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Regulatory

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Regulatory Program - Alabama

Published June 10, 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, while allowing reasonable development through fair, flexible and balanced permit decisions. The Corps evaluates permit applications for essentially all work that occurs in “waters of the United States” that are regulated by the Corps pursuant to Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. Some examples of areas that may be within the jurisdiction of the Corps include marshes, swamps, streams, creeks, rivers, ponds, lakes, seasonally saturated forested and non-forested wetlands.

All regulated activities occurring within jurisdictional areas require a permit from the Corps. Some example activities occurring within jurisdictional areas that require a permit include dredging of waterways, bank stabilization, recreational ponds and lakes, as well as the construction of fixed docks/boat slips, floating docks/boat slips, marinas, fleeting areas, boat ramps, roads, transportation crossings, residential and commercial developments, utility lines, and mining activities.

In order to determine whether your proposed activity requires a permit, or whether any “waters of the U.S.” are located on your property or within your project area, please explore our website or contact us for further guidance. Please note that the Nashville District Corps of Engineers will make the final determination of whether an area is a jurisdictional “water of the U.S.” and whether the activity requires a permit.

The Nashville District covers portions of Alabama, Kentucky, Mississippi, Tennessee and Virginia. We are dedicated to providing strong protection of the Nation's aquatic resources, including wetlands, to enhance the efficiency of the Corps regulatory program, and ensure that the Corps provides fair, reasonable, and timely decisions to our customers.

We are diligently working to process your requests. We work on a first come-first served basis.  Our target response time for most small projects is 60 days from when we receive a complete application.  Larger projects are likely to require a longer review. Currently, we are facing some challenges including:

High submittal of requests: We are currently receiving a very high number of applications and jurisdictional determination requests, which has caused a longer response time for the Regulatory staff. Increased requests are a result of fluctuating lake levels in the Great Lakes, green energy initiatives (e.g. solar and wind development), increased commercial/residential development, recent regulation changes, and other factors.

Recent regulation changes: There have been several substantial regulation changes in the past 12-18 months, which have required significant time for staff to be trained and for certain regulatory processes to be modified. These process changes have resulted in additional workload/staff time, which has also resulted in a longer response time for Regulatory staff.

Please note that early coordination makes the process easier for you! By contacting the Corps of Engineers early in your planning, we can help guide you and understand your project’s needs and identify potential challenges. This will help us to work towards the appropriate authorization in as timely a manner as possible. Pre-application meetings are encouraged, particularly for larger projects.

We appreciate your patience and understanding, as we work through these challenges to help you get the authorization you need to complete your project.

 

What should I do if my project will impact wetlands or other waters of the United States?
First, any proposed project or other activity should be designed to avoid and minimize any disturbance to the wetland, stream, or other aquatic area, as much as is practicable before applying for a permit from the Corps. Avoidance and minimization of impacts to wetlands or other aquatic areas can include locating any activity away from the wetland area, establishing buffer zones and protecting the quality of the water that may be discharged into wetlands. If impacts to wetlands or any other water of the United States are proposed, apply for a permit.

Corps Permits

Applications for proposed projects submitted to the Corps will generally fall under one of 3 types of application processes: 

  1.  Nationwide Permits are a series of general permits issued by the Corps for minor projects in certain areas. All nationwide permits have special conditions which must be met in order for a project to qualify for nationwide permit status. Some nationwide permits also require pre-construction notification to the Corps prior to the initiation of any activities.
  2.  Regional Permits & Programmatic General Permits  are a type of general permits as defined in 33 CFR 322.2(f) and 33 CFR 323.2(n).  They may be issued by a division or district engineer after compliance with the other procedures of this regulation.  
  3.  Individual Permits are required if your project does not fall under the criteria for a general permit or letter of permission. If your project requires an individual permit, the Corps issues a Public Notice advising all interested parties of the proposed activity. This Public Notice process helps the Corps to evaluate the probable impact of the project as part of the public interest review. 

