[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: 33CFR320.3]



[Page 394-397]

 

                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.  320.3  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



[[Page 395]]



waters at the point where the discharge originates or would originate, 

that the discharge will comply with the applicable effluent limitations 

and 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



[[Page 396]]



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 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,



[[Page 397]]



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.

    (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.