[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR320.4]

[Page 397-404]
 
                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.  320.4  General policies for evaluating permit applications.

    The following policies shall be applicable to the review of all 
applications for DA permits. Additional policies specifically applicable 
to certain types of activities are identified in 33 CFR parts 321 
through 324.
    (a) Public Interest Review. (1) The decision whether to issue a 
permit will be based on an evaluation of the probable impacts, including 
cumulative impacts, of the proposed activity and its intended use on the 
public interest. Evaluation of the probable impact which the proposed 
activity may have on the public interest requires a careful weighing of 
all those factors which become relevant in each particular case. The 
benefits which reasonably may be expected to accrue from the proposal 
must be balanced against its reasonably foreseeable detriments. The 
decision whether to authorize a proposal, and if so, the conditions 
under which it will be allowed to occur, are therefore determined by the 
outcome of this general balancing process. That

[[Page 398]]

decision should reflect the national concern for both protection and 
utilization of important resources. All factors which may be relevant to 
the proposal must be considered including the cumulative effects 
thereof: among those are conservation, economics, aesthetics, general 
environmental concerns, wetlands, historic properties, fish and wildlife 
values, flood hazards, floodplain values, land use, navigation, shore 
erosion and accretion, recreation, water supply and conservation, water 
quality, energy needs, safety, food and fiber production, mineral needs, 
considerations of property ownership and, in general, the needs and 
welfare of the people. For activities involving 404 discharges, a permit 
will be denied if the discharge that would be authorized by such permit 
would not comply with the Environmental Protection Agency's 404(b)(1) 
guidelines. Subject to the preceding sentence and any other applicable 
guidelines and criteria (see Sec. Sec.  320.2 and 320.3), a permit will 
be granted unless the district engineer determines that it would be 
contrary to the public interest.
    (2) The following general criteria will be considered in the 
evaluation of every application:
    (i) The relative extent of the public and private need for the 
proposed structure or work:
    (ii) Where there are unresolved conflicts as to resource use, the 
practicability of using reasonable alternative locations and methods to 
accomplish the objective of the proposed structure or work; and
    (iii) The extent and permanence of the beneficial and/or detrimental 
effects which the proposed structure or work is likely to have on the 
public and private uses to which the area is suited.
    (3) The specific weight of each factor is determined by its 
importance and relevance to the particular proposal. Accordingly, how 
important a factor is and how much consideration it deserves will vary 
with each proposal. A specific factor may be given great weight on one 
proposal, while it may not be present or as important on another. 
However, full consideration and appropriate weight will be given to all 
comments, including those of federal, state, and local agencies, and 
other experts on matters within their expertise.
    (b) Effect on wetlands. (1) Most wetlands constitute a productive 
and valuable public resource, the unnecessary alteration or destruction 
of which should be discouraged as contrary to the public interest. For 
projects to be undertaken or partially or entirely funded by a federal, 
state, or local agency, additional requirements on wetlands 
considerations are stated in Executive Order 11990, dated 24 May 1977.
    (2) Wetlands considered to perform functions important to the public 
interest include:
    (i) Wetlands which serve significant natural biological functions, 
including food chain production, general habitat and nesting, spawning, 
rearing and resting sites for aquatic or land species;
    (ii) Wetlands set aside for study of the aquatic environment or as 
sanctuaries or refuges;
    (iii) Wetlands the destruction or alteration of which would affect 
detrimentally natural drainage characteristics, sedimentation patterns, 
salinity distribution, flushing characteristics, current patterns, or 
other environmental characteristics;
    (iv) Wetlands which are significant in shielding other areas from 
wave action, erosion, or storm damage. Such wetlands are often 
associated with barrier beaches, islands, reefs and bars;
    (v) Wetlands which serve as valuable storage areas for storm and 
flood waters;
    (vi) Wetlands which are ground water discharge areas that maintain 
minimum baseflows important to aquatic resources and those which are 
prime natural recharge areas;
    (vii) Wetlands which serve significant water purification functions; 
and
    (viii) Wetlands which are unique in nature or scarce in quantity to 
the region or local area.
    (3) Although a particular alteration of a wetland may constitute a 
minor change, the cumulative effect of numerous piecemeal changes can 
result in a major impairment of wetland resources. Thus, the particular 
wetland site for which an application is made

