[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: 33CFR320.3]

[Page 385-388]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 320--GENERAL REGULATORY POLICIES--Table of Contents
 
Sec. 320.3  Related laws.

    (a) Section 401 of the Clean Water Act (33 U.S.C. 1341) requires any 
applicant for a federal license or permit to conduct any activity that 
may result in a discharge of a pollutant into waters of the United 
States to obtain a certification from the State in which the discharge 
originates or would originate, or, if appropriate, from the interstate 
water pollution control agency having jurisdiction over the affected 
waters at the point where the discharge originates or would originate, 
that the discharge will comply with the applicable effluent limitations 
and

[[Page 386]]

water quality standards. A certification obtained for the construction 
of any facility must also pertain to the subsequent operation of the 
facility.
    (b) Section 307(c) of the Coastal Zone Management Act of 1972, as 
amended (16 U.S.C. 1456(c)), requires federal agencies conducting 
activities, including development projects, directly affecting a state's 
coastal zone, to comply to the maximum extent practicable with an 
approved state coastal zone management program. Indian tribes doing work 
on federal lands will be treated as a federal agency for the purpose of 
the Coastal Zone Management Act. The Act also requires any non-federal 
applicant for a federal license or permit to conduct an activity 
affecting land or water uses in the state's coastal zone to furnish a 
certification that the proposed activity will comply with the state's 
coastal zone management program. Generally, no permit will be issued 
until the state has concurred with the non-federal applicant's 
certification. This provision becomes effective upon approval by the 
Secretary of Commerce of the state's coastal zone management program. 
(See 15 CFR part 930.)
    (c) Section 302 of the Marine Protection, Research and Sanctuaries 
Act of 1972, as amended (16 U.S.C. 1432), authorizes the Secretary of 
Commerce, after consultation with other interested federal agencies and 
with the approval of the President, to designate as marine sanctuaries 
those areas of the ocean waters, of the Great Lakes and their connecting 
waters, or of other coastal waters which he determines necessary for the 
purpose of preserving or restoring such areas for their conservation, 
recreational, ecological, or aesthetic values. After designating such an 
area, the Secretary of Commerce shall issue regulations to control any 
activities within the area. Activities in the sanctuary authorized under 
other authorities are valid only if the Secretary of Commerce certifies 
that the activities are consistent with the purposes of Title III of the 
Act and can be carried out within the regulations for the sanctuary.
    (d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321-
4347) declares the national policy to encourage a productive and 
enjoyable harmony between man and his environment. Section 102 of that 
Act directs that ``to the fullest extent possible: (1) The policies, 
regulations, and public laws of the United States shall be interpreted 
and administered in accordance with the policies set forth in this Act, 
and
    (2) All agencies of the Federal Government shall * * * insure that 
presently unquantified environmental amenities and values may be given 
appropriate consideration in decision-making along with economic and 
technical considerations * * *''. (See Appendix B of 33 CFR part 325.)
    (e) The Fish and Wildlife Act of 1956 (16 U.S.C. 742a, et seq.), the 
Migratory Marine Game-Fish Act (16 U.S.C. 760c-760g), the Fish and 
Wildlife Coordination Act (16 U.S.C. 661-666c) and other acts express 
the will of Congress to protect the quality of the aquatic environment 
as it affects the conservation, improvement and enjoyment of fish and 
wildlife resources. Reorganization Plan No. 4 of 1970 transferred 
certain functions, including certain fish and wildlife-water resources 
coordination responsibilities, from the Secretary of the Interior to the 
Secretary of Commerce. Under the Fish and Wildlife Coordination Act and 
Reorganization Plan No. 4, any federal agency that proposes to control 
or modify any body of water must first consult with the United States 
Fish and Wildlife Service or the National Marine Fisheries Service, as 
appropriate, and with the head of the appropriate state agency 
exercising administration over the wildlife resources of the affected 
state.
    (f) The Federal Power Act of 1920 (16 U.S.C. 791a et seq.), as 
amended, authorizes the Federal Energy Regulatory Agency (FERC) to issue 
licenses for the construction and the operation and maintenance of dams, 
water conduits, reservoirs, power houses, transmission lines, and other 
physical structures of a hydro-power project. However, where such 
structures will affect the navigable capacity of any navigable water of 
the United States (as defined in 16 U.S.C. 796), the plans for the dam 
or other physical structures affecting navigation must be approved by 
the Chief of Engineers and the Secretary of the Army. In such cases, the 
interests

