Section

[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: 33CFR322.5]

[Page 398-403]

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. 322.5 Special policies.

The Secretary of the Army has delegated to the Chief of Engineers
the authority to issue or deny section 10 permits. The following
additional special policies and procedures shall also be applicable to
the evaluation of permit applications under this regulation.
(a) General. DA permits are required for structures or work in or
affecting navigable waters of the United States. However, certain
structures or work specified in 33 CFR part 330 are permitted by that
regulation. If a structure or work is not permitted by that regulation,
an individual or regional section 10 permit will be required.
(b) Artificial Reefs. (1) When considering an application for an
artificial reef, as defined in 33 CFR 322.2(g), the

[[Page 399]]

district engineer will review the applicant's provisions for siting,
constructing, monitoring, operating, maintaining, and managing the
proposed artificial reef and shall determine if those provisions are
consistent with the following standards:
(i) The enhancement of fishery resources to the maximum extent
practicable;
(ii) The facilitation of access and utilization by United States
recreational and commercial fishermen;
(iii) The minimization of conflicts among competing uses of the
navigable waters or waters overlying the outer continental shelf and of
the resources in such waters;
(iv) The minimization of environmental risks and risks to personal
health and property;
(v) Generally accepted principles of international law; and
(vi) the prevention of any unreasonable obstructions to navigation.
If the district engineer decides that the applicant's provisions are not
consistent with these standards, he shall deny the permit. If the
district engineer decides that the provisions are consistent with these
standards, and if he decides to issue the permit after the public
interest review, he shall make the provisions part of the permit.
(2) In addition, the district engineer will consider the National
Artificial Reef Plan developed pursuant to section 204 of the National
Fishing Enhancement Act of 1984, and if he decides to issue the permit,
will notify the Secretary of Commerce of any need to deviate from that
plan.
(3) The district engineer will comply with all coordination
provisions required by a written agreement between the DOD and the
Federal agencies relative to artificial reefs. In addition, if the
district engineer decides that further consultation beyond the normal
public commenting process is required to evaluate fully the proposed
artificial reef, he may initiate such consultation with any Federal
agency, state or local government, or other interested party.
(4) The district engineer will issue a permit for the proposed
artificial reef only if the applicant demonstrates, to the district
engineer's satisfaction, that the title to the artificial reef
construction material is unambiguous, that responsibility for
maintenance of the reef is clearly established, and that he has the
financial ability to assume liability for all damages that may arise
with respect to the proposed artificial reef. A demonstration of
financial responsibility might include evidence of insurance,
sponsorship, or available assets.
(i) A person to whom a permit is issued in accordance with these
regulations and any insurer of that person shall not be liable for
damages caused by activities required to be undertaken under any terms
and conditions of the permit, if the permittee is in compliance with
such terms and conditions.
(ii) A person to whom a permit is issued in accordance with these
regulations and any insurer of that person shall be liable, to the
extent determined under applicable law, for damages to which paragraph
(i) does not apply.
(iii) Any person who has transferred title to artificial reef
construction materials to a person to whom a permit is issued in
accordance with these regulations shall not be liable for damages
arising from the use of such materials in an artificial reef, if such
materials meet applicable requirements of the plan published under
section 204 of the National Artificial Reef Plan, and are not otherwise
defective at the time title is transferred.
(c) Non-Federal dredging for navigation. (1) The benefits which an
authorized Federal navigation project are intended to produce will often
require similar and related operations by non-Federal agencies (e.g.,
dredging access channels to docks and berthing facilities or deepening
such channels to correspond to the Federal project depth). These non-
Federal activities will be considered by Corps of Engineers officials in
planning the construction and maintenance of Federal navigation projects
and, to the maximum practical extent, will be coordinated with
interested Federal, state, regional and local agencies and the general
public simultaneously with the associated Federal projects. Non-Federal
activities which are not so coordinated will

