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Overview

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Introduction
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.

Mission Statement
The Regulatory Division is committed to the protection, wise management, and use of the nation's aquatic resources. We shall discharge this duty in a manner that both fulfills the public trust and our commitment to public service.

 

Corps of Engineers Regulatory Jurisdiction Graphic 

 

The geographic jurisdiction of the Rivers and Harbors Act of 1899 (RHA) includes all navigable waters of the United States which are defined (33 CFR Part 329) as, "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce." This jurisdiction extends seaward to include all ocean waters within a zone three nautical miles from the coast line (the "territorial seas"). Limited authorities extend across the outer continental shelf for artificial islands, installations and other devices (see 43 U.S.C. 1333 (e)). Activities requiring permits under Section 10 of RHA 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 Clean Water Act uses the term "navigable waters" which is defined (Section 502(7)) as "waters of the United States, including the territorial seas. "Thus, Section 404 jurisdiction is defined as encompassing Section 10 waters plus their tributaries and adjacent wetlands and isolated waters where the use, degradation or destruction of such waters could affect interstate or foreign commerce.

Activities, requiring Section 404 permits are limited to discharges of dredged or fill materials into the waters of the United States. These discharges include return water from dredged material disposed of on the upland and generally any fill material (e.g., rock, sand, dirt) used to construct fast land for site development, roadways, erosion protection, etc.

The geographic scope of Section 103 of the Marine Protection Research and Sanctuaries Act of 1972 is those waters of the open seas lying seaward of the baseline from which the territorial sea is measured. Along coast lines this baseline is generally taken to be the low water line. Thus, there is jurisdiction overlap with the Clean Water Act. By interagency agreement with EPA, the discharge of dredged material in the territorial seas is regulated under the Section 103 criteria rather than those developed for Section 404.

The legislative origins of the program are the Rivers and Harbors Acts of 1890 (superseded) and 1899 (33 U.S.C. 401, et seq.). 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. The authority is granted to the Secretary of the Army. Other permit authorities in the Act are Section 9 for dams and dikes, Section 13 for refuse disposal, and Section 14 for temporary occupation of work built by the United States. Various pieces of legislation have modified these authorities, but not removed them.

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 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 at specified disposal sites. Selection of such sites must be in accordance with guidelines developed by the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army; these guidelines are known as the 404(b)(1) Guidelines. The discharge of all other pollutants into waters of the U. S. is regulated under Section 402 of the Act which supersedes the Section 13 permitting authority mentioned above. The Federal Water Pollution Control Act was further amended in 1977 and given the common name of "Clean Water Act" and was again amended in 1987 to modify criminal and civil penalty provisions and to add an administrative penalty provision.

Also in 1972, with enactment of the Marine Protection, Research, and Sanctuaries Act, the Secretary of the Army, acting through the Chief of Engineers, was authorized by Section 103 to issue permits for the transportation of dredged material to be dumped in the ocean. This authority also carries with it the requirement of notice and opportunity for public hearing. Disposal sites for such discharges are selected in accordance with criteria developed by EPA in consultation with the Secretary of the Army.



Most of these permit authorities (with specific exception of Section 9) have been delegated by the Secretary of the Army to the Chief of Engineers and his authorized representatives. Section 10 authority was formally delegated on May 24, 1971, with Section 404 and 103 authorities delegated on March 12, 1973. Those exercising these authorities are directed to evaluated the impact of the proposed work on the public interest. Other applicable factors (such as the 404(b)(1) Guidelines and ocean dumping criteria) must also be met, of course. In delegating this authority, the Secretary of the Army qualified it to "...[be] subject to such conditions as I or my authorized representatives may from time to time impose."

Additional clarification of this delegation is provided in the program's implementing regulations (33 CFR 320-332). Division and district engineers are authorized to issue conditioned permits (Part 325.4) and to modify, suspend, or revoke them (Part 325.7). Division and district engineers also have authority to issue alternate types of permits such as letters of permission and regional general permits (Part 325.2). In certain situations the delegated authority is limited (Part 325.8).

