The U.S. Army Corps of Engineers’ (Corps) Regulatory Program involves the regulating of discharges of dredged or fill material into Waters of the US under Section 404 of the Clean Water Act (CWA) , and regulating structures or work in navigable Waters of the US under Section 10 of the Rivers and Harbors Appropriation Act of 1899. Proposed activities are regulated through a permit review process. California is within the South Pacific Division of the Army Corps of Engineers and will use the permit application available for download below for projects that require work within Waters of the US.

Permits must be obtained prior to projects being conducted in Corps jurisdiction, and a proposed project’s degree of impacts to these areas will determine what permit type is required. There is a three-step sequence for mitigating potential adverse impacts to the aquatic environment associated with a proposed discharge that is associated with all of the Section 404 Permits:

  1. avoidance,
  2. then minimization,
  3. and lastly compensation for unavoidable impacts to aquatic resources.

General Permit

A General Permit is issued for structures, work or discharges that will result in only minimal adverse effects to Corps jurisdictional waters. General permits are usually valid for five years and may be re-authorized by the Corps. There are three types of general permits:

      1. Nationwide Permit

Nationwide Permits are issued by the Corps on a national basis and are designed to streamline authorization of projects such as commercial developments, utility lines, or road improvements that produce minimal impact the nation’s aquatic environment.

There are currently 52 Nationwide Permits, and all 50 of the ongoing permits were renewed by the Corps in 2017 and 2 new ones were added. The two new Nationwide Permits provide an appropriate mechanism for quickly evaluating the removal of low-head dams and the construction and maintenance of living shorelines.

     2. Regional General Permit

A Regional General Permit is issued for a specific geographic area by an individual Corps District. Each Regional General Permit has specific terms and conditions, all of which must be met for project-specific actions to be verified. The map below shows the three Corps Districts that occur in California: Los Angeles, Sacramento, and San Francisco.

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     3. Programmatic General Permit

Programmatic General Permits are based on an existing state, local, or other federal program and designed to avoid duplication of that program. A State Programmatic General Permit (SPGP) is a type of permit that is issued by the Corps and designed to eliminate duplication of effort between Corps districts and state regulatory programs that provide similar protection to aquatic resources (one example would be a regional or county water districts management of reservoirs, basins, and aqueducts that are permitted with a General or Master Plan could be federally permitted with a Programmatic permit from the Corps). In some states, the SPGP replaces some or all of the Corps Nationwide Permits, which results in greater efficiency in the overall permitting process. Click the links above to see the Programmatic Permits in California.

Individual Permit

An Individual Permit (a.k.a. Standard Permit), is issued when projects have more than minimal individual or cumulative impacts, are evaluated using additional environmental criteria, and involve a more comprehensive public interest review. Because Individual Permits anticipate a higher level of impact, the expected increased mitigation and level of other agency and public involvement are important. Additional levels of assessment include an alternatives analysis that evaluates reasonable alternatives to the project that would avoid or reduce impacts to aquatic resources.

Corps Jurisdiction

Corps Jurisdiction  (which are the areas where permits are required prior to conducting your project) is defined in Section 404 of the CWA includes the following:

  • Territorial seas, measured seaward a distance of three miles;
  • Coastal and inland waters, lakes, rivers and streams, and their tributaries;
  • Interstate waters and their tributaries;
  • Wetlands adjacent to all of the above waters; and
  • Isolated wetlands and lakes, intermittent streams, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.

Jurisdictional Delineation

Jurisdictional Delineations are performed on a property in order to identify and delineate which waters are Waters of the U.S. and which are wetlands, and are therefore subject to Section 404 of CWA. The EPA and the Corps use the 1987 Corps of Engineers Wetlands Delineation Manual and Regional Supplements to define wetlands and Waters of the US. Waters of the US  are defined by the bed, bank, and ordinary high water mark.

The 1987 Corps of Engineers Wetlands Delineation Manual and Regional Supplements organizes characteristics of a potential wetlands into three categories:

  • Soils – wetlands have “hydric soils”, which means they are saturated with water and less oxygenated, but also less suitable for plant typical plant growth.
  • Vegetation – wetlands have “hydrophytic vegetation” or plant species that prefer to live in hydric soils where oxygen is low.
  • Hydrology – the presence of standing, pooled, or flowing water is also a good indicator of a wetland, but many wetlands do not have surface water present at some or all parts of the year. A wetland does not need to have surface water present at the time of the delineation to be considered a wetland, but it does need water present at some time during the year.

The manual and supplements contain criteria for each category. With this approach, an area that meets all three criteria is considered a wetland. Jurisdictional Delineations are required to be completed prior to a Section 404 permit application, but the level of documentation needed is determined by the Corps.

Jurisdictional Determination

In order for the Corps to implement Section 404 of the CWA and issue a permit it must first make a ruling on the extent of it’s own jurisdiction. An applicant performs a delineation (as described above) and can request one of two levels of analysis from the Corps when determining jurisdiction:

  1. Preliminary Jurisdictional Determination (Pre JD) are non-binding written indications that there may be Waters of the US, including wetlands, on a parcel, or indications of the approximate location(s) of Waters of the United States or wetlands on a parcel. Pre JDs are advisory in nature and may not be appealed.
  2. Approved Jurisdictional Determination is an official Corps determination that jurisdictional Waters of the US, or navigable Waters of the US, or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters on the project site determined to be jurisdictional under the CWA.