Federal Rivers and Harbors Act Section 10 Permit (13-FD-e)
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits the unauthorized obstruction or alteration of any navigable water of the United States. See 33 CFR 320.2(b). Under 33 CFR 329.4 Navigable waters of the United States is defined as “those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” Developers must obtain a Department of Army permit from the U S Army Corps of Engineers (USACE) for any work or structures in, over, or under or affecting the course, location, or condition of navigable waters prior to undertaking the activity.
Regulations governing the Regulatory Program can be found at 33 CFR 320-332. Regulations specifically related to permits for structures in or affecting navigable waters of the United States can be found at 33 CFR 322.
In addition to the normal application review process, USACE has developed multiple general permits to authorize common activities that are minimally impacting both individually and cumulatively. These general permits are an expediant way to receive authorization for a project that has been designed to meet the terms and conditions of the general permit.
USACE uses three types of general permits: Nationwide Permits, Regional General Permits, and Programmatic General Permits. USACE's Regulatory program is implemented by 38 district offices and not all districts use all types of general permits. In addition, many districts have regional conditions on Nationwide Permits so when determining if the project meets the terms and conditions of a Nationwide Permit, first verify which district the project is in and then visit the district website for the regional conditions. District offices can also answer any questions regarding the terms and conditions and/or applicability of a certain general permit to a proposed activity. Some general permits do not require any notification to USACE to use them while others may require notice to and verification from USACE prior to use.
In those cases where the activity cannot be designed to meet the terms and conditions of a general permit, an individual permit is required. The Individual Permit can be a Letter of Permission which is also an abbreviated process that is primarily used for Section 10 only activities that have minor impacts and no appreciable opposition. The other type of individual permit is a Standard Individual Permit and is most often just called an “Individual Permit.” This process is more detailed and is the primary focus of the remainder of this section and the associated flow chart.
Note that regardless of the type of permit, USACE must also comply with Section 7 of the Endangered Species Act, Section 106 of the National Historic Preservation Act, and its Tribal Trust Responsibilities. Additional information may be required from the developer for USACE to comply with these laws but such processes are not discussed in detail in this section since they are applicable to any federal action associated with the proposed activity.
USACE may require compensatory mitigation for impacts to aquatic resources regardless of permit type. See 33 CFR 332 for more information.
The discussion below and flowchart assume that the developer already knows a permit is required. In cases where the developer is unsure if an aquatic feature, such as a wetland, at the potential project site is jurisdictional and subject to Section 10 permit requirements, he or she should contact USACE district early in the process, prior to the project design stage if possible, to discuss any information that may be needed by USACE to make a jurisdictional determination, such as a wetland delineation report. To avoid delays during the application review process, such information should be provided to USACE as early as practicable.
In many cases, power transmission lines will not require an individual permit because they have already been authorized by a general permit, such as Nationwide Permit #12 for Utility Lines. For a list of Nationwide permits and national conditions, see the U.S. Army Corps of Engineers' Nationwide Permit Information Website. See the appropriate district website for regional conditions that may apply to the Nationwide Permit or other regional or programmatic general permits that may be available for the proposed activity.
It is also important to note that USACE generally does not regulate the entire transmission line. Usually, permits from USACE are only required for the individual crossings of jurisdictional aquatic resources, including wetlands, although there are some cases where the entire line is within the USACE's jurisdiction. The USACE district can provide more details based on the specific proposal.
The nature of hydropower facilities often require that the developer obtain a Section 10 permit from USACE. However, in Scenic Hudson Preservation Conference v. Callaway, the court held that the Federal Power Act preempted the USACE’s authority to grant a Section 10 permit for the construction of a hydroelectric project subject to FERC’s licensing authority. When the hydropower project also requires the developer to obtain a hydropower license from FERC, under Federal Power Act Section 4(e) USACE still has authority to impose mandatory conditions on the FERC issued license to enforce applicable statutory and regulatory requirements such as those found in the Rivers and Harbors Act.
Rivers and Harbors Act Section 10 Permit Process
13-FD-e.1 to 13-FD-e.2 - Is the Developer Seeking to Obtain a FERC Hydropower License?
When the hydropower project requires the developer to obtain a hydropower license from FERC, under Federal Power Act Section 4(e) USACE has authority to impose mandatory conditions on FERC issued licenses to enforce applicable statutory and regulatory requirements such as those found in the Rivers and Harbors Act. USACE will impose mandatory conditions under FPA Section 4(e) in lieu of issuing a Section 10 permit under the RHA (2011 MOU Section VII(D)). In addition, a developer seeking to obtain a FERC hydropower license will likely not need to complete many of the steps in the Section 10 permitting process as described below, rather much of the process will interrelate with FERC's hydropower licensing process. However, although USACE will not issue a Section 10 Permit the process described below is still relevant when seeking a FERC hydropower license and should be understood.
