23. U.S. Army Corps of Engineers Permits

The following permits are considered together as they are administered together by the U.S. Army Corps of Engineers (Corps) Regulatory Branch through a single permit application.

• RIVERS AND HARBORS ACT OF 1899 (SECTION 10)

  Authorities: 33 U.S.C. §§ 401-413: Rivers and Harbors Act of 1899; 33 CFR 323: Permits for Structures or Work Affecting Navigable Waters of the United States.

• CLEAN WATER ACT (SECTION 404)

  Authorities: 33 U.S.C. §1251 et seq.: Federal Water Pollution Control Act; 33 FCR 322: Permits for Discharges of Dredged or Fill Material into the Waters of the United States.

• MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT, (SECTION 103)

  Authorities: 33 U.S.C. §1401 et seq.: Marine Protection, Research and Sanctuaries Act; 33 CFR 324: Permits for Ocean Dumping of Dredged Material.

• MASSACHUSETTS PROGRAMMATIC GENERAL PERMIT

  Authorities: 33 CFR 320-330: U.S. Army Corps of Engineers Regulations.

Jurisdiction: Construction or placement of structures, dredging, and dredged material disposal in the waters of the United States.

Applicability: Any project in or affecting the waters of the United States must comply with the conditions of the Massachusetts Programmatic General Permit (PGP) or, in the case of larger projects, the conditions of an Individual Permit.

Regulatory Summary: A Section 10 permit is required for all work, including structures, seaward of the annual high water line in navigable waters of the United States, defined as waters subject to the ebb and flow of the tide, as well as a few of the major rivers used to transport interstate or foreign commerce. A Section 404 permit is required for activities that involve the discharge of dredged or fill material into waters of the United States, including not only navigable waters, but also coastal waters, inland rivers, lakes, streams, and wetlands. A Section 103 permit is required to transport dredged material for the purpose of disposal in the ocean.

The Corps, New England District has issued a PGP for work in Massachusetts. The PGP provides for three levels of regulatory review:

• Category I - Activities of minimal environmental impact that do not require Corps regulatory review and are classified as non-reporting. While no written notification to the Corps is required for these “minor” projects, they must comply with the conditions contained in the PGP.
• Category II - Activities likely to be of minimal environmental impact but that have the potential to have adverse effects. A project-specific review and authorization from the Corps in writing are required. Copies of the Massachusetts Chapter 91 (21) application and plans, or the 401 Water Quality Certification (18) application and plans, are usually sufficient for Category II review.
• Category III - Activities that have potential to cause adverse environmental impacts. These projects must get an Individual Permit from the Corps, and therefore require project-specific review, are available for public review and comment, and may require preparation of an Environmental Impact Statement.

The chart below includes examples of the activities and categories of the PGP.

Activity	Category I	Category II	Category III
Fill in Navigable Waters	Fills authorized by c.91 Amnesty. No authorization for new fill or previously unauthorized fill.	Up to 1 acre of fill in a waterway; up to 1 acre of temporary fill in a salt marsh.	Greater than 1 acre of fill in a waterway; or greater than 1 acre of temporary fill in a salt marsh; or EIS required by the Corps.
Dredging	Maintenance dredging less than 1,000 cy with upland disposal.	Maintenance dredging greater than 1,000 cy, new dredging up to 25,000 cy.	Any maintenance dredging affecting a special aquatic site, or new dredging greater than 25,000 cy.
Pile-Supported Structures and Floats	Private, bottom- anchored floats up to 400 s.f. in size; private, pile-supported piers for navigational access to the waterway up to 400 s.f. in size with attached floats up to 200 s.f. (total).	Private piers and floats that do not meet the terms of Category I. Pile-supported structures or floats in buffer zone of a Corps Federal Navigation Project.	Any structure, pier or float that extends, or with docked or moored vessels that extends within horizontal limits of a Corps Federal Navigational Project. Pile-supported structures or floats in a new or previously unauthorized boating facility.

The complete PGP is available from www.nae.usace.army.mil/.

Review Process: With the PGP, applications for projects meeting the PGP criteria must include a brief project description, a vicinity map, a site plan, and a plan view of the proposed structure. Federal and state resource agencies meet every three weeks to review PGP applications. A PGP is usually issued, with or without special conditions, ten days after the review closes.

For Individual Permits, applications must include site location, a description of the project and its purpose, and related maps and plans. Within 15 days of receiving the required application material, the Corps issues a Public Notice seeking comments from abutters, regulatory agencies, and the public. Comments are accepted for up to 30 days. The Corps evaluates comments received, compliance with section 404(b)(1) of the federal Clean Water Act, public interest criteria and issues a permit. If denied, the applicant is informed of the reason(s).

Neither a PGP nor an Individual Permit is valid until the applicant has obtained a Department of Environmental Protection (MassDEP) 401 Water Quality Certification (18). Individual permits are not valid until the Massachusetts Office of Coastal Zone Management (CZM) (22) concurs that the project is consistent with state coastal policies.

Forms: PGP - None; Individual - ENG Form 4345 at www.nae.usace.army.mil.

Fees: PGP - None; Individual - Commercial Activity $100.

Website: www.nae.usace.army.mil.

Contact: U.S. Army Corps of Engineers, New England District, Regulatory Branch (978) 318-8338 and (800) 362-4367.