This delegation recognizes the decentralized nature and management philosophy of the Corps of Engineers organization. Regulatory program management and administration is focused at the district office level, with policy oversight at higher levels. The backbone of the program is the Department of the Army regulations (33 CFR 320-332) which provide the district engineer the broad policy guidance needed to administer day-to-day operation of the program. These regulations have evolved over time, changing to reflect added authorities, developing case law, and in general the concerns of the public. They are developed through formal rule making procedures.



Permitting

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A Standard Permit is required when a proposed project does not meet the criteria to qualify for a General Permit, Nationwide Permit, or Letter of Permission. A Standard Permit usually has a 21-day comment period under public noticing, though it can be as short as 15 days or up to 30 days. A copy of the permit drawings and a description of the project are mailed out to the adjacent property owners and the applicant and their consultant. All other interested parties have to access pending public notices from the web. Processing time for these types of permits is usually 60 to 120 days from the receipt of a complete application in non-controversial projects. Controversial or larger projects may take longer.


The term "general permit" means a Department of the Army authorization that is issued on a nationwide or regional (District-wide or more limited geographic scope) basis for a category of activities when: those activities are substantially similar in nature and cause only minimal individual and cumulative impacts. General permits are a way to reduce the burden of the regulatory program on the public and ensure timely issuance of permits while effectively administering the laws and regulations which establish and govern the program.

General permits are reviewed every five years. An assessment of the cumulative impacts of work authorized under the general permit is performed at that time if it is in the public interest to do so. In most instances, anyone complying with the conditions of the general permit can receive project specific authorization. Anyone not complying with the conditions of a general permit may still receive authorization via a "standard permit", but the application must be individually evaluated and coordinated with third parties, including the federal and state resource agencies. Review of an application for a "standard permit" takes additional time to complete as conflict resolution may be required.

A list of the applicable general permits can be obtained by contacting a project manager in your geographical location. Below, view the current list of general permits administered by the Jacksonville District. As additional permits are reauthorized, or new permits are effected, they will be added.

The following Regional General Permits have expired. We will reissue them as soon as possible pending completion of Section 7 Endangered Species consultations. If your project was authorized by one of the above listed permits, and you began construction or had a contract in place to begin construction prior to the expiration date, you have an additional 12 months to complete the project.

  • SAJ-12, Private Single-Family Boat Ramps in Florida 

State Programmatic General Permits (SPGP):

The U.S. Army Corps of Engineers, Jacksonville District has issued a State Programmatic General Permit (SPGP IV-R1), replacing SPGP IV which authorizes the Florida Department of Environmental Protection (DEP) or designee to administer on behalf of the Corps. The purpose of the SPGP is to reduce the duplication of permitting effort between the Corps and DEP. The majority of the categories of work authorized under the SPGP are for minor actions which are currently authorized by existing Corps’ Nationwide and Regional General Permits. The implementation of the SPGP will eliminate the need for separate approval from the Corps for minor work located in waters of the United States, including navigable waters, when that work is authorized by the DEP.

SPGP IV-R1 Documents

Permit Instrument
General Conditions 
Manatee Key 2013
Standard Manatee Conditions for In-Water Work-2011 
General Dock Construction Guidelines 
Johnson's Seagrass Construction Key
Corps County Responsibility 
Gulf Sturgeon Critical Habitat Maps
Freshwater Mussel Critical Habitat
Beach Mice Habitat 
Wood Stork Nesting Colony Locations 
FWS Bald Eagle Clearance Letter 
American Crocodile Critical Habitat
Johnson's Seagrass Critical Habitat
Florida Panther Consultation Area

Sea Turtle & Smalltooth Sawfish Construction Conditions

 

On-Line Self-Certification:

On August 20, 2008, the Florida Department of Environmental Protection (DEP), in coordination with the U.S. Army Corps of Engineers, Jacksonville District, added the Federal State Programmatic General Permit (SPGP) to their existing online self-certification process for certain small, private single-family docks. Now in addition to the state authorization, the public can receive authorization from the U.S. Army Corps of Engineers for these types of projects in the form of a Self-Certification SPGP. To be eligible for the federal authorization, the applicant must first receive a state self-certification authorization. The SPGP single-family dock Self-Certification is not available for use in Monroe County, those counties within the Northwest Florida Water Management District, and other specific areas which are environmentally sensitive or are in proximity to Federal projects. Based on recent data, we estimate this will remove about 400-500 actions each year from having to be processed separately by Corps project managers. For questions on specific projects, please contact the appropriate field office.

Programmatic General Permits (PGP)

Programmatic permits are a type of general permit founded on a existing state, local or other federal agency program and designed to avoid duplication with that program.

A list of PGPs administered by others within the Jacksonville District:

General Conditions – The following six general conditions are included with all Department of the Army Authorizations, as per 33CFR Part 325, Appendix A :

1. The time limit for completing the work authorized ends on the date noted above.

2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area.

3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the federal and state coordination required to determine if the remains warrant a recovery effort of if the site is eligible for listing in the National Register of Historic Places.

4. If you sell the property associated with this permit you must obtain the signature and mailing address of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization.

5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions.

6. You must allow a representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit.

The term "letter of permission" means a type of individual permit issued in accordance with the abbreviated procedures of 33 CFR 325.2(e).

33 CFR 325.2(e)(1) reads as follows:

    e. Alternative procedures. Division and district engineers are authorized to use alternative procedures as follows: 
        1. Letters of permission. Letters of permission are a type of permit issued through an abbreviated processing procedure which includes coordination with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife Coordination Act, and a public interest evaluation, but without the publishing of an individual public notice. The letter of permission will not be used to authorize the transportation of dredged material for the purpose of dumping it in ocean waters. Letters of permission may be used: 
            I. In those cases subject to Section 10 of the Rivers and Harbors Act of 1899 when, in the opinion of the district engineer, the proposed work would be minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition.

            II. In those cases subject to section 404 of the Clean Water Act after: 
                    1. The district engineer, through consultation with Federal and state fish and wildlife agencies, the Regional Administrator, Environmental Protection Agency, the state water quality certifying agency, and, if appropriate, the state Coastal Zone Management Agency, develops a list of categories of activities proposed for authorization under LOP procedures; 
                    2. The district engineer issues a public notice advertising the proposed list and the LOP procedures, requesting comments and offering an opportunity for public hearing; and 
                    3. A 401 certification has been issued or waived and, if appropriate, CZM consistency concurrence obtained or presumed either on a generic or individual basis.

The criteria for Section 10 and Section 404 LOPs in the Jacksonville District, excluding Puerto Rico and the U.S. Virgin Islands, and the various addenda to the criteria are as follows:

The Letter of Permission (LOP) evaluation includes a 15-day comment period with state and federal agencies and the adjacent property owners. A final decision on the permit application is usually reached within 120 days from the date a complete application is received by the Corps' office. LOP's can be issued pursuant to Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, or both.

Nationwide Permits (NWP) authorize a category of activities throughout the United States, Puerto Rico and the U.S. Virgin Islands, and are valid for an individual project only if the conditions of the appropriate permit type are met. After a review of the project, the Corps issues a verification letter pursuant to the applicable NWP.

An integral part of the Corps' regulatory program is the concept of NWPs for minor activities. NWPs are activity specific, and are designed to relieve some of the administrative burdens associated with permit processing for both the applicant and the federal government. Some activities authorized by NWPs require pre-construction notification to the District Engineer before commencing with the work. This notification requirement to the District Engineer is necessary to ensure that activities authorized by these NWPs have minimal individual and cumulative adverse impacts on the aquatic environment. Anyone not complying with the terms and conditions of a NWP may still receive authorization via a "standard permit," but the application must be individually evaluated and coordinated with third parties, including the federal and state resource agencies. Review of an application for a "standard permit" takes additional time to complete, as conflict resolution may be required.