[[Page 399]]

will be evaluated with the recognition that it may be part of a complete 
and interrelated wetland area. In addition, the district engineer may 
undertake, where appropriate, reviews of particular wetland areas in 
consultation with the Regional Director of the U. S. Fish and Wildlife 
Service, the Regional Director of the National Marine Fisheries Service 
of the National Oceanic and Atmospheric Administration, the Regional 
Administrator of the Environmental Protection Agency, the local 
representative of the Soil Conservation Service of the Department of 
Agriculture, and the head of the appropriate state agency to assess the 
cumulative effect of activities in such areas.
    (4) No permit will be granted which involves the alteration of 
wetlands identified as important by paragraph (b)(2) of this section or 
because of provisions of paragraph (b)(3), of this section unless the 
district engineer concludes, on the basis of the analysis required in 
paragraph (a) of this section, that the benefits of the proposed 
alteration outweigh the damage to the wetlands resource. In evaluating 
whether a particular discharge activity should be permitted, the 
district engineer shall apply the section 404(b)(1) guidelines (40 CFR 
part 230.10(a) (1), (2), (3)).
    (5) In addition to the policies expressed in this subpart, the 
Congressional policy expressed in the Estuary Protection Act, Pub. L. 
90-454, and state regulatory laws or programs for classification and 
protection of wetlands will be considered.
    (c) Fish and wildlife. In accordance with the Fish and Wildlife 
Coordination Act (paragraph 320.3(e) of this section) district engineers 
will consult with the Regional Director, U.S. Fish and Wildlife Service, 
the Regional Director, National Marine Fisheries Service, and the head 
of the agency responsible for fish and wildlife for the state in which 
work is to be performed, with a view to the conservation of wildlife 
resources by prevention of their direct and indirect loss and damage due 
to the activity proposed in a permit application. The Army will give 
full consideration to the views of those agencies on fish and wildlife 
matters in deciding on the issuance, denial, or conditioning of 
individual or general permits.
    (d) Water quality. Applications for permits for activities which may 
adversely affect the quality of waters of the United States will be 
evaluated for compliance with applicable effluent limitations and water 
quality standards, during the construction and subsequent operation of 
the proposed activity. The evaluation should include the consideration 
of both point and non-point sources of pollution. It should be noted, 
however, that the Clean Water Act assigns responsibility for control of 
non-point sources of pollution to the states. Certification of 
compliance with applicable effluent limitations and water quality 
standards required under provisions of section 401 of the Clean Water 
Act will be considered conclusive with respect to water quality 
considerations unless the Regional Administrator, Environmental 
Protection Agency (EPA), advises of other water quality aspects to be 
taken into consideration.
    (e) Historic, cultural, scenic, and recreational values. 
Applications for DA permits may involve areas which possess recognized 
historic, cultural, scenic, conservation, recreational or similar 
values. Full evaluation of the general public interest requires that due 
consideration be given to the effect which the proposed structure or 
activity may have on values such as those associated with wild and 
scenic rivers, historic properties and National Landmarks, National 
Rivers, National Wilderness Areas, National Seashores, National 
Recreation Areas, National Lakeshores, National Parks, National 
Monuments, estuarine and marine sanctuaries, archeological resources, 
including Indian religious or cultural sites, and such other areas as 
may be established under federal or state law for similar and related 
purposes. Recognition of those values is often reflected by state, 
regional, or local land use classifications, or by similar federal 
controls or policies. Action on permit applications should, insofar as 
possible, be consistent with, and avoid significant adverse effects on 
the values or purposes for which those classifications, controls, or 
policies were established.
    (f) Effects on limits of the territorial sea. Structures or work 
affecting coastal

