US Army Corps of Engineers
Portland District

Regulatory Permitting

Planning Your Project

The information in the following tabs will explain why the Corps needs these details to effectively evaluate your project and the impacts it will have on our environment. If you have additional questions during the planning of your project, you may contact your local Regulatory Project Manger to request a Pre-application Meeting.

Waters of the United States

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 (33 CFR 328 & 329.)

Navigable waters of the United States

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 navigable waters in your state.

Waters of the United States

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.

Geographic Extent

The Corps’ regulatory jurisdiction extends to the following geographic boundaries:

  • Tidal waters of the United States. 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. 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
  • Non-tidal waters of the United States 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.
  • Territorial seas. 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.

Wetland Delineation

The Corps has jurisdiction over waters of the United States, including wetlands. A wetland delineation identifies the boundaries of a wetland and may also identify the limits of other potential waters of the United States found on a property. It is particularly helpful since a wetland might not be wet year-round; in fact, some high-value wetlands are only seasonally wet. A Wetland Delineation report helps the Corps determine if a permit is required for a proposed activity.

What is a wetland?

Wetland identification is complex; however, they are generally characterized by:

  • Soils that are saturated or flooded during some parts of most years.
  • Vegetation that is adapted for moist soil conditions such as bulrush, cattails, rushes, sedges, willows, etc.
  • Hydrology that has a presence of surface water or saturation during some part of the growing season.

Examples include swamps, marshes, bogs, vernal pools, interdunal swales, wet prairies and similar areas.

Completing a Wetland Delineation

Wetland delineations are prepared in accordance with the 1987 Corps of Engineers Wetlands Delineation Manual and the applicable Regional Supplement. A wetland delineation is performed by individuals who have been trained in delineating wetlands and have the required technical expertise. The wetland delineator will take data points to help them identify the wetland boundary. The delineation is summarized in a Wetland Delineation Report. The report contains data sheets supporting the delineator’s conclusions and a map showing the location of all wetlands and other potential waters of the United States on the property.

The location of wetlands and other waters are incorporated into any project plans where a permit is being requested and the report is provided with the permit application for review and concurrence. A wetland delineation may also assist the reviewer in determining where wetland impacts can be avoided or minimized and to assess the secondary and cumulative impacts of the proposal.

Purpose and Need

A permit application requires a purpose and need statement [33 CFR 325.1(d)]. The applicant should write this in their own words, telling the Corps what they believe the purpose to be. The Corps will use this information to develop a more formal “purpose and need” statement, which will help identify project alternatives that need to be considered as part of the evaluation under the National Environmental Policy Act, the Section 404(b)(1) Guidelines, and the Corps’ own public interest review factors.

The need for a project typically is something that can be measured or quantified. For example, a community needs housing to accommodate the housing needs of the 1000 new employees hired by a local company.

A project’s purpose is based on the need it satisfies and is defined in two ways: basic and overall. The basic purpose is defined in the simplest terms. For example, the basic purpose of residential development is to provide shelter or housing. The overall purpose is more specific and captures the more detailed aspects of why the project is needed. For example, the project proposes to build town-homes, duplexes and apartments.

Another example of a purpose and need statement submitted by an applicant: “To remove accumulated sediment in front of the Sunshine Harbor boat ramp in order to allow continued operation of the Sunshine ferry.”

The purpose of the project is to remove sediment, which is needed to allow continued ferry operation. The next step is to use this statement to identify the different ways that sediments can be removed (or project alternatives), such as dredging, sluicing, flow modification, and/or other measures. Please see “Alternatives Analysis” under the “Permitting” tab to learn more about how project alternatives may be developed and evaluated.

A purpose and need statement may also explain anticipated benefits of a project, such as any public, social, economic, or environmental benefits of the project. For example: “To improve fish and wildlife habitat functions in degraded wetlands through restoration activities at the Wetland Prairie Preserve. Anticipated benefits include environmental enhancements to habitat for migratory birds and amphibian species in the area through increased acreage of forested and palustrine emergent wetlands.”

