[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR320.2]



[Page 393-394]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

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



[[Page 394]]



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 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).