[[Page 400]]

be individually evaluated in accordance with these regulations. In
evaluating the public interest in connection with applications for
permits for such coordinated operations, equal treatment will be
accorded to the fullest extent possible to both Federal and non-Federal
operations. Permits for non-Federal dredging operations will normally
contain conditions requiring the permittee to comply with the same
practices or requirements utilized in connection with related Federal
dredging operations with respect to such matters as turbidity, water
quality, containment of material, nature and location of approved spoil
disposal areas (non-Federal use of Federal contained disposal areas will
be in accordance with laws authorizing such areas and regulations
governing their use), extent and period of dredging, and other factors
relating to protection of environmental and ecological values.
(2) A permit for the dredging of a channel, slip, or other such
project for navigation may also authorize the periodic maintenance
dredging of the project. Authorization procedures and limitations for
maintenance dredging shall be as prescribed in 33 CFR 325.6(e). The
permit will require the permittee to give advance notice to the district
engineer each time maintenance dredging is to be performed. Where the
maintenance dredging involves the discharge of dredged material into
waters of the United States or the transportation of dredged material
for the purpose of dumping it in ocean waters, the procedures in 33 CFR
parts 323 and 324 respectively shall also be followed.
(d) Structures for small boats. (1) In the absence of overriding
public interest, favorable consideration will generally be given to
applications from riparian owners for permits for piers, boat docks,
moorings, platforms and similar structures for small boats. Particular
attention will be given to the location and general design of such
structures to prevent possible obstructions to navigation with respect
to both the public's use of the waterway and the neighboring
proprietors' access to the waterway. Obstructions can result from both
the existence of the structure, particularly in conjunction with other
similar facilities in the immediate vicinity, and from its inability to
withstand wave action or other forces which can be expected. District
engineers will inform applicants of the hazards involved and encourage
safety in location, design, and operation. District engineers will
encourage cooperative or group use facilities in lieu of individual
proprietary use facilities.
(2) Floating structures for small recreational boats or other
recreational purposes in lakes controlled by the Corps of Engineers
under a resource manager are normally subject to permit authorities
cited in Sec. 322.3, of this section, when those waters are regarded as
navigable waters of the United States. However, such structures will not
be authorized under this regulation but will be regulated under
applicable regulations of the Chief of Engineers published in 36 CFR
327.19 if the land surrounding those lakes is under complete Federal
ownership. District engineers will delineate those portions of the
navigable waters of the United States where this provision is applicable
and post notices of this designation in the vicinity of the lake
resource manager's office.
(e) Aids to navigation. The placing of fixed and floating aids to
navigation in a navigable water of the United States is within the
purview of Section 10 of the Rivers and Harbors Act of 1899.
Furthermore, these aids are of particular interest to the U.S. Coast
Guard because of its control of marking, lighting and standardization of
such navigation aids. A Section 10 nationwide permit has been issued for
such aids provided they are approved by, and installed in accordance
with the requirements of the U.S. Coast Guard (33 CFR 330.5(a)(1)).
Electrical service cables to such aids are not included in the
nationwide permit (an individual or regional Section 10 permit will be
required).
(f) Outer continental shelf. Artificial islands, installations, and
other devices located on the seabed, to the seaward limit of the outer
continental shelf, are subject to the standard permit procedures of this
regulation. Where the islands, installations and other devices are to be
constructed on lands which

[[Page 401]]