Please note that project benefits are part of the overall project review. They are not used to eliminate or screen out project alternatives, but are taken into consideration in the permit decision.

Avoidance and Minimization

Protecting our nation’s aquatic resources requires the Corps to evaluate each proposed project for its possible impacts on the environment. This means applicants must consider ways to avoid or minimize impacts to waters of the United States, including wetlands. Avoidance means a project avoids or does not impact waters of the United States. This could be done by building a project at a different location or changing its size or configuration. Minimization means reducing impacts to the aquatic environment to the greatest extent possible, maybe through a smaller or different project design, technique or the time of year you do construction.

Practical application

Include a statement in your permit application addressing measures you plan to take, showing how your project avoids or minimizes impacts to the aquatic environment.

Why It’s Important

The Corps is required to consider all possible mitigation solutions, including avoidance, minimization or ways to rectify or compensate for unavoidable project impacts (33 CFR 320.4(r)). A permit cannot be issued by the Corps unless your project has avoided or minimized impacts to the aquatic environment to the greatest extent feasible.

Things to consider when looking for ways to avoid and minimize project impacts

  • Alternative on-site configurations, including those that don’t require a permit
  • Alternative sites - you do not need to own the site for it to be considered, however you must be able to reasonably obtain, utilize, expand or manage the site to fulfill the basic purpose of the activity (40 CFR 230.10(a)(2)).
  • Least environmentally damaging practicable [Definition] (rollover definition: Practicable: An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonable be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered.) alternative.

Presumptions made by the Corps when considering a project proposal

There are a few things the Corps will assume about a project unless your application shows otherwise. For instance, if your project is not water dependent [Definition] (rollover definition: Water Dependent: Examples of water dependent activities: marina construction or a boat dock. Examples of activities that are NOT water dependent: housing developments or roads.) it will be presumed that there is no need to discharge material into waters of the United States. If you must place fill in waters of the United States, including wetlands, you must also prove there is no reasonable, less damaging alternative available. You’ll find specifics about presumptions in 40 CFR 230.10(a).

Streamlined Reviews

The U.S. Army Corps of Engineers offers some tools which can expedite the permitting process. They are programmatic consultations and general permits. We encourage you to become familiar with these when planning your project.

Programmatic Consultations

A common type of programmatic consultation is a Programmatic Biological Opinion, or BiOp. When a proposed project will affect species listed under the Endangered Species Act, the Corps is required to consult with the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service. The Corps cannot issue a permit until that consultation is complete. Through the programmatic consultation process, Endangered Species Act compliance is completed ahead of time for a group of activities. If your project design fits the criteria of a programmatic consultation, it can significantly reduce the consultation time. If your project does not fit into a programmatic consultation, an individual consultation is required. Individual consultations can take up to 135 days depending on project impacts and might be longer in some cases.

General Permits

General permits authorize activities that are similar in nature and cause only minimal adverse environmental impacts to aquatic resources, separately or on a cumulative basis. There are two types of general permits: nationwide permits and regional general permits.

Nationwide permits

Nationwide permits issued on a national basis. They are intended to streamline authorization of projects such as commercial developments, utility lines or road improvements, which have minimal impacts to the aquatic environment. They can minimize delay and reduce paperwork for certain activities determined to have minimal impacts. Nationwide permits typically have regional conditions designed to protect local aquatic ecosystems. An example of a regional condition is requiring the permittee to install and maintain adequate soil erosion control measures during and after construction to protect downstream waters.

Regional general permits

Regional general permits are very similar to nationwide permits, but are issued for a specific geographic area by individual Corps Districts. Each regional general permit has specific terms and conditions, all of which must be met before the project-specific action can be authorized. Regional general permits may be issued with an associated Endangered Species Act compliance document, water quality certification, or other required laws to further streamline the permit process by eliminating the need to complete these processes for individual permit actions.

