The purpose of Corps of Engineers' regulatory program is to protect the nation's aquatic resources, while allowing reasonable development through fair, flexible and balanced permit decisions. The Corps evaluates permit applications for essentially all construction activities that occur in the nation's waters, including wetlands.
The Corps' regulatory program includes Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. The St. Paul District's regulatory jurisdiction covers the states of Minnesota and Wisconsin.
Under Section 10, a Corps permit is required to do any work in, over or under a 'Navigable Water of the U.S.' Waterbodies have been designated as 'Navigable Waters of the U.S.' based on their past, present or potential use for transportation for interstate commerce.
Under Section 404, a Corps permit is required for the discharge of dredged or fill material into waters of the U.S. Many waterbodies and wetlands in the nation are waters of the U.S. and are subject to the Corps' Section 404 regulatory authority.
Before a permit is issued or verified, the Corps must ensure obligations under related federal laws and Tribal Trust responsibilities have been met. Some of the laws for which the Corps must determine compliance are:
- National Historic Preservation Act;
- Endangered Species Act,
- National Environmental Policy Act;, and
- Section 401 of the Clean Water Act.
The amount and complexity of information needed to make a permit decision depends on the project type, location, and degree of adverse impacts. The decision whether to grant or deny a permit is based on compliance with the Clean Water Act and a public interest review of the probable benefits and detriments of the proposed activity.
The following criteria are considered in the evaluation of every application:
- Relative extent of the public and private need of the proposed activity;
- Practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed activity; and
- Extent and permanence of the beneficial and detrimental effects of the proposed activity.
An applicant must demonstrate that they have avoided then minimized impacts to waters of the U.S. to the greatest extent practicable. The Corps then considers compensatory mitigation to replace the functions and services of waters of the U.S. that cannot be avoided. Generally, the Corps requires that losses of waters of the U.S. are replaced before a project begins through the restoration or enhancement of similar aquatic resources in the same watershed.
Types of Permits
A Corps permit is required if: (1) activity would result in the discharge of dredged or fill material in a water of the U.S. and the activity is not exempt from Clean Water Act regulation or (2) the activity includes structures or work in a navigable water of the U.S.
General permits are issued for categories of activities that are substantially similar in nature and cause only minimal individual and cumulative environmental impacts. General permits can be issued on a regional basis (regional general permits or RGPs) or a nationwide basis (nationwide permits or NWPs). General permits are valid for five years and may be re-authorized by the Corps. Every general permit has specific terms and conditions, all of which must be met for project-specific actions to be verified.
Standard Permits are individual permits issued for projects that do not qualify for a general permit. They require a public notice and review under the National Environmental Policy Act (NEPA). A decision to issue a standard permit is made following a case-specific evaluation of a project’s expected benefits balanced against its reasonably foreseeable detriments (also known as a public interest review) and a determination that no less environmentally damaging, practicable alternative exists.
Letters of permission (LOPs) are a type of individual permit evaluated using a streamlined process. A LOP may be issued for projects where proposed work would be minor, would not have significant individual or cumulative impacts on environmental values, and is not expected to encounter appreciable opposition. Individual Corps districts develop these procedures after coordinating with state and federal agencies and tribes and allowing the opportunity for public comment.
The St. Paul District regulatory process