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Frequently Asked Questions

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In accordance with the 404(b)(1) guidelines outlined in the Clean Water Act, this type of analysis for a proposed project reviews alternative site locations that would result in less impacts to the aquatic ecosystem, after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

 

The alternative site analysis takes into consideration the following parameters:

  • Property size/ability to fulfill project purpose
  • Availability for purchase, or which could reasonably be obtained, utilized, expanded or managed.
  • Quantity of wetland vs. upland acreage
  • Quality of on-site wetlands
  • Zoning issues

The Corps will typically re-verify nationwide or regional general permit verifications, rather than extend them.

Contact us for more information about requirements for a re-verification.

The objective of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

In support of this goal, the CWA prohibits the discharge of dredged or fill material into wetlands, streams, and other waters of the United States, unless such a discharge is authorized by a permit issued by the U.S. Army Corps of Engineers, or other approved state agency, under CWA Section 404.

When there is a proposed discharge, all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources.

Mitigating the environmental impacts of necessary development actions in the Nation's wetlands and other aquatic resources is a central premise of Federal wetlands programs.

The Clean Water Act Section 404 permit program relies on the use of compensatory mitigation to offset unavoidable impacts to wetlands and other aquatic resources through, for example, the restoration or creation of wetlands. Under the "Swampbuster" provisions of the Food Security Act, farmers are required to provide mitigation to offset certain conversions of wetlands for agricultural purposes in order to maintain their program eligibility. Mitigation for wetland impacts may take place on-site, offsite, in mitigation banks, or through in-lieu fee programs.

Mitigation may include creation, enhancement or restoration of wetlands and their functions or, in some cases, may include preservation of wetlands and associated upland buffers.

“Waters of the United States” is legally defined in section 40 CFR 230.3(s) of the Clean Water Act.

However, this term is also used more generally to refer to all wetlands and surface waters considered to be jurisdictional for the Corps.

If your activity is located in an area of tidal waters, the best way to avoid the need for a permit is to select a site that is above the high tide line and avoid adjacent wetlands.

 

In the vicinity of fresh water, stay landward of the ordinary high water mark and avoid wetlands adjacent to streams, rivers, or lakes.

 

Before you work in or near water or wetlands, contact us for specific information about permitting requirements.

Completing a wetland delineation requires expertise and is typically done by a professional wetland scientist. You may hire a professional wetland scientist to delineate wetlands on your property.

 

The Corps will verify the accuracy of a wetland delineation performed by the applicant or consultant. In some cases, the Corps may delineate wetlands belonging to non-commercial entities.

 

If you have further questions about wetland delineation, contact your local Regulatory office and discuss your project with a regulatory project manager.

The term "fill" refers to material placed in waters of the United States where the material has the effect of:

  1. Replacing any portion of a water of the United States with dry land; or
  2. Changing the bottom elevation of any portion of a water of the United States.

Examples of such fill material can include, but aren't limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the waters of the United States.

The total plan of development for the entire project area is needed for the Corps to complete the evaluation of the cumulative impact review and alternatives analysis.

 

Multi-phase projects should include all development activities the applicant plans to undertake within 5-10 years that are reasonability related to the same project. Examples of a multi-phase project include residential subdivisions, commercial developments, marinas, or mines.

The Corps’ goal is to decide on all applications within 60 days after receipt of a complete application for minor permits and 120 days for individual permits, unless:

(i) precluded as a matter of law or procedures required by law;

(ii) the case must be referred to higher authority;

(iii) the comment period of a public notice is extended;

(iv) a timely submittal of information or comments is not received from the applicant;

(v) the processing is suspended at the request of the applicant; or

(vi) information the district engineer needs for a decision on the application cannot reasonably be obtained within the 60-day period.

Most permits issued by the Corps of Engineers, such as Letters of Permission, Nationwide and General Permits do not have a permit fee.

 

Standard Individual Permits have fees of $10 for individuals and $100 for businesses, once the permit has been issued and accepted by the applicant. There are no fees charged to other governmental agencies.

The Corps regulates activities in navigable waters (Section 10 of the Rivers and Harbors Act), and the discharge of dredged or fill material into waters of the United States (Section 404 of the Clean Water Act of 1972).

 

Section 10 activities include, but are not limited to, the following:

  • New or maintenance dredging
  • Construction, replacement or repair of piers, docks, boat ramps, wharves, dolphins, weir booms, breakwaters, bulkheads, revetments, riprap, jetties, artificial islands, artificial reefs, permanent mooring structures, power transmission lines, permanently moored floating vessels, pilings, and/or navigation aids.

