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Regulatory Program

Published Jan. 18, 2024
Updated: Jan. 18, 2024

The Department of the Army Regulatory Program is one of the oldest in the Federal Government. Initially it served a fairly simple, straightforward purpose: to protect and maintain the navigable capacity of the nation's waters. Time, changing public needs, evolving policy, case law, and new statutory mandates have changed the complexion of the program, adding to its breadth, complexity, and authority. The Regulatory Program is committed to protecting the Nation's aquatic resources and navigation capacity, while allowing reasonable development through fair and balanced decisions.  The Corps evaluates permit applications for essentially all construction activities that occur in the Nation's waters, including wetlands.

The Great Lakes and Ohio River Division has the responsibility for regulating and permitting work in the “Waters of the United States”, including wetlands, within the Great Lakes region and the Ohio River basin. The goals of the regulatory program are to protect the aquatic environment, efficiently manage the permitting process, and ensure fair and reasonable decisions for the public. In pursuit of those goals, the Division issues more than 10,000 permits annually.

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. This final rule conforms the definition of “waters of the United States” to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Parts of the January 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. Therefore, the agencies have amended key aspects of the regulatory text to conform it to the Court’s decision. The conforming rule, "Revised Definition of 'Waters of the United States'; Conforming," published in the Federal Register and became effective today 8 September 2023.

 

Where the January 2023 Rule is not enjoined, the agencies are implementing the January 2023 Rule, as amended by the conforming rule. In the jurisdictions and for the parties where the January 2023 Rule is enjoined, the agencies are interpreting the phrase “waters of the United States” consistent with the pre-2015 regulatory regime and the Supreme Court’s decision in Sackett. The below map illustrates which definition of “waters of the United States” is generally operative in each state across the country as a result of litigation challenging the 2023 Rule. The map is also available at https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update. As the litigation continues, EPA will update the map, when possible, to reflect the most current information that is made available to the EPA and the Army.

Corps of Engineers Regulatory Authorities 

There are three major U.S. Army Corps of Engineer authorities that establish permit requirements:

  • Section 404 of the Clean Water Act of 1972 prohibits the discharge of dredged or fill material into waters of the United States, including wetlands, without a Department of the Army permit.
  • Section 10 of the Rivers and Harbors Act of 1899 prohibits the obstruction or alteration of navigable waters of the United Sates without a Department of the Army permit.
  • Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 prohibits the transportation of dredged material for ocean dumping without a Department of the Army permit.

Applicants may appeal standard permit denials and permit conditions, and jurisdictional determinations under an administrative appeal process managed by the Great Lakes and Ohio River Division.

Obtain a Permit from the Corps of Engineers

Any person, firm, or agency (including federal, state, and local government agencies) planning to work in navigable waters of the United States, or dump or place dredged or fill material in waters of the United States should contact the Corps of Engineers Regulatory office in your area to obtain a permit. It is essential when you plan your project, you seek all practical attempts to AVOID or MINIMIZE impacts to wetlands or waters of the US, as required under the Clean Water Act. The permit process is not automatic.

Whether a permit will be issued, the requirements attached to the permit, and the type of permit issued, are all determined by the type of activity, the extent of the impacts, and the specific environment impacted. Even for minor, unavoidable impacts to waters, the Corps of Engineers will consider attaching mitigation requirements to the permit for compensating for any environmental impacts.

The Corps of Engineers issues either general or individual permits. Regulatory project managers will try to work with applicants to design their projects to make sure that any impacts to waters or wetlands are extremely minor, to best preserve our aquatic resources and to enable applicants to qualify for the general permit program. The general permit program, both through the Nationwide Permit and the Regional General Permit program, are reserved for only the most minor impacts to streams, wetlands and other waters.

Individual permits are generally reserved for projects with potential for substantial environmental impacts. These permits require a full public interest review, including public notices and coordination with involved agencies, interested parties and the general public. Another type of individual permit used for very minor impacts and in special circumstances is the Letter of Permission (LOP). However, through the general permit program, the applicant can realize substantial savings if the project can be scoped to meet the requirements of these types of permits.

Administrative Appeals for Corps of Engineers' Decisions

The Corps of Engineers has an administrative appeal process that enables an affected party to appeal certain Corps decisions with which they disagree while potentially avoiding the cost/delay of court litigation. Decisions which can be appealed include denied individual permits, proffered individual permits, and approved jurisdictional determinations. These appealable decisions are most commonly made by Corps district offices, and requests for appeal of such decisions are submitted to the next higher authority, most commonly the Corps division offices. It is the policy of the Corps of Engineers to promote and maintain an administrative appeal process that is independent, objective, fair, prompt, and efficient.