[[Page 400]]

waters may modify the coast line or base line from which the territorial 
sea is measured for purposes of the Submerged Lands Act and 
international law. Generally, the coast line or base line is the line of 
ordinary low water on the mainland; however, there are exceptions where 
there are islands or lowtide elevations offshore (the Submerged Lands 
Act, 43 U.S.C. 1301(a) and United States v. California, 381 U.S.C. 139 
(1965), 382 U.S. 448 (1966)). Applications for structures or work 
affecting coastal waters will therefore be reviewed specifically to 
determine whether the coast line or base line might be altered. If it is 
determined that such a change might occur, coordination with the 
Attorney General and the Solicitor of the Department of the Interior is 
required before final action is taken. The district engineer will submit 
a description of the proposed work and a copy of the plans to the 
Solicitor, Department of the Interior, Washington, DC 20240, and request 
his comments concerning the effects of the proposed work on the outer 
continental rights of the United States. These comments will be included 
in the administrative record of the application. After completion of 
standard processing procedures, the record will be forwarded to the 
Chief of Engineers. The decision on the application will be made by the 
Secretary of the Army after coordination with the Attorney General.
    (g) Consideration of property ownership. Authorization of work or 
structures by DA does not convey a property right, nor authorize any 
injury to property or invasion of other rights.
    (1) An inherent aspect of property ownership is a right to 
reasonable private use. However, this right is subject to the rights and 
interests of the public in the navigable and other waters of the United 
States, including the federal navigation servitude and federal 
regulation for environmental protection.
    (2) Because a landowner has the general right to protect property 
from erosion, applications to erect protective structures will usually 
receive favorable consideration. However, if the protective structure 
may cause damage to the property of others, adversely affect public 
health and safety, adversely impact floodplain or wetland values, or 
otherwise appears contrary to the public interest, the district engineer 
will so advise the applicant and inform him of possible alternative 
methods of protecting his property. Such advice will be given in terms 
of general guidance only so as not to compete with private engineering 
firms nor require undue use of government resources.
    (3) A riparian landowner's general right of access to navigable 
waters of the United States is subject to the similar rights of access 
held by nearby riparian landowners and to the general public's right of 
navigation on the water surface. In the case of proposals which create 
undue interference with access to, or use of, navigable waters, the 
authorization will generally be denied.
    (4) Where it is found that the work for which a permit is desired is 
in navigable waters of the United States (see 33 CFR part 329) and may 
interfere with an authorized federal project, the applicant should be 
apprised in writing of the fact and of the possibility that a federal 
project which may be constructed in the vicinity of the proposed work 
might necessitate its removal or reconstruction. The applicant should 
also be informed that the United States will in no case be liable for 
any damage or injury to the structures or work authorized by Sections 9 
or 10 of the Rivers and Harbors Act of 1899 or by section 404 of the 
Clean Water Act which may be caused by, or result from, future 
operations undertaken by the Government for the conservation or 
improvement of navigation or for other purposes, and no claims or right 
to compensation will accrue from any such damage.
    (5) Proposed activities in the area of a federal project which 
exists or is under construction will be evaluated to insure that they 
are compatible with the purposes of the project.
    (6) A DA permit does not convey any property rights, either in real 
estate or material, or any exclusive privileges. Furthermore, a DA 
permit does not authorize any injury to property or invasion of rights 
or any infringement of Federal, state or local laws or regulations. The 
applicant's signature on an application is an affirmation that the

[[Page 401]]

