US Army Corps of Engineers
Portland District

Jurisdiction

Regulatory waterway imageThe U.S. Army Corps of Engineers is responsible for protecting many of the nation's aquatic environments including oceans, rivers, lakes, streams, ponds, and wetlands.

 

These areas are referred to by the Corps as waters of the United States. Work in, over or under waters of the United States may require a permit from the Corps. Permits, licenses, or similar authorizations may also be required by other federal, state, and local agencies.

 Diagram showing the Regulatory jurisdiction of the U.S. Army Corps of Engineers

Permit authorities

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Section 10 of the Rivers and Harbors Act of 1899 governs work impacting navigable waters.

Examples of activities requiring Section 10 permits:

  • Construction or installation of piers, wharves, bulkheads, dolphins, marinas, ramps, floats, overhanging decks, buoys, boat lifts, jet ski lifts, intake structures, outfall pipes, and cable or pipeline crossings
  • Dredging and excavation.
  • Overhead transmission lines, tunnels, or directional bore holes.

Section 404 of the Clean Water Act regulates the placement of dredged or fill material into waters of the United States.

Examples of activities requiring Section 404 permits: 

  • Depositing fill, dredged, or excavated material. 
  • Grading or mechanized land clearing of wetlands. 
  • Ditch excavation activities in wetlands and associated discharge of dredged materials into wetlands. 
  • Fill for residential, commercial, or recreational developments. 
  • Construction of revetments, groins, breakwaters, beach enhancement, jetties, levees, dams, dikes, and weirs. 
  • Placement of riprap and road fills. 
  • Bank and stream channel stabilization projects.

Section 404 exemptions (33 CFR 323.4):
You do not generally need a permit under Section 404 for activities associated with normal farming, ranching, and forestry activities that are established and ongoing. Some of these activities include plowing, cultivating, minor drainage, and harvesting for the production of food, fiber and forest products. To find out whether specific activities are exempt, contact your local Corps office.

Section 103 of the Marine Protection, Research and Sanctuaries Act provides the authority to issue permits for transporting dredged material excavated from navigable waters of the United States to be dumped into ocean waters. This includes dredged material shipped by truck to a port site for ocean disposal.

Waters of the United States and geographic extent

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The U.S. Army Corps of Engineers has jurisdiction over two broad categories of water: navigable waters of the United States and waters of the United States (for more information click this link).

Navigable waters of the United States are regulated under Section 10 of the Rivers and Harbors Act. These are waters that are subject to the ebb and flow of the tide and/or are presently used, have been used in the past or could be used to transport interstate or foreign commerce. 

See a list of Oregon’s navigable riverways, harbors and bays here.

These waters are regulated under Section 404 of the Clean Water Act. These include navigable waters, lakes, ponds, small streams, ditches, and adjacent wetlands. Isolated waters such as old river scars, cutoff sloughs, prairie potholes and abandoned construction and mining pits may also be waters of the United States. An important point is that waters of the United States include natural areas as well as areas that are man-made. If you are unclear about whether you have waters of the United States in your project area, please check with your local Corps Project Manager.

The Corps’ regulatory jurisdiction extends to tidal waters of the United States, non-tidal waters of the United States, and territorial seas.
Corps jurisdiction over tidal waters of the United States is outlined in Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. Section 10 says the Corps’ jurisdiction in tidal waterways extends to the mean high water line. The mean high water line is the line on the shore established by the average of all high tides. It is established by survey based on available tidal data, preferably averaged over a period of 18.6 years because of the variations in tide. In the absence of such data, less precise methods to determine the mean high water mark are used, such as physical markings, lines of vegetation or comparison of the area in questions with an area having similar physical characteristics for which tidal data are readily available.

Section 404 says Corps jurisdiction in tidal waters extends to the high tide line. High tide line is the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general 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.
In non-tidal waters of the United States, the Corps’ jurisdiction extends to the ordinary high water mark, a term used by the Corps in reference to the line on the shore of streams and lakes established by fluctuations of water. The physical characteristics of these fluctuations include 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. When adjacent wetlands are present, the Corps’ jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands. When the water consists only of wetlands, the jurisdiction extends to the limit of the wetland boundary.
The Corps’ jurisdiction in territorial seas begins at the shoreline and extends in a seaward direction a distance of three nautical miles. The Outer Continental Shelf Lands Act extends the jurisdiction of the Corps, under Section 10 of the Rivers and Harbors Act, to the seaward limit of the outer continental shelf for the construction of artificial islands, installations, and other devices on the seabed.

Recognizing wetlands

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The US Army Corps of Engineers (Corps) and the US Environmental Protection Agency define wetlands as follows:

Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

Wetlands are areas that are covered by water or have waterlogged soils for long periods during the growing season. Plants growing in wetlands are capable of living in saturated soil conditions for at least part of the growing season. Wetlands such as swamps and marshes are often obvious, but some wetlands are not easily recognized, often because they are dry during part of the year or "they just don't look very wet" from the roadside.

Some of these wetland types include, but are not limited to, many bottomland forests, pocosins, pine savannahs, bogs, wet meadows, potholes, and wet tundra. The information presented here usually will enable you to determine whether you might have a wetland. If you intend to place dredged or fill material in a wetland or in an area that might be a wetland, contact the local Corps District Office for assistance in determining if a permit is required.