Requests for appeal must be received by the division office within 60 days of the date of the appealable decision. Where an appeal is accepted, a site visit and/or an appeal conference or meeting may be conducted. The division engineer will make a determination on the merits of the appeal based on a review of the district’s administrative record, and either confirm the district’s initial decision or remand the decision to the district for reconsideration. The division engineer will make a final decision on the merits of the appeal at the earliest practicable time.

Contact the LRD Administrative Appeals Officer at (513) 684-2699 or email CELRD-RegulatoryAndPermitting@usace.army.mil

Appeal Decisions, Regulations, and Guidance

The appendices below are included in the Administrative Appeal regulation.

  • Appendix A: Administrative Appeal Process for Permit Denials and Proffered Permits
  • Appendix B: Applicant Options with Initial Proffered Permit
  • Appendix C: Administrative Appeal Process for Approved Jurisdictional Determinations
  • Appendix D: Process for Unacceptable Request for Appeal

Which permit is right for you? 

Individual Permits (IP)

Standard Permit:

  • A Standard Permit is an individual permit that involves a full public interest review of an individual application for a Department of the Army permit. A public notice is distributed to all known interested persons. After evaluating all comments and information received, an environmental assessment is prepared and a final decision on the application is made.
  • The Public Notice is prepared by the Corps project manager and is distributed to post offices, adjacent property owners, appropriate local governmental officials, including Federal and State resource agencies, Congressional representatives, local news media, the applicant and other interested persons.  The comment period is usually 30 days. The permit decision is generally based on the outcome of a public interest balancing process where the benefits of the project are balanced against the detriments. A permit will be granted unless the proposal is found to be contrary to the public interest.
  • Processing time usually takes 90 to 120 days unless a public hearing is required, or an environmental impact statement must be prepared.

Letter of Permission (LOP)

  • A Letter of Permission is an abbreviated permit review used to cover activities which slightly exceed NWP or RP criteria. (Note:  The definition of “slightly” should be based on best professional judgment of the project manager).
  • LOPs are issued after a 15-day coordination period with Federal and State resource agencies, adjacent property owners, and a public interest evaluation.   
  • LOP procedures can be used for minor noncontroversial Section 10 projects and certain categories of Section 404 activities established through appropriate regulatory procedure

General Permits

Nationwide Permits

A nationwide permit is a form of general permit that authorizes a category of activities throughout the nation. These permits are valid only if the conditions applicable to the permits are met. If the conditions cannot be met, then a regional or individual permit will be required.

Regional Permits 

Regional permits are issued by the District Engineer for a general category of activities having minor impacts that do not fall under the existing Nationwide Permit authorization. Regional Permits were developed to help expedite the processing to specific types of applications.

Use the Regulatory Office Locator to find an office near you to discuss permit options.

Part of the Corps of Engineers' regulatory responsibility involves ensuring that permittees comply with issued permits (compliance), as well as ensuring that unauthorized activities do not take place in jurisdictional areas (enforcement areas).

Failure to obtain a Department of the Army authorization for work conducted within waters of the United States (including wetlands), or failure to comply with the terms and conditions of a Department of the Army Permit, will result in an enforcement action being brought by the Corps of Engineers. Resolution options include, but are not limited to, restoration of the destroyed wetland area, approval of an after-the-fact permit application, or in appropriate cases, referral to the U. S. Environmental Protection Agency (USEPA) or the U. S. Attorney for criminal or civil action.

To report a suspected violation of Corps of Engineers regulatory requirements, contact the Regulatory office near you. If you wish to remain anonymous, please state this in your communication. In either case, please provide a telephone number or e-mail address through which we may contact you should we require additional information. Please provide as much information possible. You can submit a violation through the mail or e-mail. If you are able to include photos showing the suspected violation, that could help us with our investigation.


Contact a District Regulatory Office

Louisville District
502-315-6733
Buffalo District
716-879-4330
Chicago District
312-846-5530
Huntington District: Energy Resources (West VIrginia and Ohio)
304-399-5610
Huntington District: Regulatory/Permits (Ohio)
304-399-5210
Huntington District: South/Transportation Branch (West Virginia and Ohio)
304-399-5710
Pittsburgh District
412-395-7155
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Approved Jurisdictional Determinations and Permit Decisions

A jurisdictional determination is a decision by the Army Corps of Engineers as to whether areas on your property are regulated under federal statutes. A federally-regulated wetland, lake, pond or stream is called a "waters of the U.S."

Individual Approved Jurisdictional Determinations are now available (August 2015 - present) on the National Permitting and Jurisdiction Database.  Please Select the "AJD" tab on the top of the page, and then "LRD-Great Lakes and Ohio River Division" heading in the drop-down menu.

If you are unable to find a digital copy of an Approved Jurisdictional Determination in the Permitting Database, please contact the appropriate regulatory office below.

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