Review times

If your proposed project falls within the guidelines of a general permit, our goal is to process these within 60 calendar days. However, some activities, issues or legal requirements may require additional review and take more time.

Kaizen Meetings

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Pre-application consultation

permit application requires a clear description of the proposed project, to include drawings, maps and other supporting documents. One of the U.S. Army Corps of Engineers’ goals is to help you understand what you should be thinking about while you’re planning and designing your project, before you apply for a permit. Something as easy as changing the types of materials you propose to use, or the time of year you plan to do the work can affect the time it takes to review your permit application.

The easiest way to ensure your project complies with state and federal agency requirements is to find out what they are  when you are planning your project and incorporate design elements that minimize environmental impact. This often expedites the permitting process. If you want to set up a pre-application meeting when planning of your project, contact your local Corps Regulatory project manager.

Construction Timing

In some states, there are guidelines in place to assist the public in minimizing potential impacts to important fish, wildlife and habitat resources. This means that the work you propose to do may only be allowed during a specified time of year.

Additionally, if your proposed project has the potential to affect endangered/threatened species, their Critical Habitat and/or Essential Fish Habitat you should anticipate that the Corps may need to consult with the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service during its review of your permit application. If a Biological Opinion is prepared for the project, it may specify when the work can occur in order to minimize the effects to their trust resources.

Dredging

Preplanning to avoid or minimize stormwater run-off can save you money and time. By simply developing an erosion and sediment control plan, it’s possible to reduce or eliminate the need for costly mitigation, pre-treatment and monitoring requirements.

Stormwater runoff, whether from land or areas such as paved streets, parking lots and building rooftops, often contains pollutants. Some effects of stormwater runoff include accelerated channel erosion, degraded stream habitat, declines in invertebrate and vertebrate populations and introduction of pollutants such as copper, zinc, oil, pesticides and sediment to the aquatic environment.

If your project could cause pollutants to be released into wetlands, ponds, lakes, streams, rivers, marine waters or groundwater, you will likely need a permit from the state agency responsible for water quality. These discharges may occur through a variety of systems including stormwater run-off, land irrigation, seepage ponds or onsite sewage systems.

A Clean Water Act Section 401 Certification is a water quality permit that must be obtained prior to issuance of a Corps permit. In some cases, before your state can issue a 401 water quality certification, they may require a stormwater management plan.

Learn more about Section 401 water quality certifications in the Related Laws & Requirements section.

Stormwater Management Plan

Preplanning to avoid or minimize stormwater run-off can save you money and time. By simply developing an erosion and sediment control plan, it’s possible to reduce or eliminate the need for costly mitigation, pre-treatment and monitoring requirements.

Stormwater runoff, whether from land or areas such as paved streets, parking lots and building rooftops, often contains pollutants. Some effects of stormwater runoff include accelerated channel erosion, degraded stream habitat, declines in invertebrate and vertebrate populations and introduction of pollutants such as copper, zinc, oil, pesticides and sediment to the aquatic environment.

If your project could cause pollutants to be released into wetlands, ponds, lakes, streams, rivers, marine waters or groundwater, you will likely need a permit from the state agency responsible for water quality. These discharges may occur through a variety of systems including stormwater run-off, land irrigation, seepage ponds or onsite sewage systems.

A Clean Water Act Section 401 Certification is a water quality permit that must be obtained prior to issuance of a Corps permit. In some cases, before your state can issue a 401 water quality certification, they may require a stormwater management plan.

Learn more about Section 401 water quality certifications in the Related Laws & Requirements section.

When the Corps reviews permit applications that involve dredging, we must consider if the material being removed contains contaminants. The Corps will use site history information you provide to determine if further sediment testing will be required. Testing is necessary to ensure that contaminated material is handled and disposed of properly. If contaminants in the dredge area exceed screening thresholds, your project may need to be modified. Early coordination is essential to ensure compliance with federal laws, to streamline the permitting process, and to ensure aquatic, human health, and bioaccumulation impacts are minimized.