applicant possesses or will possess the requisite property interest to 
undertake the activity proposed in the application. The district 
engineer will not enter into disputes but will remind the applicant of 
the above. The dispute over property ownership will not be a factor in 
the Corps public interest decision.
    (h) Activities affecting coastal zones. Applications for DA permits 
for activities affecting the coastal zones of those states having a 
coastal zone management program approved by the Secretary of Commerce 
will be evaluated with respect to compliance with that program. No 
permit will be issued to a non-federal applicant until certification has 
been provided that the proposed activity complies with the coastal zone 
management program and the appropriate state agency has concurred with 
the certification or has waived its right to do so. However, a permit 
may be issued to a non-federal applicant if the Secretary of Commerce, 
on his own initiative or upon appeal by the applicant, finds that the 
proposed activity is consistent with the objectives of the Coastal Zone 
Management Act of 1972 or is otherwise necessary in the interest of 
national security. Federal agency and Indian tribe applicants for DA 
permits are responsible for complying with the Coastal Zone Management 
Act's directives for assuring that their activities directly affecting 
the coastal zone are consistent, to the maximum extent practicable, with 
approved state coastal zone management programs.
    (i) Activities in marine sanctuaries. Applications for DA 
authorization for activities in a marine sanctuary established by the 
Secretary of Commerce under authority of section 302 of the Marine 
Protection, Research and Sanctuaries Act of 1972, as amended, will be 
evaluated for impact on the marine sanctuary. No permit will be issued 
until the applicant provides a certification from the Secretary of 
Commerce that the proposed activity is consistent with the purposes of 
Title III of the Marine Protection, Research and Sanctuaries Act of 
1972, as amended, and can be carried out within the regulations 
promulgated by the Secretary of Commerce to control activities within 
the marine sanctuary.
    (j) Other Federal, state, or local requirements. (1) Processing of 
an application for a DA permit normally will proceed concurrently with 
the processing of other required Federal, state, and/or local 
authorizations or certifications. Final action on the DA permit will 
normally not be delayed pending action by another Federal, state or 
local agency (See 33 CFR 325.2 (d)(4)). However, where the required 
Federal, state and/or local authorization and/or certification has been 
denied for activities which also require a Department of the Army permit 
before final action has been taken on the Army permit application, the 
district engineer will, after considering the likelihood of subsequent 
approval of the other authorization and/or certification and the time 
and effort remaining to complete processing the Army permit application, 
either immediately deny the Army permit without prejudice or continue 
processing the application to a conclusion. If the district engineer 
continues processing the application, he will conclude by either denying 
the permit as contrary to the public interest, or denying it without 
prejudice indicating that except for the other Federal, state or local 
denial the Army permit could, under appropriate conditions, be issued. 
Denial without prejudice means that there is no prejudice to the right 
of the applicant to reinstate processing of the Army permit application 
if subsequent approval is received from the appropriate Federal, state 
and/or local agency on a previously denied authorization and/or 
certification. Even if official certification and/or authorization is 
not required by state or federal law, but a state, regional, or local 
agency having jurisdiction or interest over the particular activity 
comments on the application, due consideration shall be given to those 
official views as a reflection of local factors of the public interest.
    (2) The primary responsibility for determining zoning and land use 
matters rests with state, local and tribal governments. The district 
engineer will normally accept decisions by such governments on those 
matters unless there are significant issues of overriding national 
importance. Such

[[Page 402]]

