Regulatory Permitting

All applications are reviewed by the Corps on a case-by-case basis for potential effects to threatened or endangered species. Permits cannot be issued by the U.S. Army Corps of Engineers until the requirements of the Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act have been satisfied. Some Corps Districts have developed programmatic consultations and other tools that help streamline the ESA and MSA consultation processes. Depending upon the results of the consultation, the Corps may add conditions to the permit related to conservation of protected species. All applications are reviewed by the Corps on a case-by-case basis for potential effects to threatened or endangered species. The Corps may require additional information for use during the consultation. Information requirements will differ depending on the type and location of your project and the species being affected. Early coordination is one of the most effective methods of streamlining any consultation. Ensuring you have considered the potential effects of your project on listed species in the design stage will reduce the need for project modifications.

Endangered Species Act

The purpose of the Endangered Species Act is to protect and recover many of our nation’s native plant and animal species that are in danger of becoming extinct. This protection extends to the habitats upon which they depend. The ESA is administered by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. The USFWS consults on birds, terrestrial animals, plants, amphibians and most freshwater fish. The NMFS consults on salmon, marine fish, marine mammals and marine reptiles. Under Section 7 of the ESA, the Corps is required by law to consult with the USFWS and/or NMFS on any permit application for proposed work that has the potential to affect threatened or endangered species or their designated critical habitat. This protection extends to the habitats upon which they depend. The ESA is administered by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. The USFWS consults on birds, terrestrial animals, plants, amphibians and most freshwater fish. The NMFS consults on salmon, marine fish, marine mammals and marine reptiles. Under Section 7 of the ESA, the Corps is required by law to consult with the USFWS and/or NMFS on any permit application for proposed work that has the potential to affect threatened or endangered species or their designated critical habitat.

Steps involved in a Section 7 consultation

1. The Corps, or the applicant, contacts the appropriate local USFWS and/or NMFS office to determine if listed species are present within the action area and obtains a list of species that may be present in the vicinity of the proposed project.
2. If listed species are present, the Corps will evaluate whether the proposed project might affect them. If the Corps determines that the project will have no effect [Definition] (Rollover definition: No effect: The appropriate ESA determination when the proposed action, including its interrelated and interdependent actions, will not affect (i.e., influencing or bring about any change) listed species or designated critical habitat either directly or indirectly), consultation with the USFWS and/or NMFS is not required.
3. If your project is not likely to adversely affect [Definition] (Rollover definition: Not likely to adversely affect: May affect, but “not likely to adversely affect” means that all effects are beneficial, insignificant, or discountable.) listed species, the Corps must initiate informal consultation with the USFWS and/or NMFS. If the USFWS and/or NMFS agrees with the Corps’ “not likely to adversely affect” determination, the USFWS and/or NMFS provides concurrence in writing and no further consultation is required.
4. If the project is likely to adversely affect listed species, then the Corps must request initiation of formal consultation. This request is made in writing to the USFWS and/or NMFS and includes a biological assessment [Definition] (Rollover definition: Biological Assessment: A document prepared for the Section 7 process to determine whether a proposed major construction activity under the authority of a Federal action agency is likely to adversely affect listed species, proposed species, or designated critical habitat.) containing details about your project and how it may affect listed species. If the package is incomplete, the USFWS and/or NMFS notify the Corps of the deficiencies. The Corps, in turn, will request more information from you about the project’s design, potential alternatives, and impacts. The USFWS and/or NMFS will prepare a biological opinion [Definition] (Rollover definition: Biological Opinion: A document that is the product of formal consultation, stating the opinion of the USFWS and/or NMFS on whether or not a Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.) that will generally include an incidental take [Definition] (Rollover definition: Take: As defined in the ESA, to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.) statement that contains terms and conditions that must be met. The USFWS and NMFS are allowed 135 days from the date that formal consultation is initiated, to consult, prepare and submit a biological opinion to the Corps.

Magnuson-Stevens Fishery Conservation and Management Act

The Magnuson-Stevens Fishery Conservation and Management Act is the primary law governing marine fisheries management in U.S. waters. The MSA established procedures to identify, conserve and enhance Essential Fish Habitat for those species regulated under a federal fisheries management plan. EFH are waters and habitat necessary to fish for spawning, breeding, feeding, or growth to maturity. If your proposed project may adversely affect EFH, the MSA requires the Corps to consult with the NMFS. This consultation may be combined with a Section 7 ESA consultation. For more information and guidance on EFH, including assessments, templates and a list of designated EFH for your area, please see the National Marine Fisheries Service's EFH website.

Before issuing a permit, the U.S. Army Corps of Engineers must fulfill requirements and procedures set forth in applicable historic preservation laws, including the National Historic Preservation Act and federal trust responsibilities with Native Americans.