are under mineral lease from the Mineral Management Service, Department
of the Interior, that agency, in cooperation with other federal
agencies, fully evaluates the potential effect of the leasing program on
the total environment. Accordingly, the decision whether to issue a
permit on lands which are under mineral lease from the Department of the
Interior will be limited to an evaluation of the impact of the proposed
work on navigation and national security. The public notice will so
identify the criteria.
(g) Canals and other artificial waterways connected to navigable
waters of the United States. A canal or similar artificial waterway is
subject to the regulatory authorities discussed in Sec. 322.3, of this
part, if it constitutes a navigable water of the United States, or if it
is connected to navigable waters of the United States in a manner which
affects their course, location, condition, or capacity, or if at some
point in its construction or operation it results in an effect on the
course, location, condition, or capacity of navigable waters of the
United States. In all cases the connection to navigable waters of the
United States requires a permit. Where the canal itself constitutes a
navigable water of the United States, evaluation of the permit
application and further exercise of regulatory authority will be in
accordance with the standard procedures of these regulations. For all
other canals, the exercise of regulatory authority is restricted to
those activities which affect the course, location, condition, or
capacity of the navigable waters of the United States. The district
engineer will consider, for applications for canal work, a proposed plan
of the entire development and the location and description of
anticipated docks, piers and other similar structures which will be
placed in the canal.
(h) Facilities at the borders of the United States. (1) The
construction, operation, maintenance, or connection of facilities at the
borders of the United States are subject to Executive control and must
be authorized by the President, Secretary of State, or other delegated
official.
(2) Applications for permits for the construction, operation,
maintenance, or connection at the borders of the United States of
facilities for the transmission of electric energy between the United
States and a foreign country, or for the exportation or importation of
natural gas to or from a foreign country, must be made to the Secretary
of Energy. (Executive Order 10485, September 3, 1953, 16 U.S.C.
824(a)(e), 15 U.S.C. 717(b), as amended by Executive Order 12038,
February 3, 1978, and 18 CFR parts 32 and 153).
(3) Applications for the landing or operation of submarine cables
must be made to the Federal Communications Commission. (Executive Order
10530, May 10, 1954, 47 U.S.C. 34 to 39, and 47 CFR 1.766).
(4) The Secretary of State is to receive applications for permits
for the construction, connection, operation, or maintenance, at the
borders of the United States, of pipelines, conveyor belts, and similar
facilities for the exportation or importation of petroleum products,
coals, minerals, or other products to or from a foreign country;
facilities for the exportation or importation of water or sewage to or
from a foreign country; and monorails, aerial cable cars, aerial
tramways, and similar facilities for the transportation of persons and/
or things, to or from a foreign country. (Executive Order 11423, August
16, 1968).
(5) A DA permit under section 10 of the Rivers and Harbors Act of
1899 is also required for all of the above facilities which affect the
navigable waters of the United States, but in each case in which a
permit has been issued as provided above, the district engineer, in
evaluating the general public interest, may consider the basic existence
and operation of the facility to have been primarily examined and
permitted as provided by the Executive Orders. Furthermore, in those
cases where the construction, maintenance, or operation at the above
facilities involves the discharge of dredged or fill material in waters
of the United States or the transportation of dredged material for the
purpose of dumping it into ocean waters, appropriate DA authorizations
under section 404 of the Clean Water Act or under section 103 of the
Marine Protection, Research and Sanctuaries Act of 1972, as amended, are

[[Page 402]]

also required. (See 33 CFR parts 323 and 324.)
(i) Power transmission lines. (1) Permits under section 10 of the
Rivers and Harbors Act of 1899 are required for power transmission lines
crossing navigable waters of the United States unless those lines are
part of a water power project subject to the regulatory authorities of
the Department of Energy under the Federal Power Act of 1920. If an
application is received for a permit for lines which are part of such a
water power project, the applicant will be instructed to submit the
application to the Department of Energy. If the lines are not part of
such a water power project, the application will be processed in
accordance with the procedures of these regulations.
(2) The following minimum clearances are required for aerial
electric power transmission lines crossing navigable waters of the
United States. These clearances are related to the clearances over the
navigable channel provided by existing fixed bridges, or the clearances
which would be required by the U.S. Coast Guard for new fixed bridges,
in the vicinity of the proposed power line crossing. The clearances are
based on the low point of the line under conditions which produce the
greatest sag, taking into consideration temperature, load, wind, length
or span, and type of supports as outlined in the National Electrical
Safety Code.

------------------------------------------------------------------------
Minimum
additional
clearance
Nominal system voltage, kV (feet) above
clearance
required for
bridges
------------------------------------------------------------------------
115 and below........................................... 20
138..................................................... 22
161..................................................... 24
230..................................................... 26
350..................................................... 30
500..................................................... 35
700..................................................... 42
750-765................................................. 45
------------------------------------------------------------------------