In addition to the NWP general conditions, Division Engineers are authorized to add regional conditions specific to the needs and/or requirements of a particular region or state. Regional conditions are an important mechanism to ensure that impacts to the aquatic environment authorized by the NWPs are minimal, both individually and cumulatively.

NWPs can only be authorized for a five-year period, at which time they must be re-evaluated for their impacts on the aquatic environment. The current NWPs became effective on March 19, 2012.

2012 Nationwide Permits:

Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices – Reissuance of Nationwide Permits *
* Detailed information for each of the NWPs begins on Page 87
* General conditions that apply to all NWPs begin on page 100

2012 NWPs with Corrections

Index of March 2012 Nationwide Permits:

 1.  Aids to Navigation
 2.  Structures in Artificial Canals
 3.  Maintenance
 4.  Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
 5.  Scientific Measurement Devices
 6.  Survey Activities
 7.  Outfall Structures and Associated Intake Structures
 8.  Oil and Gas Structures on the Outer Continental Shelf
 9.  Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil and Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects

Regional (Jacksonville District) Special Conditions

Nationwide permits 12, 39, 51, and 52 include a requirement for coordination with the DoD Siting Clearinghouse for activities that may affect military operations. Contact information is available in the Memorandum to the Field, dated February 21, 2012.

Additional information regarding NWPs is available at the Nationwide Permit information page of the USACE Regulatory Program site.

For additional information from other agencies regarding compliance with the new General Conditions, please check below:

Florida
State Historic Preservation Office
Division of Historical Resources
500 S. Bronough Street
Tallahassee, FL  32399-0250
Tel: (850) 488-1480

FEMA
Federal Emergency Management Agency Region IV
(Serves AL, FL, GA, KY, MS, NC, SC, TN).

FWS
U.S. Fish and Wildlife Service Florida Ecological Services:
Jacksonville Field Office:
7915 Baymeadows Way, Suite 200
Jacksonville, FL 32256-7517
Tel: 904-731-3336 - Fax: 904-731-3045

Panama City Field Office:
1602 Balboa Avenue
Panama City, FL  32405
Tel: (850) 769-0552

South Florida Ecological Services Office:
1339 20th Street
Vero Beach, FL 32960
Tel: (772) 562-3909 - Fax: (772) 562-4288

 

Puerto Rico
SHPO
Office of Historic Preservation
Box 82, La Fortaleza
Old San Juan, PR  00901
Tel: (787) 721-2676 or 3737

FEMA
Federal Emergency Management Agency
159 Chardon Avenue
The New San Juan Office Building
Hato Rey, PR  00918
Tel: (787) 296-3500

FWS
U.S. Fish and Wildlife Service:
Boqueron Field Office:
P.O. Box 491
Boqueron, PR  00622
Tel: (787) 851-7297

For questions on specific projects or the potential use of the Nationwide Permits Program in specific geographic areas, please contact the project manager, if known, or the appropriate field office.

 

A determination by the Corps that no permit is required for a specific project may be based on one or more of the following:

1. A proposed project will not require a Department of the Army permit in accordance with Section 10 of the Rivers and Harbors Act of 1899 if it is not located within the navigable waters of the United States. Furthermore, a permit will not be required in accordance with Section 404 of the Clean Water Act if it will not involve the discharge of dredged or fill material into waters of the United States.

2. A project as proposed will not require a Department of the Army permit in accordance with Section 10 of the Rivers and Harbors Act of 1899 if it is considered a bridge and, therefore, is under the regulatory jurisdiction of the U.S. Coast Guard.

