Albuquerque District's Regulatory Program Overview PowerPoint Presentation
Section 10 of the Rivers and Harbors Act of 1899 requires approval from the U.S. Army Corps of Engineers (Corps) prior to the accomplishment of any work in or over navigable waters of the United States, or which affects the course, location, condition or capacity of such waters. Typical activities requiring Section 10 permits are:
- Construction of piers, docks, wharves, bulkheads, dolphins, marinas, ramps, floats, intake/outfall structures, and cable or pipeline crossings.
- Dredging and excavation
Section 10 Waters within the Albuquerque District
Section 404 of the Clean Water Act requires approval from the Corps prior to discharging dredged or fill material into waters of the United States (WOTUS). Typical activities requiring Section 404 permits include, but are not limited to the following:
- Construction of flood control and stormwater management facilities, mining, grading, intake/outfall structures, road crossings, pipelines
- Construction of boat ramps, docks, piers, shoreline or bank stabilization, and fish habitat
- Construction of revetments, groins, breakwaters, levees, dams, dikes, drop-structures and weirs
- Placement of riprap, culverts, and footings
- Dredging and other excavation where the discharge results in more than incidental fallback (33 CFR 323.2(d)(1)) of dredged or excavated material
Activities requiring a Section 10 or Section 404 permit from the Corps may be authorized by one or more general permits (GPs), which cover categories of activities that typically result in minimal individual and cumulative impacts to the aquatic environment, or an individual permit (IP). There are three types of GPs: nationwide permits (NWPs), which are available across all 50 states and U.S. territories, regional general permit (RGPs), which are issued regionally by Corps districts, and programmatic general permits (PGPs). Currently, there are no PGPs within the Albuquerque District.
If an activity does not meet the terms and conditions of a GP, or if the Corps determines that the activity would result in more than minimal impacts, the project sponsor must apply for an IP. There are two types of IPs: Standard IPs and Letters of Permission (LOPs). Standard IPs require a public notice, interagency coordination/consultation, an evaluation of alternatives and cumulative and secondary impacts, and a public interest review to ensure the proposed activity would be the least environmentally damaging practicable alternative (LEDPA) and would not be contrary to the public's interest. Similar to standard IPs, LOPs involve interagency coordination and a public interest review, but they do not require a public notice.
There are a few activities which involve the placement of fill in a waterway that are not subject to the Section 404 Regulatory Program. However, the fill must not change the use of the water and the flow must not be impaired. These exempted activities are briefly described below and located in the regulations at 33 CFR 323.4.
- Normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage and harvesting.
- Maintenance or emergency repair of a currently serviceable structure such as dams, riprap, abutments, and levees. The original design may not be changed.
- Maintenance or construction of stock ponds or irrigation ditches. Maintenance (not construction) of drainage ditches. Discharges associated with irrigation facilities are included.
- Construction of temporary sedimentation basins at construction sites if fill material is not placed in waters of the United States.
- Activities for which a state has an approved program under Section 208 of the Clean Water Act for non-point pollution sources.
- Construction or maintenance of farm roads, forest roads, or temporary mining roads. Best management practices must be followed to reduce flow pattern impairment and aquatic impacts (see 33 CFR 323.4 for more information).
Who Should Obtain a Permit?
Any person, firm, or agency (including federal, state, tribal and local governmental agencies) planning to work in WOTUS should first contact the Corps regarding the need to obtain a permit from the Regulatory Division. Permits, licenses, variances, or similar authorization may also be required by other federal, state and local statutes. The necessary permits are required even when land next to or under the water is privately owned.
Both the property owner and contractor may be held liable for violation of federal law if work begins before permits have been obtained. Penalties for proceeding with work without a permit issued by the Corps may include:
- Removal of work and restoration of area
- Administrative penalties of up to $25,000 per day for each violation
- A fine of up to $50,000 per day for each violation
- Up to three years in prison
How to Obtain a Permit:
Section 401 Water Quality Certification (WQC) is required for all Section 404 permits. WQC is administered by state agencies, tribes, or the Environmental Protection Agency (EPA), depending on the state or tribal land where the project is located.
For a list of NWPs and information on how to request a written verification that an activity is covered by an NWP, visit our NWP webpage at www.spa.usace.army.mil/reg/NWP.
For a list of RGPs available in your state and information on how to request a written verification that an activity is covered by an RGP, please visit our NWP webpage at www.spa.usace.army.mil/reg/RGP. WQC has been issued by the State of Texas for all current RGPs available in that state. Colorado is certified by Code of Colorado Regulation No. 82 for all current RGPs available in that state. For New Mexico, the terms and conditions of WQC is dependent on the specific RGP, which are included in the permit itself.
For information on how to apply for a standard IP, including the application form with instructions on how to submit a complete application packet, please visit our IP webpage at www.spa.usace.army.mil/reg/IP. When applying for a standard IP, the applicant must also obtain Individual WQC from the appropriate state agency or tribe with regulatory authority, or EPA in the project area.
For information on LOPs, lease visit our LOP webpage at www.spa.usace.army.mil/reg/LOP.
All applications for an individual permit must include a statement describing how impacts to WOTUS will be avoided and minimized. All permit requests involving the loss of greater than 0.1 acre of wetlands or 0.03 acre of streambed must also include either a statement describing how the applicant will compensate for the loss of aquatic resource functions associated with the unavoidable impacts to WOTUS or a statement explaining why compensatory mitigation should not be required for the impacts. For more information on the mitigation requirements associated with Section 404 permits, please visit our mitigation page at www.spa.usace.army.mil/reg/MITIGATION.
The Division Engineer of South Pacific Division issued permitting procedures for emergency situations that require immediate authorization within the Albuquerque, Los Angeles, Sacramento, and San Francisco Districts. An emergency is defined as a situation that 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 (33 CFR 325.2). In the case of an emergency where authorization from the Corps is required, contact the local district office in your area as soon as possible.
There are no fees associated with GPs and LOPs.
Fees for standard individual permits are assessed according to the proposed use:
- Commercial and industrial use: $100
- Private or noncommercial use: $10
- Federal, state, or local government agencies: $0
All fees are due when the permit decision is initially proffered to the applicant.