Section 106 of the National Historic Preservation Act of 1966 requires federal agencies to take into account the effects of their undertakings on historic properties. A Department of the Army permit is considered to be such a federal undertaking. Historic properties, commonly referred to as cultural resources, are archaeological sites, historic districts, buildings or structures, and traditional cultural properties that are included in the National Register of Historic Places, or meet the criteria for inclusion in the National Register. The term encompasses artifacts, records and human burials related to and located within such properties. If there are indications your project has the potential to effect historic properties, you may be asked to complete a cultural resource assessment, which may include a historic property or cultural resource survey. The Corps uses the assessment or survey, to determine the possible effects of your project. We also consult with the State Historic Preservation Officer, Native American tribes and other interested parties. If the cultural resource assessment and consultation find that your project has the potential to adversely affect a historic property, you may be asked to modify your project to avoid or minimize the effects to the historic property. If the potential adverse effects cannot be resolved you may be required to enter into a Memorandum of Agreement, which outlines agreed-upon measures you will take to mitigate the adverse effects on historic properties.

Federal trust responsibilities

The federal government’s unique relationship with Native American tribes is embodied in the U.S. Constitution, treaties, court decisions, federal statues and executive orders. Native American treaties are not a granting of rights, but a protection and preservation of land and certain rights retained by the tribes when they sign treaties. Treaties with tribes are equal to federal laws passed by Congress. As a federal agency the Corps has federal trust responsibility to ensure that Native American rights reserved by treaties are not compromised as part of our permit application review.

In some states, there are as many as 29 federally recognized tribes. Depending on the location and scope of your work, Corps representatives may be required to consult with one or more tribes as part of the application review process. Consultation with these tribes may be formal or informal, but once initiated it must be complete before a permit decision can be finalized.

The Clean Water Act aims to protect water quality in the United States. Increased surface runoff from development has the potential to cause significant changes in aquatic ecosystems. Discharges of runoff may carry pollutants such as eroded soil, oil, metals, and pesticides that adversely affect oceans, streams, wetlands, lakes, and groundwater.

Section 401 of the CWA specifically addresses the discharge of pollutants by ensuring compliance with effluent limitations, new source performance standards, toxic pollutant limitations and other appropriate requirements of law or regulation. Section 401 water quality certifications are issued by state water pollution control agencies. This authority is delegated directly from the U.S. Congress to the states, and allows each state to establish policies to ensure that approved activities will meet applicable water quality standards.

When you apply for a Section 404 permit from the Corps, you are required to obtain Section 401 water quality certification from the appropriate state agency. On tribal lands, Native American tribes or the Environmental Protection Agency have Section 401 certification authority. In most cases, Section 401 certification is conducted at the same time as the Corps’ review. The Section 401 certification can cover both the construction and operation of the proposed project. Conditions of the Section 401 certification become conditions of the permit issued by the Corps.

Do I need to include anything with my application?

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.

Is there a streamlined Section 401 process for projects with minimal impacts?

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.

The federal laws which most commonly apply to the Corps Regulatory process are the Endangered Species Act, the National Historic Preservation Act and Section 401 of the Clean Water Act. Some projects will require additional evaluation under other related laws and regulations. The lists below are not exhaustive. They are provided to make you aware of other laws which affect our program. Some of these laws apply regularly and some of them are rarely applicable. You can contact your local Corps’ Regulatory Project Manager for more information.

Related Laws

• National Environmental Policy Act
• Clean Water Act - Section 402
• Coastal Zone Management Act of 1972
• Marine Mammal Protection Act
• Marine Protection Research and Sanctuaries Act of 1972 - Section 302
• Native American Graves Protection and Repatriation Act
• Wild and Scenic Rivers Act
• Fish and Wildlife Coordination Act
• Migratory Bird Treaty Act of 1918
• The Federal Power Act of 1920
• The Interstate Land Sales Full Disclosure Act
• The Deepwater Port Act of 1974
• The Ocean Thermal Energy Conversion Act of 1980
• The National Fishing Enhancement Act of 1984
• Outer Continental Shelf Lands Act of 1953 as amended

Related Regulations

• 40 CFR Part 230 – Clean Water Act Implementing Regulations and 404 (b)(1) Guidelines
• 40 CFR Part 22 - Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits
• 40 CFR Part 233 - State Program Regulations
• 40 CFR Part 233G - Tribal Regulations
• 40 CFR Part 1500 et seq - Council on Environmental Quality
• 36 CFR Part 800-899 - Advisory Council on Historic Preservation
• 50 CFR Parts 400-499 - Endangered Species Regulations
• 50 CFR Part 600 - Essential Fish Habitat Regulations