3. A project does not require a Department of the Army permit if the proposed work has been determined to be an exempt silviculture, farming, or ranching activity pursuant to the Code of Federal Regulations (33 CFR Part 323.4), provided the work is done in accordance with the provisions and conditions identified in 33 CFR Part 323.4 a Department of the Army authorization will not be required.

4. A project will not require a Department of the Army permit if the activity itself is not regulated. Examples of non-regulated activities may include work in uplands or non-regulated wetlands, as well as some piling supported structures and some excavation activities.

As always, you should contact your local Corps Regulatory Office for assistance in determining whether or not a permit is required.

A No Permit Required determination by the Corps:

  • Does not obviate the requirement to obtain any other Federal, State, or local permits which may be necessary for your project.
  • Does not constitute a federal evaluation of possible impacts to species protected under the Endangered Species Act. Projects that have the potential to impact federally listed species should contact the U.S. Fish and Wildlife Service.
  • Does not constitute a federal evaluation of possible impacts to historic resources protected under Section 106 of the Natural Historic Preservation Act. Projects that have the potential to impact historic sites should contact the State Historic Preservation Officer in Tallahassee.
  • Does not determine if your project may be subject to local building restrictions mandated by the National Flood Insurance Program. You should contact your local office that issues building permits to determine if your site is located in a flood-prone or floodway area, and if you must comply with the local building requirements mandated by the National Flood Insurance Program.
  • May not be valid for the wetland conservation provisions of the Food Security Act of 1985, as amended. If you or your tenant are U.S. Department of Agriculture (USDA) program participants, or anticipate participation in USDA programs, you should request a certified wetland determination from the local office of the Natural Resources Conservation Service prior to starting work.
  • Reflect current policy and regulations and are usually valid for a period of no longer than five years from the date of the letter unless new information warrants a revision of the determination before the expiration date. If after the five-year period, the Corps has not specifically revalidated the determination, it will automatically expire. Any reliance upon a determination beyond the expiration date may lead to possible violation of current federal laws and/or regulation.

Standard Permit-Artificial Reefs
Regulatory authority for the deployment of artificial reefs is in accordance with Section 10 of the Rivers and Harbor Act and/or Section 404 of the Clean Water Act. The extent of the U.S. Army Corps of Engineers (Corps) jurisdiction for permitting artificial reefs extends from the mean high water line to the outer continental shelf. Reef construction within the territorial seas (3 nautical miles off the Atlantic coast of Florida) and inland waterways fall under the purview of Section 10 and Section 404 authority. Beyond the territorial sea, artificial reefs are considered under Section 10 authority only.

The Corps policy is that applicants are typically a government agency (city or county) due to liability and insurance issues. Applicants need to submit a joint Florida Department of Environmental Protection application for proposed artificial reefs within state waters for joint processing. Reefs constructed beyond state waters do not need a state permit; only a federal permit from the Corps is needed.

The basic form of authorization for an artificial reef is a standard permit. Processing and evaluating the proposal can be done in three steps: pre-application consultation, formal project review and decision making. You are encouraged to contact the local Corps of Engineers field office in your area prior to submitting a new permit application. 

New reef sites are typically ¼ nautical miles by ¼ nautical miles. The smaller size sites make it easier to monitor the effectiveness, durability and stability of the deployed material on the sea floor, a public resource. Permits are issued for ten years. Reissuance of the permit is required if the time frame for the construction window expires.

Pre-application consultation usually involves a meeting between the applicant, Corps, Florida Fish and Wildlife Conservation Commission (FWC) and interested stakeholders. Pre-application consultation is needed for new reef sites or material not typically used for artificial reefs. The Corps and FWC will determine if a stakeholder should be invited to the meeting, where the location and orientation of the reef is the main topic of discussion. The proposed material for deployment and the management of the proposed reef may also be discussed. Interested stakeholders may include representatives from the U.S. Coast Guard, State Historic Preservation Office, local port facilities, shrimping industry, etc. The purpose of the meeting is to provide informal discussions before the applicant expends resources (time, funds, preliminary deployment inspections, etc.). The process is designed to inform the applicant of the factors the Corps must consider in its decision making process. This discussion prior to submitting a permit application enables the application to be processed more efficiently. The proposed reef site needs to be situated in an area where there are no conflicting uses of the aquatic resource; such as transit lanes for shipping, an active shrimping area, or cable or utility line rights-of-way.

