The legislative origins of the Department of the Army regulatory program are the Rivers and Harbors Acts of 1890 and 1899. Various sections establish permit requirements to prevent unauthorized obstruction or alteration of any navigable water of the United States.
Description and Intent
The legislative origins of the Department of the Army regulatory program are the Rivers and Harbors Acts of 1890 and 1899. Various sections establish permit requirements to prevent unauthorized obstruction or alteration of any navigable water of the United States. The most frequently exercised authority is contained in Section 10 (33 U.S.C. 403), which covers construction, excavation, or deposition of materials in, over, or under such waters, or any work which would affect the course, location, condition or capacity of those waters. Actions requiring Section 10 permits include structures (e.g., piers, wharfs, breakwaters, bulkheads, jetties, weirs, transmission lines) and work such as dredging or disposal of dredged material, or excavation, filling or other modifications to the navigable waters of the United States. The Coast Guard also has responsibility for permitting the erection or modification of bridges over navigable waters of the U.S.
In 1972, amendments to the Federal Water Pollution Control Act added what is commonly called Section 404 authority (33 U.S.C. 1344) to the regulatory program. The Secretary of the Army, acting through the Chief of Engineers, is authorized to issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill material into waters of the United States. The Federal Water Pollution Act was amended and given the common name of the Clean Water Act.
Waters of the United States include:
- All waters which are currently used or were used in the past or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide;
- All interstate waters, including wetlands;
- All other waters—such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds—the use, degradation, or destruction of which could affect interstate or foreign commerce;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters identified in this section;
- The territorial sea; and
- Wetlands adjacent to waters identified above.