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July 15, 2014
Understanding Corps permits for work in navigable waters
By Amanda Czepiel, JD, Senior Managing Editor

If work is conducted in navigable waters in the United States or dredged or fill materials are being discharged into such waters, chances are that a United States Army Corps of Engineers (Corps) permit is required. Performing unauthorized work in U.S. waters or failing to comply with permit terms can have serious consequences, including high fines and orders to restore areas at a steep cost.

What are the types of permits issued?

The Corps issues two types of permits: general permits for actions by private landowners that are similar in nature and will likely have a minor effect on wetlands, and individual permits for more significant actions. Ninety percent of permits issued are general permits.

Nationwide permits are general permits that authorize activities across the country. There are currently 49 nationwide permits, authorizing a variety of activities such as mooring buoys, residential developments, utility lines, road crossings, mining activities, wetland and stream restoration activities, and commercial shellfish aquaculture activities. Many states do not authorize all 49 nationwide permits for use within their borders; check with your regulating state agency or Corps district office to determine what permits are applicable in a specific jurisdiction. Regional general permits are also general permits and generally take the place of nationwide permits that have been suspended in a certain region or state.

Individual permits are site-specific and must be obtained before activity commences. They are subject to public notice, public hearing, and a case-by-case evaluation that typically involve a longer review period before a permit is issued.

Can the need for a permit be avoided?

According to the Corps, projects can be designed to eliminate the need for a Corps permit. If an activity is located in an area of tidal waters, the best way to avoid the need for a permit is to select a site that is above the high-tide line and avoids wetlands and other water bodies. When near freshwater, the Corps recommends staying above the ordinary high water and avoid wetlands adjacent to a stream or lake to dodge permit coverage.

Also, it is possible that a proposed activity qualifies for an exemption from permit coverage. Such activities include farming, ranching, plowing, seeding, minor drainage, upland soil and water conservation, irrigation ditches, and maintenance of structures, such as dams, dikes, and levees.

What are the chances of getting a permit?

Very good. According to the Corps, less than 3 percent of all permit requests are denied. The applicants that are denied are those that usually have refused to change the design, timing, or location of their proposed activity. If a permit is denied, an applicant may redesign the project and submit a new application.

And always remember: In most cases, activities occurring in wetlands and waters of the United States will also require permits from the state and applicable municipality.

The Corps and the EPA offer a self-audit checklist to determine the need for permit coverage.

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