The U.S. Army Corps of Engineers (Corps) addresses the Section 404 and Section 10 permitting process for emergency situations at 33 CFR 325.2(e)(4).
At 33 CFR 325.2(e)(4), an “emergency” is a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures. The Corps also uses alternative permitting procedures, when appropriate, to expedite processing of permit applications for emergencies.
Additionally, in accordance with 33 CFR 326.3(c)(4) and 33 CFR 326.3(d)(1), in situations where an alleged unauthorized activity has occurred, or if the unauthorized activity would qualify for emergency procedures pursuant to 33 CFR part 325.2(e)(4) if an unauthorized activity were not involved, the District Engineer may decide it would not be appropriate to direct that the unauthorized work be stopped. Therefore, in such situations, the district engineer may, at their discretion, allow the work to continue, subject to appropriate limitations and conditions as they may prescribe, while the violation is being resolved.
Even in an emergency situation, reasonable efforts will be made to receive comments from interested federal, state, and local agencies and the affected public. Agencies may include, but are not limited to, the U.S. Fish and Wildlife Service, Environmental Protection Agency, State/Tribal Historic Preservation Officer, Advisory Council on Historic Preservation, state environmental agencies, Tribes, etc.
Following is Emergency Procedure Guidance:
- Determine if an emergency exists or potentially exists, in accordance with the Corps definition at 33 CFR 325.2(e)(4).
- If the situation is an emergency under the Corps definition at 33 CFR 325.2(e)(4), the appropriate Corps office should be contacted immediately.
- Follow-up the telephone contact as soon as possible with written documentation (via email) regarding the emergency and provide required information to the appropriate Corps office. ENG Form 4345 or potentially the U.S. Army Corps of Engineers, South Pacific Division, Nationwide Permit Pre-Construction Notification (PCN) Form may also be utilized to provide the information. The following information is the minimum necessary for the Corps to proceed:
- Name of and contact information for the applicant
- Location of work (vicinity map showing location), including coordinates
- Description of work/project, including basic dimensions and drawings. The drawings may be approximations and do not have to be to scale or be detailed engineering drawings.
- Cause of emergency (describe when and how the emergency occurred)
- Urgency of work (describe why the situation is an emergency using the Corps definition at 33 CFR 325.2(e)(4), and explain what would happen if emergency permitting procedures are not used)
- Time to complete emergency work (estimate beginning and end).
Note: If the work would not be completed for several months, it would not normally be considered an emergency per the Corps definition at 33 CFR 325.2(e)(4).
- Summary of resource agency coordination. Attempt to contact, and describe any coordination with, federal, state, and local resource agencies. Provide a summary of each agency’s comments on the proposed work.
4. The Corps will evaluate the information provided by the permit applicant. If an emergency procedure is followed, the permit applicant should proceed according to Corps direction in providing additional information or taking immediate action, as necessary. Once the Corps receives adequate information, it will develop the final emergency permitting procedure and complete the permit action.
Note: The permit applicant must ensure that the work requiring Corps authorization does not continue under an unauthorized situation, or commence under an emergency situation, until the Corps provides such authorization.
Potential Permitting Mechanisms:
Regional General Permit (RGP) NM/West TX 17-01: Emergency Repair and Protection Activities
This RGP is applicable to projects within New Mexico and West Texas. Authorization under this RGP requires that the Corps perform an expedited agency coordination upon receipt of the project information. Work must commence within 7 days of the date of the RGP verification letter form the Corps. However, there may be limited circumstances where after coordination with other agencies, the Corps determines that there are logistical considerations that necessitate an extension of between 1 and 7 days for work to commence. The time limit for completing the work authorized by this RGP is 45 days from the date of the RGP verification letter, unless otherwise specified in the Corps verification letter. If additional time is required to complete the authorized activity, a written request for a time extension, including justification for the request, must be submitted to the Corps at least 10 days prior to the expiration date of the RGP verification letter.
Regional General Permit (RGP) 96: Natural Disaster Mitigation & Flood-Related Activities in Colorado
The RGP is applicable to projects within Colorado. The Pre-Construction Notification must be submitted to the District Engineer within one (1) year following the date of the natural disaster unless, after a case-by-cases review, the Corps determines that there is a legitimate reason for the delay. The time for completing the work authorized by this RGP is one (1) year from the date of permit verification, unless otherwise specified in the Corps verification letter. If additional time is required to complete the authorized activity, a written request for a time extension, including justification for the request, must be submitted to the Corps at least 45 days prior to the expiration date of the verification letter.
Standard Individual Permit:
In rare and extreme cases where a general permit, such as a RGP or Nationwide Permit (NWP), cannot be used to authorize the work necessary in an emergency situation, a standard individual permit (SIP) is required. The South Pacific Division issued procedures (12502-SPD) for issuing SIPs in emergency situations. The procedures are identified within the Coordination between Albuquerque District and South Pacific Division is required to obtain approval to use these procedures and issue a SIP in an emergency situation. The authorization can be provided to the applicant within 24 hours of receipt of required information and additional permit procedures can be completed after the work to alleviate the emergency has occurred.
After the Fact Permit:
An After the Fact Permit may be used to authorize emergency work that meets the emergency situation definition at 33 CFR 325.2(e)(4), and where the work is needed to be performed immediately for safety reasons and it is not feasible to contact the Corps or the Corps has not responded within an acceptable time prior to work being conducted. The Corps will determine the appropriate After the Fact Permit to authorize the work. This may be a NWP, RGP, or Individual Permit. Following the completion of any required initial corrective measures, the District Engineer will accept an After the Fact permit application unless the Corps determines that one of the exceptions listed in 33 CFR 326.3(e)(1)(i) through (iv) is applicable. ENG Form 4345 or potentially the U.S. Army Corps of Engineers, South Pacific Division, Nationwide Permit Pre-Construction Notification (PCN) Form may be used to submit the required information for an After the Fact Permit request. Applications for After the Fact Permits will be processed in accordance with the applicable procedures in 33 CFR parts 320 through 325.
In emergency situations, such as flooding or other event caused by a natural disaster, the Corps Division Engineers, in coordination with the Corps District Engineers, are authorized to approve special processing procedures to expedite permit issuance. In accordance with South Pacific Division Emergency Procedures, the District Engineer will explain the circumstances and recommend special procedures to the Division Engineer who will instruct the District Engineer as to further processing procedures. This situation may involve the issuance of a Public Notice to clarify permitting procedures for managing the cleanup and repair caused by the event.