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of navigation should normally be protected by a DA recommendation to 
FERC for the inclusion of appropriate provisions in the FERC license 
rather than the issuance of a separate DA permit under 33 U.S.C. 401 et 
seq. As to any other activities in navigable waters not constituting 
construction and the operation and maintenance of physical structures 
licensed by FERC under the Federal Power Act of 1920, as amended, the 
provisions of 33 U.S.C. 401 et seq. remain fully applicable. In all 
cases involving the discharge of dredged or fill material into waters of 
the United States or the transportation of dredged material for the 
purpose of disposal in ocean waters, section 404 or section 103 will be 
applicable.
    (g) The National Historic Preservation Act of 1966 (16 U.S.C. 470) 
created the Advisory Council on Historic Preservation to advise the 
President and Congress on matters involving historic preservation. In 
performing its function the Council is authorized to review and comment 
upon activities licensed by the Federal Government which will have an 
effect upon properties listed in the National Register of Historic 
Places, or eligible for such listing. The concern of Congress for the 
preservation of significant historical sites is also expressed in the 
Preservation of Historical and Archeological Data Act of 1974 (16 U.S.C. 
469 et seq.), which amends the Act of June 27, 1960. By this Act, 
whenever a federal construction project or federally licensed project, 
activity, or program alters any terrain such that significant historical 
or archeological data is threatened, the Secretary of the Interior may 
take action necessary to recover and preserve the data prior to the 
commencement of the project.
    (h) The Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701 et 
seq.) prohibits any developer or agent from selling or leasing any lot 
in a subdivision (as defined in 15 U.S.C. 1701(3)) unless the purchaser 
is furnished in advance a printed property report containing information 
which the Secretary of Housing and Urban Development may, by rules or 
regulations, require for the protection of purchasers. In the event the 
lot in question is part of a project that requires DA authorization, the 
property report is required by Housing and Urban Development regulation 
to state whether or not a permit for the development has been applied 
for, issued, or denied by the Corps of Engineers under section 10 or 
section 404. The property report is also required to state whether or 
not any enforcement action has been taken as a consequence of non-
application for or denial of such permit.
    (i) The Endangered Species Act (16 U.S.C. 1531 et seq.) declares the 
intention of the Congress to conserve threatened and endangered species 
and the ecosystems on which those species depend. The Act requires that 
federal agencies, in consultation with the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service, use their authorities 
in furtherance of its purposes by carrying out programs for the 
conservation of endangered or threatened species, and by taking such 
action necessary to insure that any action authorized, funded, or 
carried out by the Agency is not likely to jeopardize the continued 
existence of such endangered or threatened species or result in the 
destruction or adverse modification of habitat of such species which is 
determined by the Secretary of the Interior or Commerce, as appropriate, 
to be critical. (See 50 CFR part 17 and 50 CFR part 402.)
    (j) The Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.) 
prohibits the ownership, construction, or operation of a deepwater port 
beyond the territorial seas without a license issued by the Secretary of 
Transportation. The Secretary of Transportation may issue such a license 
to an applicant if he determines, among other things, that the 
construction and operation of the deepwater port is in the national 
interest and consistent with national security and other national policy 
goals and objectives. An application for a deepwater port license 
constitutes an application for all federal authorizations required for 
the ownership, construction, and operation of a deepwater port, 
including applications for section 10, section 404 and section 103 
permits which may also be required pursuant to the authorities listed in 
Sec. 320.2 and the policies specified in Sec. 320.4 of this part.

[[Page 388]]

    (k) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et 
seq.) expresses the intent of Congress that marine mammals be protected 
and encouraged to develop in order to maintain the health and stability 
of the marine ecosystem. The Act imposes a perpetual moratorium on the 
harassment, hunting, capturing, or killing of marine mammals and on the 
importation of marine mammals and marine mammal products without a 
permit from either the Secretary of the Interior or the Secretary of 
Commerce, depending upon the species of marine mammal involved. Such 
permits may be issued only for purposes of scientific research and for 
public display if the purpose is consistent with the policies of the 
Act. The appropriate Secretary is also empowered in certain restricted 
circumstances to waive the requirements of the Act.
    (l) Section 7(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1278 
et seq.) provides that no department or agency of the United States 
shall assist by loan, grant, license, or otherwise in the construction 
of any water resources project that would have a direct and adverse 
effect on the values for which such river was established, as determined 
by the Secretary charged with its administration.
    (m) The Ocean Thermal Energy Conversion Act of 1980, (42 U.S.C. 
section 9101 et seq.) establishes a licensing regime administered by the 
Administrator of NOAA for the ownership, construction, location, and 
operation of ocean thermal energy conversion (OTEC) facilities and 
plantships. An application for an OTEC license filed with the 
Administrator constitutes an application for all federal authorizations 
required for ownership, construction, location, and operation of an OTEC 
facility or plantship, except for certain activities within the 
jurisdiction of the Coast Guard. This includes applications for section 
10, section 404, section 103 and other DA authorizations which may be 
required.
    (n) Section 402 of the Clean Water Act authorizes EPA to issue 
permits under procedures established to implement the National Pollutant 
Discharge Elimination System (NPDES) program. The administration of this 
program can be, and in most cases has been, delegated to individual 
states. Section 402(b)(6) states that no NPDES permit will be issued if 
the Chief of Engineers, acting for the Secretary of the Army and after 
consulting with the U.S. Coast Guard, determines that navigation and 
anchorage in any navigable water will be substantially impaired as a 
result of a proposed activity.
    (o) The National Fishing Enhancement Act of 1984 (Pub. L. 98-623) 
provides for the development of a National Artificial Reef Plan to 
promote and facilitate responsible and effective efforts to establish 
artificial reefs. The Act establishes procedures to be followed by the 
Corps in issuing DA permits for artificial reefs. The Act also 
establishes the liability of the permittee and the United States. The 
Act further creates a civil penalty for violation of any provision of a 
permit issued for an artificial reef.