Material used for artificial reefs must be durable and stable in a 20-year return interval storm event at the requested depth. The material should not move off the proposed reef site or substantially break up with resultant loss of habitat value. To receive funding from FWC the proposed artificial reefs should be effective for a minimum of 20 years. The deployment of material from the following list, which has proven to be durable and stable, would expedite the processing of an application. These materials should weigh at least 500 pounds and be clean and free from asphalt, creosote, petroleum, other hydrocarbons and toxic residues, loose free floating material or other deleterious substances. Materials/structures will be configured and constructed to be stable in a 20-year return interval storm event at the depth of placement. Materials will be designed, selected and deployed in such a manner as to avoid entrapping marine life.

1. Prefabricated artificial reef modules that are composed of ferrous and/or aluminum-alloy metals ¼ inch or more in thickness, concrete, rock or a combination of these materials.
2. Natural rock boulders and other pre-cast concrete material, such as, culverts, stormwater junction boxes, power poles, railroad ties, jersey barriers or other similar concrete material.
3. Large concrete building demolition materials, such as bridges, with all steel reinforcement rods severed to ensure the rods will not create a fishing tackle or diver ensnaring hazard.
4. Heavy gauge ferrous & aluminum alloy metal material components or structures, ¼ inch or more in thickness, such as utility poles and antenna towers.
5. Heavy gauge ferrous & aluminum alloy metal hulled vessels that equal or exceed 60 ft. hull length, prepared and deployed in accordance with all applicable U. S. Coast Guard, U.S. Environmental Protection Agency, Florida Fish and Wildlife Conservation Commission or other applicable state or federal agency regulations or policies. The vessel will not be deployed until all necessary inspections and clearances have been obtained or waived and a stability analysis has been completed, demonstrating that the vessel will be stable during a 50-year storm event based on vessel and deployment site characteristics. The permittee shall follow the national guidance regarding preparation of vessels for deployment as artificial reefs.

The formal project review consists of submitting an application that provides complete information and details of the project. The review is needed for new reef sites, existing reef sites in which the construction window has expired or for material not previously used as an artificial reef. The following information is required for review by the Corps:

  • Name, address and phone number of applicant.
  • Permit number, if site was previously permitted.
  • Complete description of the proposed project, including the type and quantity of material to be discharged, how the material will be transported to the proposed site and deployment method.
  • Provisions for siting, constructing, monitoring, operating, maintaining and managing the proposed artificial reef.
  • The project location of the site in degree decimal format. This should be clearly marked on the most recent National Oceanic & Atmospheric Administration (NOAA) chart (New reef sites are typically ¼ nautical miles by ¼ nautical miles). The NOAA drawing needs to be on 8.5 inch by 11 inch page.

After the application is received by the Corps, it will be assigned an identification number and reviewed for completeness. A request for additional information may be sent, if necessary for the Corps to review the proposed project. Within 15 days of receiving all the required information, a public notice will be issued with a 15- to 30-day comment period. The proposal is then reviewed by the Corps, local, state and federal agencies, stakeholders, special interest groups and the general public. Concurrently with the public notice, the Corps will consult with the National Marine Fisheries Service, Protected Species Division and possibly with the U.S. Fish and Wildlife Service. The consultation is required under Section 7 of the Endangered Species Act for any endangered or threatened species that may be affected by the project.

After the comment period, the Corps will review all of the comments and consult with other federal and state agencies where appropriate. Additional time may be needed if there are endangered species concerns.

The project manager in the decision making process evaluates the comments received, negotiates necessary modifications of the project if required, and drafts appropriate documentation to support a recommended permit decision. The permit decision document includes a discussion of the environmental impacts of the project, the findings of the public interest review process, and any special evaluation required by the project.