Submit A Permit

  • Send all required information to NashvilleRegulatory@usace.army.mil 
    • You may send us files too large for email, up to 8 GB in size, through the DoD SAFE (Secure Access File Exchange) site at https://safe.apps.mil/. Send us an email at NashvilleRegulatory@usace.army.mil to request an access code to use the DoD SAFE site for each set of documents you would like to send us.  Include "drop-off request" in the subject line of the email. Do not send paper copies of documents sent to us electronically.

 

 

Sackett Supreme Court Decision Update

The Environmental Protection Agency and the U.S. Department of the Army (agencies) are in receipt of the U.S. Supreme Court's May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies are interpreting the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies are developing a rule to amend the final "Revised Definition of 'Waters of the United States'" rule, published in the Federal Register on January 18, 2023, consistent with the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency.  The agencies intend to issue a final rule by September 1, 2023.

Sackett v. Environmental Protection Agency

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies will interpret the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies continue to review the decision to determine next steps.

https://www.usace.army.mil/Media/Announcements/Article/3409141/26-may-2023-supreme-court-ruling-in-sackett-v-environmental-protection-agency/

Individual Permit Fees: Option to Now Pay Online!

Please verify with your Corps Regulatory project manager whether an Individual Permit fee is required for your project.

Click HERE for instructions to pay individual permit fees online. If you do not want to pay online; checks are still an option for your convenience!  

Through the Civil Works program, the US Army Corps of Engineers (USACE) serves the public by providing the Nation with quality and responsive management of the Nation’s water resources.  As a result, USACE, in partnership with stakeholders, has constructed many Civil Works projects across the Nation’s landscape.  Given the widespread locations of these projects, many embedded within communities, over time there may be a need for others outside of USACE to alter or occupy these projects and their associated lands.  Reasons for alterations could include improvements to the projects; relocation of part of the project; or installing utilities or other non-project features.
In order to ensure that these projects continue to provide their intended benefits to the public, Congress mandated that any use or alteration of a Civil Works project by another party is subject to the approval of USACE.  This requirement was established in Section 14 of the Rivers and Harbors Act of 1899, which has since been amended several times and is codified at 33 USC 408 (Section 408).

Section 408 provides that USACE may grant permission for another party to alter a Civil Works project upon a determination that the alteration proposed will not be injurious to the public interest and will not impair the usefulness of the Civil Works project.

Submit proposed projects to:

Regulatory.408@usace.army.mil

TEXT HERE

Authority for the Regulatory Program

The U.S. Army Corps of Engineers has been regulating activities in the nation's waters since 1890. Until the 1960's the primary purpose of the regulatory program was to protect navigation. Since then, as a result of laws and court decisions, the program has been broadened so that it now considers the full public interest for both the protection and utilization of water resources.

The U.S. Army Corps of Engineers has been regulating activities in the nation's waters since 1890. Until the 1960's the primary purpose of the regulatory program was to protect navigation. Since then, as a result of laws and court decisions, the program has been broadened so that it now considers the full public interest for both the protection and utilization of water resources.

The U.S. Army Corps of Engineers has been regulating activities in the nation's waters since 1890. Until the 1960's the primary purpose of the regulatory program was to protect navigation. Since then, as a result of laws and court decisions, the program has been broadened so that it now considers the full public interest for both the protection and utilization of water resources.

The regulatory authorities and responsibilities of the Corps of Engineers are based on the following laws:

Other laws may also affect the processing of applications for Corps of Engineers permits. Among these are the National Environmental Policy Act, the Fish and Wildlife Coordination Act, the Endangered Species Act, the National Historic Preservation Act, the Federal Power Act, and the Wild and Scenic Rivers Act.


Explanation of Some Commonly Used Terms

Certain terms which are closely associated with the regulatory program are explained briefly in this section. If you need more detailed definitions, refer to the Code of Federal Regulations (33 CFR Parts 320 through 330) or contact a Corps district regulatory office.

Activity(ies) as used in this pamphlet includes structures (for example a pier, wharf, bulkhead, or jetty) and work (which includes dredging, disposal of dredged material, filling, excavation or other modification of a navigable water of the United States).

