[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: 33CFR322.3]



[Page 406-407]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

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

                                 DEFENSE

 

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



[[Page 407]]



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 

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.