program based on improved mitigation site selection, more effective performance monitoring, and development of interagency mitigation databases which accurately reflect the performance of compensatory mitigation sites. The plan has a near term objective of increasing the functions and values of the nation's wetlands and other aquatic resources. It also emphasizes a watershed approach to mitigation based on replacement of impacted or lost aquatic functions and values. It commits the agencies to develop additional guidance regarding decisions on mitigation alternatives, such as on-site versus off-site, and in-kind versus out-of-kind by the end of 2003 and the use of vegetated buffers and preservation as mitigation by 2004.

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Wetland Jurisdiction

The Supreme Court ruling in Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) raised new questions regarding the jurisdictional reach of federal wetlands regulations.  The ruling invalidated the so-called Migratory Bird Rule as a way to establish federal jurisdiction over certain isolated U.S. waters. On January 15, 2003, EPA and the Corps published an advance notice of proposed rulemaking seeking input on how to deal with the SWANCC decision in the Section 404 regulatory program. The ruling stated that the Corps cannot legally assert jurisdiction over intrastate, non-navigable isolated waters when the only tie to interstate commerce is the use of the waters by migratory birds. Essentially, this decision removed intrastate, non-navigable isolated waters from Section 404 coverage unless there is some other reason that demonstrates use of such waters for traditionally navigable or interstate commerce purposes.  The ANPRM requested public input on issues associated with the definition of “waters of the United States” and also solicited information or data from the general public, the scientific community, and Federal and State resource agencies on the implications of the SWANCC decision for jurisdictional decisions under the CWA. Within the same Notice, EPA and the Corps issued a joint policy memorandum which formally instructs their field offices to not assert jurisdiction over intrastate, non-navigable isolated waters when the only reason they have for asserting jurisdiction is the Migratory Bird Rule. If those offices intend to assert jurisdiction on other factors, such as interstate commerce on such waters, they must first seek the approval of their headquarters unit. [For further information, see Information and Guidance on Jurisdictional Coverage of Isolated, Non-Navigable Intrastate Waters, January 2003.]

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