Navigable Waters of the United States are those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or have been used in the past or may be susceptible to use to transport interstate or foreign commerce. These are waters that are navigable in the traditional sense where permits are required for certain activities pursuant to Section 10 of the Rivers and Harbors Act. This term should not be confused with the term waters of the United States below.

Waters of the United States is a broader term than navigable waters of the United States defined above. Included are adjacent wetlands and tributaries to navigable waters of the United States and other waters where the degradation or destruction of which could affect interstate or foreign commerce. These are the waters where permits are required for the discharge of dredged or fill material pursuant to Section 404 of the Clean Water Act.

Pre-application Consultation is one or more meetings between members of the district engineer's staff and an applicant and his agent or his consultant. A pre-application consultation is usually related to applications for major activities and may involve discussion of alternatives, environmental documents, National Environmental Policy Act procedures, and development of the scope of the data required when an environmental impact statement is required.

Public Hearings may be held to acquire information and give the public the opportunity to present views and opinions. The Corps may hold a hearing or participate in joint public hearings with other Federal or state agencies. The district engineer may specify in the public notice that a hearing will be held. In addition, any person may request in writing during the comment period that a hearing be held. Specific reasons must be given as to the need for a hearing. The district engineer may attempt to resolve the issue informally or he may set the date for a public hearing. Hearings are held at times and places that are convenient for the interested public. Very few applications involve a public hearing.

The Public Interest Review is the term which refers to the evaluation of a proposed activity to determine probable impacts. Expected benefits are balanced against reasonably forseeable detriments. All relevant factors are weighed. Corps policy is to provide applicants with a timely and carefully weighed decision which reflects the public interest.

Public Notice is the primary method of advising interested public agencies and private parties of the proposed activity and of soliciting comments and information necessary to evaluate the probable impact on the public interest. Upon request, anyone's name will be added to the distribution list to receive public notices.

Waterbody is a river, creek, stream, lake, pool, bay, wetland, marsh, swamp, tidal flat, ocean, or other water area.

The Nashville District Corps of Engineers exercises regulatory jurisdiction over the entire Cumberland River and portions of the Tennessee River watershed areas.  A complete list of all streams subject to Corps regulatory authority is not available.  However, listed below are all navigable waters of the United States over which the Nashville District currently exercises regulatory jurisdiction under the authority of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act.  Inquiries concerning Department of the Army Permit requirements on tributary streams not listed below should be submitted on a case-by case basis to the Regulatory Branch.  Regulatory jurisdiction for the portions of the Tennessee River watershed in Virginia, North Carolina, and Georgia is administered by the Norfolk, Wilmington, and Savannah Corps Districts, respectively.

Cumberland River and Tributaries
Tennessee River and Tributaries

Conasauga River (The Conasauga River in Polk County, Tennessee, is considered navigable entirely within the state of Tennessee.) 

Compensatory mitigation involves actions taken to offset unavoidable adverse impacts to wetlands, streams and other aquatic resources authorized by Clean Water Act section 404 permits and other Department of the Army (DA) permits. As such, compensatory mitigation is a critical tool in helping the federal government to meet the longstanding national goal of ‘‘no net loss’’ of wetland acreage and function.  For impacts authorized under section 404, compensatory mitigation is not considered until after all appropriate and practicable steps have been taken to first avoid and then minimize adverse impacts to the aquatic ecosystem pursuant to 40 CFR part 230 (i.e., the CWA Section 404(b)(1)  Guidelines). 

Compensatory mitigation can be carried out through four methods: the restoration of a previously-existing wetland or other aquatic site, the enhancement of an existing aquatic site’s functions, the establishment (i.e., creation) of a new aquatic site, or the preservation of an existing aquatic site.  There are three mechanisms for providing compensatory mitigation: permittee-responsible compensatory mitigation, mitigation banks and in-lieu-fee mitigation.

