[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR320.2]

[Page 384-385]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 320--GENERAL REGULATORY POLICIES--Table of Contents
 
Sec. 320.2  Authorities to issue permits.

    (a) Section 9 of the Rivers and Harbors Act, approved March 3, 1899 
(33 U.S.C. 401) (hereinafter referred to as section 9), prohibits the 
construction of any dam or dike across any navigable 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 waterbody 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 modification 
thereof are approved by the Chief of Engineers and by the Secretary of 
the Army. The instrument of authorization is designated a permit (See 33 
CFR part 321.) Section 9 also pertains to bridges and causeways but the 
authority of the Secretary of the Army and Chief of Engineers with 
respect to bridges and causeways was transferred to the Secretary of 
Transportation 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 fill 
material into waters of the United States 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) (hereinafter referred to as section 10), prohibits the 
unauthorized obstruction or alteration of any navigable water of the 
United States. The 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 accomplishment of any other work 
affecting the course, location, condition, or capacity of such waters is 
unlawful unless the work has been recommended by the Chief of Engineers 
and authorized by the Secretary of the Army. The instrument of 
authorization is designated a permit. The authority of the Secretary of 
the Army to prevent obstructions to navigation in navigable waters of 
the United States was extended to artificial islands, installations, 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), authorizes the Secretary of the Army to establish 
harbor lines channelward of which no piers, wharves, bulkheads, or other 
works may be extended or deposits made without approval of the Secretary 
of the Army. Effective May 27, 1970, permits for work shoreward of those 
lines

[[Page 385]]

must be obtained in accordance with section 10 and, if applicable, 
section 404 of the Clean Water Act (see Sec. 320.4(o) of this part).
    (d) Section 13 of the Rivers and Harbors Act approved March 3, 1899, 
(33 U.S.C. 407), provides that the Secretary 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 of a permit, such discharge of refuse is 
prohibited. While the prohibition of this section, known as the Refuse 
Act, is still in effect, the permit authority of 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), provides that the Secretary of the Army, on the 
recommendation of the Chief of Engineers, may grant permission for the 
temporary occupation or use of any sea wall, bulkhead, jetty, dike, 
levee, wharf, pier, or other work built by the United States. This 
permission will be granted by an appropriate real estate instrument in 
accordance with existing real estate regulations.
    (f) Section 404 of the Clean 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 permits, after notice and 
opportunity for public hearing, for the discharge of dredged or fill 
material into the waters of the United States at specified disposal 
sites. (See 33 CFR part 323.) The 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 can deny, prohibit, restrict or 
withdraw the use of any defined area as a disposal site whenever he 
determines, after notice and opportunity for public hearing and after 
consultation with the Secretary of the Army, that the discharge of such 
materials into such areas will have an unacceptable adverse effect on 
municipal water supplies, shellfish beds and fishery areas, 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, ecological systems, or 
economic potentialities. The selection of disposal sites will be in 
accordance with criteria developed by the Administrator of the EPA in 
consultation with the Secretary of the Army and published in 40 CFR 
parts 220 through 229. However, similar to the EPA Administrator's 
limiting authority cited in paragraph (f) of this section, the 
Administrator can prevent the issuance of a permit under this authority 
if he finds that the disposal of the material will result in an 
unacceptable adverse impact on municipal water supplies, shellfish beds, 
wildlife, fisheries, or recreational areas. (See 33 CFR part 324).