issues would include but are not necessarily limited to national 
security, navigation, national economic development, water quality, 
preservation of special aquatic areas, including wetlands, with 
significant interstate importance, and national energy needs. Whether a 
factor has overriding importance will depend on the degree of impact in 
an individual case.
    (3) A proposed activity may result in conflicting comments from 
several agencies within the same state. Where a state has not designated 
a single responsible coordinating agency, district engineers will ask 
the Governor to express his views or to designate one state agency to 
represent the official state position in the particular case.
    (4) In the absence of overriding national factors of the public 
interest that may be revealed during the evaluation of the permit 
application, a permit will generally be issued following receipt of a 
favorable state determination provided the concerns, policies, goals, 
and requirements as expressed in 33 CFR parts 320-324, and the 
applicable statutes have been considered and followed: e.g., the 
National Environmental Policy Act; the Fish and Wildlife Coordination 
Act; the Historical and Archeological Preservation Act; the National 
Historic Preservation Act; the Endangered Species Act; the Coastal Zone 
Management Act; the Marine Protection, Research and Sanctuaries Act of 
1972, as amended; the Clean Water Act, the Archeological Resources Act, 
and the American Indian Religious Freedom Act. Similarly, a permit will 
generally be issued for Federal and Federally-authorized activities; 
another federal agency's determination to proceed is entitled to 
substantial consideration in the Corps' public interest review.
    (5) Where general permits to avoid duplication are not practical, 
district engineers shall develop joint procedures with those local, 
state, and other Federal agencies having ongoing permit programs for 
activities also regulated by the Department of the Army. In such cases, 
applications for DA permits may be processed jointly with the state or 
other federal applications to an independent conclusion and decision by 
the district engineer and the appropriate Federal or state agency. (See 
33 CFR 325.2(e).)
    (6) The district engineer shall develop operating procedures for 
establishing official communications with Indian Tribes within the 
district. The procedures shall provide for appointment of a tribal 
representative who will receive all pertinent public notices, and 
respond to such notices with the official tribal position on the 
proposed activity. This procedure shall apply only to those tribes which 
accept this option. Any adopted operating procedures shall be 
distributed by public notice to inform the tribes of this option.
    (k) Safety of impoundment structures. To insure that all impoundment 
structures are designed for safety, non-Federal applicants may be 
required to demonstrate that the structures comply with established 
state dam safety criteria or have been designed by qualified persons 
and, in appropriate cases, that the design has been independently 
reviewed (and modified as the review would indicate) by similarly 
qualified persons.
    (l) Floodplain management. (1) Floodplains possess significant 
natural values and carry out numerous functions important to the public 
interest. These include:
    (i) Water resources values (natural moderation of floods, water 
quality maintenance, and groundwater recharge);
    (ii) Living resource values (fish, wildlife, and plant resources);
    (iii) Cultural resource values (open space, natural beauty, 
scientific study, outdoor education, and recreation); and
    (iv) Cultivated resource values (agriculture, aquaculture, and 
forestry).
    (2) Although a particular alteration to a floodplain may constitute 
a minor change, the cumulative impact of such changes may result in a 
significant degradation of floodplain values and functions and in 
increased potential for harm to upstream and downstream activities. In 
accordance with the requirements of Executive Order 11988, district 
engineers, as part of their public interest review, should avoid to the 
extent practicable, long and short term significant adverse impacts 
associated with the occupancy and modification of

[[Page 403]]

floodplains, as well as the direct and indirect support of floodplain 
development whenever there is a practicable alternative. For those 
activities which in the public interest must occur in or impact upon 
floodplains, the district engineer shall ensure, to the maximum extent 
practicable, that the impacts of potential flooding on human health, 
safety, and welfare are minimized, the risks of flood losses are 
minimized, and, whenever practicable the natural and beneficial values 
served by floodplains are restored and preserved.
    (3) In accordance with Executive Order 11988, the district engineer 
should avoid authorizing floodplain developments whenever practicable 
alternatives exist outside the floodplain. If there are no such 
practicable alternatives, the district engineer shall consider, as a 
means of mitigation, alternatives within the floodplain which will 
lessen any significant adverse impact to the floodplain.
    (m) Water supply and conservation. Water is an essential resource, 
basic to human survival, economic growth, and the natural environment. 
Water conservation requires the efficient use of water resources in all 
actions which involve the significant use of water or that significantly 
affect the availability of water for alternative uses including 
opportunities to reduce demand and improve efficiency in order to 
minimize new supply requirements. Actions affecting water quantities are 
subject to Congressional policy as stated in section 101(g) of the Clean 
Water Act which provides that the authority of states to allocate water 
quantities shall not be superseded, abrogated, or otherwise impaired.
    (n) Energy conservation and development. Energy conservation and 
development are major national objectives. District engineers will give 
high priority to the processing of permit actions involving energy 
projects.
    (o) Navigation. (1) Section 11 of the Rivers and Harbors Act of 1899 
authorized establishment of harbor lines shoreward of which no 
individual permits were required. Because harbor lines were established 
on the basis of navigation impacts only, the Corps of Engineers 
published a regulation on 27 May 1970 (33 CFR 209.150) which declared 
that permits would thereafter be required for activities shoreward of 
the harbor lines. Review of applications would be based on a full public 
interest evaluation and harbor lines would serve as guidance for 
assessing navigation impacts. Accordingly, activities constructed 
shoreward of harbor lines prior to 27 May 1970 do not require specific 
authorization.
    (2) The policy of considering harbor lines as guidance for assessing 
impacts on navigation continues.
    (3) Protection of navigation in all navigable waters of the United 
States continues to be a primary concern of the federal government.
    (4) District engineers should protect navigational and anchorage 
interests in connection with the NPDES program by recommending to EPA or 
to the state, if the program has been delegated, that a permit be denied 
unless appropriate conditions can be included to avoid any substantial 
impairment of navigation and anchorage.
    (p) Environmental benefits. Some activities that require Department 
of the Army permits result in beneficial effects to the quality of the 
environment. The district engineer will weigh these benefits as well as 
environmental detriments along with other factors of the public 
interest.
    (q) Economics. When private enterprise makes application for a 
permit, it will generally be assumed that appropriate economic 
evaluations have been completed, the proposal is economically viable, 
and is needed in the market place. However, the district engineer in 
appropriate cases, may make an independent review of the need for the 
project from the perspective of the overall public interest. The 
economic benefits of many projects are important to the local community 
and contribute to needed improvements in the local economic base, 
affecting such factors as employment, tax revenues, community cohesion, 
community services, and property values. Many projects also contribute 
to the National Economic Development (NED), (i.e., the increase in the 
net value of the national output of goods and services).