Section 404 activities include but are limited to the following:

  • The building of any structure, infrastructure or impoundment requiring rock, sand, dirt, or other material for its construction.
  • Site-development fills for recreational, industrial, commercial, residential or other uses/causeways or road fills.
  • Dams or dikes.
  • Artificial islands.
  • Property protection and/or reclamation devices such as riprap, groins, seawalls, breakwaters and revetments.
  • Beach nourishment. 
  • Levees. 
  • Fill for structures such as sewage treatment facilities, intake and outfall pipes associated with power plants and subaqueous utility lines. 
  • Placement of fill material for construction or maintenance of any liner, berm or other infrastructure associated with solid waste landfills. 
  • Placement of overburden, slurry or tailings or similar mining related materials. 
  • Artificial reefs.

Contact your local Corps Regulatory office if you are unsure if the property has navigable waters and/or waters of the United States.

Local and state governments issue permits to ensure compliance with local and state laws and regulations. The Corps permit program is in place to ensure you comply with Federal laws and regulations.

Some of the Corps’ nationwide and/or regional permits may already have Section 401 certification, or your state may have pre-certified categories of projects that meet certain criteria.

 

Projects that are not pre-certified will require you to apply to the state for individual Section 401 certification.

You can use the Corps’ Federal Permit Application Form (ENG 4345) or you can use the Joint Permit Application form, which you can fill out and send to both the Corps and the state. Each agency will review the application form and make its own permit decision.

 

Corps offices within the Northwest Division that use Joint Permit Application forms include: the Portland District in Oregon, the Seattle District in Washington, and the Walla Walla District in Idaho.

If you need more space to provide information, please attach an extra sheet of paper marked with the appropriate block number.

The Corps defines an emergency as a situation where action must be taken quickly to avoid severe injuries or immediate, unforeseen loss of life or property. The District Engineer can authorize emergency and expedited reviews of permit applications.

 

You must notify the Corps of the need to perform emergency work before taking any action, if possible. Call the Corps Regulatory specialist for your county as soon as possible to discuss the situation. Alternatively, you can contact the Portland or Eugene Section chief for assistance.

 

The Corps has the responsibility to determine if the proposed work is consistent with the Corps' definition of an emergency, whether authorization is needed, and if so, which type of authorization is required. Unauthorized work may be subject to enforcement action.

 
The Corps may not view an action as an emergency if the applicant has known of the deficient condition of the failing structure and has not made reasonable attempts to secure appropriate permits and conduct timely repairs. Emergency declarations by the state or a county government do not mean all repair activities qualify as emergency situations.

 
All permit reviews, including emergency reviews, require coordination with tribes and state and federal agencies. In an emergency, reasonable effort will be made to receive comments from interest groups and others who may be affected by the action.

In order to receive Section 401 certification, certain activities permitted by the Corps may also require the development and implementation of a stormwater management plan, mitigation plan, operation and maintenance plan, and/or restoration plan.

 

The applicant is responsible for submitting application materials to the responsible state agency, Native American tribe or the EPA.

The Corps regulatory program permit evaluation process results in permit decisions that balance the need for proposed development with protection of the nation’s aquatic environment.

The level of the Corps evaluation is commensurate with the level of the environmental impacts and the aquatic functions and values involved in the particular area being impacted.

Authorization can range from minor permits such as Nationwide and Programmatic and Regional General Permits to Individual Permits. Impacts to higher ecological value areas will be subject to a much more detailed evaluation and a strong focus on avoidance of impacts to the aquatic environment.

Performing unauthorized work in waters of the United States or failure to comply with the terms of a valid permit can have serious consequences.

 

You would be in violation of Federal law and could face stiff penalties, including fines, legal action or imprisonment and/or requirements to restore the area and mitigate for the impacts.

 

Enforcement is an important part of the Corps regulatory program. Corps surveillance and monitoring activities are often aided by various agencies, groups, and individuals, who report suspected violations.

 

When in doubt as to whether a planned activity needs a permit, contact us. It will save a lot of unnecessary trouble (and cost) later.

The term ordinary high water mark refers to the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

 

For purposes of Section 404 of the Clean Water Act, the lateral limits of jurisdiction over non-tidal waterbodies extend to the Ordinary High Water Mark, in the absence of adjacent wetlands. When adjacent wetlands are present, CWA jurisdiction extends beyond the OHWM to the limits of the adjacent wetlands.

 

For states along the coast, the term high tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

 

For purposes of Sections 9 and 10 of the Rivers and Harbors Act of 1899, the lateral extent of Federal jurisdiction, which is limited to the traditional navigable waters of the United States, extends to the OHWM, whether or not adjacent wetlands extend landward.

Information regarding adjacent landowners is usually available online through the local Property Appraiser website. It can also be obtained through the office of the tax assessor in the county or counties where the project is to be developed.
The section, township and range can usually be found in the legal description of your parcel. If you don’t have a copy of that, you may be able to get it online from your county property appraiser.

The applicant applying for authorization should sign the application and the permit if applicable.

If the applicant elects to have another entity or individual obtain the permits on their behalf, the applicant and the other entity or individual will both need to sign the application.

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 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. In states with a coastal zones, 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).