[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: 33CFR322.3]

[Page 397-398]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 322--PERMITS FOR STRUCTURES OR WORK IN OR AFFECTING NAVIGABLE WATERS OF THE UNITED STATES--Table of Contents
 
Sec. 322.3  Activities requiring permits.

    (a) General. DA permits are required under section 10 for structures 
and/or work in or affecting navigable waters of the United States except 
as otherwise provided in Sec. 322.4 below. Certain activities specified 
in 33 CFR part 330 are permitted by that regulation (''nationwide 
general permits''). Other activities may be authorized by district or 
division engineers on a regional basis (``regional general permits''). 
If an activity is not exempted by section 322.4 of this part or 
authorized by a general permit, an individual section 10 permit will be 
required for the proposed activity. Structures or work are in navigable 
waters of the United States if they are within limits defined in 33 CFR 
part 329. Structures or work outside these limits are subject to the 
provisions of law cited in paragraph (a) of this section, if these 
structures or work affect the course, location, or condition of the 
waterbody in such a manner as to impact on its navigable capacity. For 
purposes of a section 10 permit, a tunnel or other structure or work 
under or over a navigable water of the United States is considered to

[[Page 398]]

have an impact on the navigable capacity of the waterbody.
    (b) Outer continental shelf. DA permits are required for the 
construction of artificial islands, installations, and other devices on 
the seabed, to the seaward limit of the outer continental shelf, 
pursuant to section 4(f) of the Outer Continental Shelf Lands Act as 
amended. (See 33 CFR 320.2(b).)
    (c) Activities of Federal agencies. (1) Except as specifically 
provided in this paragraph, activities of the type described in 
paragraphs (a) and (b) of this section, done by or on behalf of any 
Federal agency are subject to the authorization procedures of these 
regulations. Work or structures in or affecting navigable waters of the 
United States that are part of the civil works activities of the Corps 
of Engineers, unless covered by a nationwide or regional general permit 
issued pursuant to these regulations, are subject to the procedures of 
separate regulations. Agreement for construction or engineering services 
performed for other agencies by the Corps of Engineers does not 
constitute authorization under this regulation. Division and district 
engineers will therefore advise Federal agencies accordingly, and 
cooperate to the fullest extent in expediting the processing of their 
applications.
    (2) Congress has delegated to the Secretary of the Army in section 
10 the duty to authorize or prohibit certain work or structures in 
navigable waters of the United States, upon recommendation of the Chief 
of Engineers. The general legislation by which Federal agencies are 
enpowered to act generally is not considered to be sufficient 
authorization by Congress to satisfy the purposes of section 10. If an 
agency asserts that it has Congressional authorization meeting the test 
of section 10 or would otherwise be exempt from the provisions of 
section 10, the legislative history and/or provisions of the Act should 
clearly demonstrate that Congress was approving the exact location and 
plans from which Congress could have considered the effect on navigable 
waters of the United States or that Congress intended to exempt that 
agency from the requirements of section 10. Very often such legislation 
reserves final approval of plans or construction for the Chief of 
Engineers. In such cases evaluation and authorization under this 
regulation are limited by the intent of the statutory language involved.
    (3) The policy provisions set out in 33 CFR 320.4(j) relating to 
state or local certifications and/or authorizations, do not apply to 
work or structures undertaken by Federal agencies, except where 
compliance with non-Federal authorization is required by Federal law or 
Executive policy, e.g., section 313 and section 401 of the Clean Water 
Act.