Section 404 of the Clean Water Act requires that anyone interested in depositing dredged or fill material into "waters of the United States, including wetlands," must receive authorization for such activities. The Corps has been assigned responsibility for administering the Section 404 permitting process. Activities in wetlands for which permits may be required include, but are not limited to:

  • Placement of fill material.
  • Ditching activities when the excavated material is sidecast.
  • Levee and dike construction.
  • Mechanized land clearing.
  • Land leveling.
  • Most road construction.
  • Dam construction.

The final determination of whether an area is a wetland and whether the activity requires a permit must be made by the appropriate Corps District Office.

The Corps uses three characteristics of wetlands when making wetland determinations: vegetation, soil, and hydrology. Unless an area has been altered or is a rare natural situation, wetland indicators of all three characteristics must be present during some portion of the growing season for an area to be a wetland. Each characteristic is discussed below.

However, there are some general situations in which an area has a strong probability of being a wetland. If any of the following situations occur, you should ask the local Corps office to determine whether the area is a wetland:

  • Area occurs in a floodplain or otherwise has low spots in which water stands at or above the soil surface during the growing season. Caution: Most wetlands lack both standing water and waterlogged soils during at least part of the growing season.
  • Area has plant communities that commonly occur in areas having standing water for part of the growing season (e.g., cypress-gum swamps, cordgrass marshes, cattail marshes, bulrush and tule marshes, and sphagnum bogs).
  • Area has soils that are called peats or mucks.
  • Area is periodically flooded by tides, even if only by strong, wind-driven, or spring tides.

Many wetlands can be readily identified by the general situation stated above. For the boundary of these areas and numerous other wetlands, however, it is unclear whether these situations occur.

In such cases, it is necessary to carefully examine the area for wetland indicators of the three major characteristics of wetlands: vegetation, soil, and hydrology. Wetland indicators of these characteristics, which may indicate that the area is a wetland, are described on the following pages.

Nearly 5,000 plant types in the United States may occur in wetlands. These plants, known as hydrophytic vegetation, are listed in regional publications of the US Fish and Wildlife Service.

The National Wetland Plant List plays a critical role in identifying wetlands and the likelihood of particular plant species in specific geographic locations. The NWPL is a list of wetland plants and their assigned indicator statuses.  An indicator status reflects the likelihood that a particular plant occurs in a wetland or upland.

However, you can usually determine if wetland vegetation is present by knowing a relatively few plant types that commonly occur in your area. For example, cattails, bulrushes, cordgrass, sphagnum moss, bald cypress, willows, mangroves, sedges, rushes, arrowheads, and water plantains usually occur in wetlands.

Other indicators of plants growing in wetlands include trees having shallow root systems, swollen trunks (e.g., bald cypress, tupelo gum), or roots found growing from the plant stem or trunk above the soil surface. Several Corps offices have published pictorial guides of representative wetland plant types.

If you cannot determine whether the plant types in your area are those that commonly occur in wetlands, ask the local Corps District Office or a local botanist for assistance.

There are approximately 2,000 named soils in the United States that may occur in wetlands. Such soils, called hydric soils, have characteristics that indicate they were developed in conditions where soil oxygen is limited by the presence of saturated soil for long periods during the growing season. If the soil in your area is listed as hydric by the US Soil Conservation Service (CSC), the area might be a wetland.

If the name of the soil in your area is not known, an examination of the soil can determine the presence of any hydric soil indicators, including:

  • Soil consists predominantly of decomposed plant material (peats or mucks).
  • Soil has a thick layer of decomposing plant material on the surface.
  • Soil has a bluish gray or gray color below the surface, or the major color of the soil at this depth is dark (brownish black or black) and dull.
  • Soil has the odor of rotten eggs.
  • Soil is sandy and has a layer of decomposing plant material at the soil surface.
  • Soil is sandy and has dark stains or dark streaks of organic material in the upper layer below the soil surface. These streaks are decomposed plant material attached to the soil particles. When soil from these streaks is rubbed between the fingers, a dark stain is left on the fingers.

Wetland hydrology refers to the presence of water at or above the soil surface for a sufficient period of the year to significantly influence the plant types and soils that occur in the area. Although the most reliable evidence of wetland hydrology may be provided by gaging station or groundwater well data, such information is limited for most areas and, when available, requires analysis by trained individuals. Thus, most hydrologic indicators are those that can be observed during field inspection. Most do not reveal either the frequency, timing, or duration of flooding or the soil saturation.

However, the following indicators provide some evidence of the periodic presence of flooding or soil saturation:

  • Standing or flowing water is observed on the area during the growing season.
  • Soil is waterlogged during the growing season.
  • Water marks are present on trees or other erect object. Such marks indicate that water periodically covers the area to the depth shown on the objects.
  • Drift lines, which are small piles of debris oriented in the direction of water movement through an area, are present. These often occur along contours and represent the approximate extent of flooding in an area.
  • Debris is lodged in trees or piled against other object by water.
  • Thin layers of sediments are deposited on leaves or other objects. Sometimes these become consolidated with small plant parts to form discernible crust on the soil surface.

One or more indicators of wetland vegetation, hydric soil, and wetland hydrology must be present for an area to be a wetland. If you observe definite indicators of any of the three characteristics, you should seek assistance from either the local Corps District Office or someone who is an expert at making wetland determinations.

Contact the Corps District Office that has responsibility for the Section 404 permitting process in your area. This office will assist you in defining the boundary of any wetlands on your property, and will provide instructions for applying for a Section 404 permit, if necessary.