The permit, if issued, will contain special conditions to ensure the material is deployed within the project boundaries, does not create a hazard to navigation, and the deployment will not have an adverse affect on endangered species. The following list contains conditions that are typically added to a permit. The list is provided as a guideline; other conditions may be added if appropriate. Please note, monitoring conditions for reefs that are deployed as mitigation for hard bottom substrate is not included. The standard conditions are as follows:

1. Reporting Addresses: The Permittee shall reference the permit number, SAJ-0000-00000, on all correspondence. Unless specifically notified to the contrary, the Permittee shall use the following addresses for transmitting correspondence to the referenced agencies:

a. For hard copies:
U.S. Army Corps of Engineers, Regulatory Division, Special Projects and Enforcement Branch, and Enforcement PM Address. The Permittee shall reference the permit number, SAJ-0000-00000, on all correspondence.

b. For email:
CESAJ-ComplyDocs@usace.army.mil

c. National Oceanic and Atmospheric Administration (NOAA)
Office of Coast Survey, N/CS26, Sta. 7317
1315 East-West Highway
Silver Springs, MD, 20910-3282

d. Commander, U.S. Coast Guard (USCG)
[Enter in the mailing address of the USCG office for your Sector].

e. Florida Fish and Wildlife Conservation Commission (FWC)
Artificial Reef Program
620 S. Meridian Street, Box 4B2
Tallahassee, FL 32399
fax: 850-922-0463
email: Jon.Dodrill@myfwc.com, bill.horn@myfwc.com, and keith.mille@myfwc.com

2. Initial Agency Notification: The Permittee shall provide to the Corps, NOAA and USCG written notification of the planned deployment start date at least two weeks prior to the initial deployment on the authorized artificial reef site.

3. Protection of Existing Resources: The Permittee shall not deploy artificial reef materials until an assessment of the bottom conditions have been accomplished by diver, submersible video camera, fathometer, depth/bottom sounder (e.g. "fish finder") or side-scan sonar. The inspection of the deployment area may occur at the time of deployment but no more than one year prior to deployment. The Permittee shall maintain a deployment buffer of at least 200 feet from any submerged beds of sea grasses, coral reefs, live bottom, areas supporting growth of sponges, sea fans, soft corals and other sessile macroinvertebrates generally associated with rock outcrops, oyster reefs, scallop beds, clam beds or areas where there are unique or unusual concentrations of bottom dwelling marine organisms. If, during the inspection, evidence is observed of cultural/archaeological resources, such as sunken vessels, ballast, historic refuse piles, or careenage areas the Corps will be notified by the Permittee and the above referenced deployment buffer will be implemented. The Permittee shall maintain a record of the information gained during the inspection such that it can be provided upon request to the Corps.

4. Pre-Deployment Notification: No less than 14 days prior to deployment of material on an artificial reef, the Permittee shall transmit by electronic mail ("email") a complete and signed "Florida Artificial Reef Materials Cargo Manifest and Pre-Deployment Notification" form, provided in Attachment 1 of the permit, to the Corps and FWC to allow inspection of the proposed reef materials as deemed necessary by the agencies. Inspection is allowable at the staging area. By signing the Pre-Deployment Notification the Permittee certifies that all materials are free from asphalt, petroleum, other hydrocarbons and toxic residues. The Permittee shall not deploy material if notified by the Corps or FWC that the material is questionable. The material needs to be evaluated and released for deployment. Any material that is deemed unacceptable for reef material will be disposed in an approved upland disposal site.
Deployment of the material shall not occur until after the end of the 14-day inspection period. The Permittee shall ensure both a copy of the Corps permit and the signed "Florida Artificial Reef Materials Cargo Manifest and Pre-Deployment Notification form" are maintained aboard the deployment vessel at all times during loading, transit and deployment.