13-FD-e.3 – Conduct Pre-Application Consultation for Major Applications
USACE will hold a pre-application consultation upon request by developers and in accordance with local procedures. See 33 CFR 325.1(b). The developer will be required to submit sufficient information to USACE to facilitate the pre-application meeting. Contact the appropriate district for the type of information needed. At the meeting, the USACE project manager will provide the developer with information related to the application, including criteria used to assess the project. This process should be brief but thorough enough to allow the potential applicant to begin addressing the viability of some more obvious potential alternatives in the application. More informal pre-application meetings can be held for minor project proposals.
13-FD-e.4 to 13-FD-e.5 – Is an Individual Permit Required?
The developer should first determine if the proposed activity qualifies for a general permit or contact the appropriate district if unsure. If there are no applicable general permits to fit the category of activity contemplated, the developer should contact the appropriate USACE district to determine whether an individual permit is necessary and if so, whether it is a Letter of Permission or a Standard Individual Permit.
13-FD-e.6 – Application for Department of the Army Permit, 33 CFR 325 (ENG Form 4345)
When an individual permit is required, the developer should submit the complete Application for Department of the Army Permit: Engineering Form 4345 to the appropriate USACE district office. Note some districts may have joint permit applications with local or state agencies so please review the appropriate district website for application materials.
According the 33 CFR 325.1(d)(1), the application must include:
- A complete description of the proposed activity including necessary drawings, sketches, or plans sufficient for public notice (detailed engineering plans and specifications are not required);
- The location, purpose and need for the proposed activity;
- Scheduling of the activity;
- The names and addresses of adjoining property owners;
- The location and dimensions of adjacent structures; and
- A list of authorizations required by other federal, interstate, state, or local agencies for the work, including all approvals received or denials already made.
Further requirements for specific activities are listed in 33 CFR 325.1(d)(3)-(7) and (9). The application is deemed complete when it contains sufficient information to issue a public notice, as defined by 33 CFR 325.3(a). See 33 CFR 325.1(d)(10).
13-FD-e.7 to 13-FD-e.8 – Review Application Materials for Completeness
According to 33 CFR 325.2(a)(2), the district engineer must review the application for completeness and either issue public notice if complete or notify the applicant if incomplete. The application completeness review and notification must be done within 15 days of receipt of the application.
13-FD-e.9 to 13-FD-e.10 – Prepare and Publish Public Notice of Application; Comment on the Application
Within 15 day or receipt of a complete application, the USACE district office will issue a public notice of the submitted application. See 33 CFR 325.2(a)(2). The Public notice will be issued in accordance with the standard procedures specified in 33 CFR 325.3. The notice should include the items listed in 33 CFR 325.3(a) and a description of factors used to evaluate the application. Any comments received will be sent to the applicant for a response. USACE must address all comments in its Administrative record.
Once the public notice is issued, the district engineer may require the developer to submit additional information that is essential for USACE to complete its NEPA documentation, public interest review, and/or to and comply with other laws such as Section 7 of the Endangered Species Act and Section 106 of the National Historic Preservation Act.
13-FD-e.11 – Hold Public Hearing (Optional)
Whenever a public hearing is needed for USACE to make a permit decision or upon request by any person, in writing, during the comment period, a public hearing will be held on the proposed permit decision. See 33 CFR 327.4. When a public hearing is requested, USACE will only hold one if it determines such a hearing is necessary to make an informed decision.
13-FD-e.12 to 13-FD-e.13 – Has the Proposed Project Received State 401 Certification?
Under section 401 of the Clean Water Act (CWA), a federal agency may not issue a license authorizing the construction or operation of a project unless the appropriate state agency first issues a water quality certification for the project or waives certification by failing or refusing to act on a request for certification within a reasonable period of time. 33 USC 1341(a)(1). In order to allow the state agency sufficient time to analyze the impacts of the project on water quality and to meet the deadline for demonstrating compliance with section 401 of the CWA, the developer should request water quality certification from the appropriate state authority early on in the FERC licensing process.
A USACE permit cannot be granted until the WQC is obtained or waived. See 33 CFR 325.2(b)(ii). Generally, a developer will apply to USACE and the WQC agency at the same time so the reviews can occur concurrently. Some USACE districts and WQC agencies use joint applications and issue joint public notices. Note it is the developer’s responsibility to notify each agency of changes required by another agency that could affect the application.