(3) Clearances for communication lines, stream gaging cables, ferry
cables, and other aerial crossings are usually required to be a minimum
of ten feet above clearances required for bridges. Greater clearances
will be required if the public interest so indicates.
(4) Corps of Engineer regulation ER 1110-2-4401 prescribes minimum
vertical clearances for power and communication lines over Corps lake
projects. In instances where both this regulation and ER 1110-2-4401
apply, the greater minimum clearance is required.
(j) Seaplane operations. (1) Structures in navigable waters of the
United States associated with seaplane operations require DA permits,
but close coordination with the Federal Aviation Administration (FAA),
Department of Transportation, is required on such applications.
(2) The FAA must be notified by an applicant whenever he proposes to
establish or operate a seaplane base. The FAA will study the proposal
and advise the applicant, district engineer, and other interested
parties as to the effects of the proposal on the use of airspace. The
district engineer will, therefore, refer any objections regarding the
effect of the proposal on the use of airspace to the FAA, and give due
consideration to its recommendations when evaluating the general public
interest.
(3) If the seaplane base would serve air carriers licensed by the
Department of Transportation, the applicant must receive an airport
operating certificate from the FAA. That certificate reflects a
determination and conditions relating to the installation, operation,
and maintenance of adequate air navigation facilities and safety
equipment. Accordingly, the district engineer may, in evaluating the
general public interest, consider such matters to have been primarily
evaluated by the FAA.
(4) For regulations pertaining to seaplane landings at Corps of
Engineers projects, see 36 CFR 327.4.
(k) Foreign trade zones. The Foreign Trade Zones Act (48 Stat. 998-
1003, 19 U.S.C. 81a to 81u, as anended) authorizes the establishnent of
foreign-trade zones in or adjacent to United States ports of entry under
terms of a grant and regulations prescribed by the Foreign-Trade Zones
Board. Pertinent regulations are published at Title 15 of the Code of
Federal Regulations, part 400. The Secretary of the Army is a member of
the Board, and construction of a

[[Page 403]]

zone is under the supervision of the district engineer. Laws governing
the navigable waters of the United States remain applicable to foreign-
trade zones, including the general requirements of these regulations.
Evaluation by a district engineer of a permit application may give
recognition to the consideration by the Board of the general econonic
effects of the zone on local and foreign commerce, general location of
wharves and facilities, and other factors pertinent to construction,
operation, and maintenance of the zone.
(l) Shipping safety fairways and anchorage areas. DA permits are
required for structures located within shipping safety fairways and
anchorage areas established by the U.S. Coast Guard.
(1) The Department of the Army will grant no permits for the
erection of structures in areas designated as fairways, except that
district engineers may permit anchors and attendant cables or chains for
floating or semisubmersible drilling rigs to be placed within a fairway
provided the following conditions are met:
(i) The purpose of such anchors and attendant cables or chains as
used in this section is to stabilize floating production facilities or
semisubmersible drilling rigs which are located outside the boundaries
of the fairway.
(ii) In water depths of 600 feet or less, the installation of
anchors and attendant cables or chains within fairways must be temporary
and shall be allowed to remain only 120 days. This period may be
extended by the district engineer provided reasonable cause for such
extension can be shown and the extension is otherwise justified. In
water depths greater than 600 feet, time restrictions on anchors and
attendant cables or chains located within a fairway, whether temporary
or permanent, shall not apply.
(iii) Drilling rigs must be at least 500 feet from any fairway
boundary or whatever distance necessary to insure that minimnum
clearance over an anchor line within a fairway will be 125 feet.
(iv) No anchor buoys or floats or related rigging will be allowed on
the surface of the water or to a depth of 125 feet from the surface,
within the fairway.
(v) Drilling rigs may not be placed closer than 2 nautical miles of
any other drilling rig situated along a fairway boundary, and not closer
than 3 nautical miles to any drilling rig located on the opposite side
of the fairway.
(vi) The permittee must notify the district engineer, Bureau of Land
Management, Mineral Management Service, U.S. Coast Guard, National
Oceanic and Atmospheric Administration and the U.S. Navy Hydrographic
Office of the approximate dates (commencenent and completion) the
anchors will be in place to insure maximum notification to mariners.
(vii) Navigation aids or danger markings must be installed as
required by the U.S. Coast Guard.
(2) District engineers may grant permits for the erection of
structures within an area designated as an anchorage area, but the
number of structures will be limited by spacing, as follows: The center
of a structure to be erected shall be not less than two (2) nautical
miles from the center of any existing structure. In a drilling or
production complex, associated structures shall be as close together as
practicable having due consideration for the safety factors involved. A
complex of associated structures, when connected by walkways, shall be
considered one structure for the purpose of spacing. A vessel fixed in
place by moorings and used in conjunction with the associated structures
of a drilling or production complex, shall be considered an attendant
vessel and its extent shall include its moorings. When a drilling or
production complex includes an attendant vessel and the complex extends
more than five hundred (500) yards from the center or the complex, a
structure to be erected shall be not closer than two (2) nautical miles
from the near outer limit of the complex. An underwater completion
installation in and anchorage area shall be considered a structure and
shall be marked with a lighted buoy as approved by the United States
Coast Guard.

[51 FR 41228, Nov. 13, 1986, as amended at 60 FR 44761, Aug. 29, 1995]

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