Permittee-responsible mitigation is the most traditional form of compensation and continues to represent the majority of compensation acreage provided each year. As its name implies, the permittee retains responsibility for ensuring that required compensation activities are completed and successful. Permittee-responsible mitigation can be located at or adjacent to the impact site (i.e., on-site compensatory mitigation) or at another location generally within the same watershed as the impact site (i.e., offsite compensatory mitigation). 

Mitigation banks and in-lieu fee mitigation both involve off-site compensation activities generally conducted by a third party, a mitigation bank sponsor or in-lieu fee program sponsor. When a permittee’s compensatory mitigation requirements are satisfied by a mitigation bank or in-lieu-fee program, responsibility for ensuring that required compensation is completed and successful shifts from the permittee to the bank or in-lieu fee sponsor. Mitigation banks and in-lieu fee programs both conduct consolidated aquatic resource restoration, enhancement, establishment and preservation projects; however, under current practice, there are several important differences between in-lieu fee programs and mitigation banks.

Compensatory Mitigation for Losses of Aquatic Resources (2008 Mitigation Rule 33 CFR 332)  (pdf copy of the Federal Register Notice providing Federal guidance for mitigation banking) 

Regional Internet Bank Information Tracking System (RIBITS) - RIBITS is an interactive web-based compensatory mitigation tracking system. RIBITS allows the public to track the status of USACE approved Mitigation Banks and In-lieu Fee programs in the Nashville District. It will provide up-to-date information about the availability of compensatory mitigation credits to offset adverse impacts authorized by Department of the Army permits.

Please note that RIBITS is a national database and includes information about other types of Federal and State mitigation programs. In order to view information about stream and wetland mitigation in the Nashville District area of responsibility you will need to select Nashville District from the list of SACE Districts on the RIBITS Home Page.

Applicants seeking a Tennessee Department of Environment and Conservation (TDEC) Aquatic Resource Alteration Permit (ARAP)/Section 401 Water Quality Certification and a U.S. Army Corps of Engineers (USACE) Section 10/404 Permit can request a regulatory coordination meeting with the agencies for complex and/or large-scale project proposals with the potential to impact aquatic resources and/or may require permittee-responsible mitigation (PRM). Applicants are also encouraged to contact their assigned project manager for any questions concerning their project review. 


Mitigation

Permit applicants are required to describe how they will avoid, minimize, and compensate for impacts to waters of the United States.  Unavoidable impacts may require compensatory mitigation to help offset the loss of functions and services.  Typically, compensatory mitigation will be required for permanent jurisdictional wetland losses greater than 0.1 acre.  Compensatory mitigation for jurisdictional stream or other aquatic resource impacts will be determined on a case-by-case basis.


Mitigation Guidance

SOP for Evaluating Impoundments using the TN SQT

SOP for Assessing  Temporal Loss for Compensatory Mitigation Provided After Impacts to Aquatic Resources Have Occurred

SOP for Assessing a Proximity Factor for Compensatory Mitigation Occurring Outside of Mitigation Bank & In-Lieu Fee Services Area

Performance Bond Template

Escrow Agreement Example

Mitigation Banking Instrument Template

Conservation Easement Template (AL)

Conservation Easement Template (TN)

Easement Subordination Agreement (TN)

Letter of Credit Template

Property Assessment & Warranty Template

Land Use Restriction for Private Property Template

Land Use Restriction for State Property Template

Stream Permittee-Responsible Mitigation Guidance

Stream (Draft) Prospectus Checklist

Wetland Permittee-Responsible Mitigation Guidance

Wetland (Draft) Prospectus Checklist


Mitigation Fact Sheets

2008 MITIGATION RULE TIMELINE

FINANCIAL ASSURANCES

LONG-TERM MANAGEMENT

SITE PROTECTION

WATERSHED APPROACH

Find the office nearest you


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.

Contact a District Regulatory Office

Buffalo District
716-879-4330
Chicago District
312-846-5530
Detroit District
313-226-6413
Louisville District
502-315-6733
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
Nashville District
615-369-7500
Pittsburgh District
412-395-7155
Chick Lock

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