In Alaska, the Alaska Department of Environmental Conservation (ADEC) reviews and issues 401 Water Quality Certifications. ADEC reviews hydropower projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers in accordance with 18 AAC 15.180 and may issue a 401 WQC or waiver. For more information, see:
401 Water Quality Certification:
In California, the California State Water Resources Control Board and the regional water quality control boards implement Section 401 of the Clean Water Act. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:
In Colorado, the Colorado Department of Public Health and Environment Water Quality Control Division regulates water quality and wetlands through the State’s 401 Water Quality Certification Program. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:
In Indiana, the Indiana Department of Environmental Management reviews and issues 401 Water Quality Certifications for hydropower projects filed with the Federal Energy Regulatory Commission or the U.S. Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:
In Kentucky, the Kentucky Department of Environmental Protection reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:
In Minnesota, the Minnesota Pollution Control Agency reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:
In New York, the New York State Department of Environmental Conservation (DEC) Division of Water Resources reviews and issues 401 Water Quality Certifications. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:
In Pennsylvania, the Pennsylvania Department of Environmental Protection (“PADEP”) reviews and issues 401 Water Quality Certifications. PADEP reviews hydropower projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers and may issue a 401 Water Quality Certification or waiver. For more information, see:
In Tennessee, the Tennessee Department of Environment and Conservation reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:
In Vermont, the Vermont Department of Environmental Conservation regulates water quality and issues 401 Water Quality Certifications pursuant to the Clean Water Act. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:
In Washington, the Washington State Department of Ecology (WSDE) reviews and issues 401 Water Quality Certifications (WQC). The developer must submit a 401 WQC application for any hydropower project requiring a Federal Energy Regulatory Commission or US Army Corps of Engineers license, license amendment, or re-licensing. Washington currently does not require a 401 WQC for FERC exempted projects. For more information, see:
In West Virginia, the West Virginia Department of Environmental Protection reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:
13-FD-e.14 to 13-FD-e.15 – Has the Proposed Project Received a CZMA Consistency Determination?
The developer must also apply for and receive Coastal Zone Management Act consistency determinations from the State, if applicable, prior to USACE rendering a permit decision. It is the responsibility of the developer to apply for and receive such approvals. Again, this can be applied for concurrently with the USACE permit application.
For more information regarding CZMA determinations, see:
13-FD-e.16 to 13-FD-e.18 – Has Environmental Review Been Conducted?
The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental consequences of their proposed actions and any reasonable alternatives before undertaking a major federal action. The issuance of a permit by a federal agency is considered a major federal action. Consequently, a NEPA analysis must be performed before USACE can render a permit decision.
Depending on the category of activity involved, USACE must complete an Environmental Assessment (EA) and Finding of No Significance (FONSI), an Environmental Impact Statement (EIS), or a Categorical Exclusion (CatEX). See 33 CFR 325.2(a)(4). Information may be required from the developer for USACE to complete its review.
For more information regarding NEPA implementation procedures for the USACE’s regulatory program, see 33 CFR 325, appendix B.
Similar to, and often combined with its NEPA analysis, is the USACE Public Interest Review. USACE must evaluate the proposed project impacts to determine whether or not the proposal is contrary to the public interest. See 33 CFR 320.4(a). The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. The benefits 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 must 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, shore 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.
13-FD-e.19 to 13-FD-e.20 – Prepare Administrative Record; Record of Decision (ROD) or Statement of Findings (SOF)
Once all public hearings and comment periods have concluded, and USACE has completed the analyses outlined above, USACE will prepare the Administrative Record.
Before issuing the final permit decision, USACE develops a Record of Decision (ROD) or a Statement of Finding (SOF) depending on whether the environmental process required an EIS or EA. See 33 CFR 325.2(a)(6).
13-FD-e.21 to 13-FD-e.23 – Is the Permit Approved?; Section 10 Permit
Once the SOF or ROD is complete, the district engineer must either take action on the permit or forward the report, application, administrative record, and recommendation to the authorized officer, in accordance with 33 CFR 325.8. See 33 CFR 325.2(a)(6).
If the final decision is to deny the permit, USACE will advise the applicant in writing of the reasons for denial. See 33 CFR 325.2(a)(7). If the permit has been denied with prejudice, the developer may then appeal the decision in accordance with the procedures found in 33 CFR 331 et seq.
If the final decision is to issue the permit, USACE will forward the permit to the applicant for signature accepting the general and special conditions of the permit. The permit is not valid until signed by the permittee and countersigned by the District Engineer, or designated official. See 33 CFR 325.2(a)(7). The developer can also appeal the permit if he or she disagrees with any of the terms and conditions.
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