[[Page 404]]

    (r) Mitigation.\1\ (1) Mitigation is an important aspect of the 
review and balancing process on many Department of the Army permit 
applications. Consideration of mitigation will occur throughout the 
permit application review process and includes avoiding, minimizing, 
rectifying, reducing, or compensating for resource losses. Losses will 
be avoided to the extent practicable. Compensation may occur on-site or 
at an off-site location. Mitigation requirements generally fall into 
three categories.
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    \1\ This is a general statement of mitigation policy which applies 
to all Corps of Engineers regulatory authorities covered by these 
regulations (33 CFR parts 320-330). It is not a substitute for the 
mitigation requirements necessary to ensure that a permit action under 
section 404 of the Clean Water Act complies with the section 404(b)(1) 
Guidelines. There is currently an interagency Working Group formed to 
develop guidance on implementing mitigation requirements of the 
Guidelines.
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    (i) Project modifications to minimize adverse project impacts should 
be discussed with the applicant at pre-application meetings and during 
application processing. As a result of these discussions and as the 
district engineer's evaluation proceeds, the district engineer may 
require minor project modifications. Minor project modifications are 
those that are considered feasible (cost, constructability, etc.) to the 
applicant and that, if adopted, will result in a project that generally 
meets the applicant's purpose and need. Such modifications can include 
reductions in scope and size; changes in construction methods, materials 
or timing; and operation and maintenance practices or other similar 
modifications that reflect a sensitivity to environmental quality within 
the context of the work proposed. For example, erosion control features 
could be required on a fill project to reduce sedimentation impacts or a 
pier could be reoriented to minimize navigational problems even though 
those projects may satisfy all legal requirements (paragraph (r)(1)(ii) 
of this section) and the public interest review test (paragraph 
(r)(1)(iii) of this section) without such modifications.
    (ii) Further mitigation measures may be required to satisfy legal 
requirements. For Section 404 applications, mitigation shall be required 
to ensure that the project complies with the 404(b)(1) Guidelines. Some 
mitigation measures are enumerated at 40 CFR 230.70 through 40 CFR 
230.77 (Subpart H of the 404(b)(1) Guidelines).
    (iii) Mitigation measures in addition to those under paragraphs 
(r)(1) (i) and (ii) of this section may be required as a result of the 
public interest review process. (See 33 CFR 325.4(a).) Mitigation should 
be developed and incorporated within the public interest review process 
to the extent that the mitigation is found by the district engineer to 
be reasonable and justified. Only those measures required to ensure that 
the project is not contrary to the public interest may be required under 
this subparagraph.
    (2) All compensatory mitigation will be for significant resource 
losses which are specifically identifiable, reasonably likely to occur, 
and of importance to the human or aquatic environment. Also, all 
mitigation will be directly related to the impacts of the proposal, 
appropriate to the scope and degree of those impacts, and reasonably 
enforceable. District engineers will require all forms of mitigation, 
including compensatory mitigation, only as provided in paragraphs (r)(1) 
(i) through (iii) of this section. Additional mitigation may be added at 
the applicants' request.