5. Post-Deployment Placement Report/As-Built Drawing: No less than 30 days after deployment at the reef site, the Permittee shall transmit by email to the Corps and FWC a complete and signed "Florida Artificial Reef Materials Placement Report and Post-Deployment Notification" form provided in Attachment 2 of the permit. Please note, the Corps requires the latitude and longitude to be accurate within five meters horizontal distance on the post-deployment report. Attached to the report, an as-built drawing that contains the approximate deployment configurations and the height of the material after placement. Depth shall be verified utilizing fathometer, depth sounder, or similar device accurate to within one meter. Also, include information on the condition of the material at the time of deployment. The report and drawing shall be limited to a few pages per deployment. Representative photographs and/or video, if available, are encouraged to be submitted.

6. Ownership/Maintenance/Liability: By signing the permit, the Permittee certifies and acknowledges ownership of all artificial reef materials deployed on the reef, accepts responsibility for maintenance of the artificial reef and possesses the ability to assume liability for all damages that may arise with respect to the artificial reef.

7. Assurance of Navigation and Maintenance: The Permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structures or work herein authorized, or if in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the Permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.

Additional Special Conditions may be required if there are Endangered Species Concerns.

8. Sea Turtle/Sawfish/Sturgeon Guidelines: The Permittee shall comply with the National Marine Fisheries Service's "Sea Turtle and Smalltooth Sawfish Construction Conditions," which also apply to sturgeon, provided in Attachment 3 of the permit.

9. Manatee Protection: The Permittee shall ensure that wharf fenders are installed to reduce the risk of a vessel crushing a manatee. The wharf fenders shall be installed with appropriate materials to provide sufficient standoff space of at least three feet under compression. Fenders or buoys providing a minimum standoff space of at least three feet under compression shall be utilized between two vessels that are moored together.

The below Special Conditions are for the protection of Right whales. Their critical habitat is on the east coast of Florida starting north of the Florida border and continues south to the Cape Canaveral area.

10. Protected Species Guidance: The Permittee shall comply with the "Vessel Strike Avoidance Measures and Injured or Dead Protected Species Reporting" guidance for marine turtles and marine mammals, provided in Attachment 3 of the permit.

11. Right Whale Protection: Artificial reef material shall not be transported or deployed between November 15 and April 15 for the conservation of the endangered Northern Right Whale within the boundaries of the NMFS designated Northern Right Whale Southeastern United States critical habitat area. Links to the NMFS critical habitat area maps can be found at the following web sites:
http://www.nmfs.noaa.gov/pr/pdfs/conservation/ch_rightwhale_southeast.pdf,
http://www.nmfs.noaa.gov/pr/pdfs/shipstrike/msr_placard.pdf 

Background Information: For decades the Corps permitted the deployment of artificial reefs off the coast of Florida. Deployed material consist of tugs, barges, and concrete material, such as culverts, stormwater junction boxes, power poles, railroad ties, jersey barriers or other similar concrete material. In the 1990s the Corps started working with the National Oceanic & Atmospheric Administration (NOAA) and the Florida Fish and Wildlife Conservation Commission (FWC) due to concerns over shipping interests off the east coast of Florida. The agencies worked together to ensure transit lanes were established for both port facilities and military bases. The shrimping industry also became interested in the proposed location of reef sites because river shrimping is limited and off-shore shrimping became more restrictive. Needless to say, the siting of artificial reefs has become complex over time due to shipping and fishing interests.

 

More information about factors considered by the Corps during permit review for Artificial Reefs is located at 33 CFR 322.5 (b).

More information regarding the Florida Fish and Wildlife Conservation Commission's program  is located at:
http://myfwc.com/conservation/saltwater/artificial-reefs/ar-program/.


Corps Regulatory Jurisdiction for Artificial Reefs

The basic form of authorization used by Corps districts is the Individual Permit. Processing such permits involves evaluation of individual, project specific applications in what can be considered three steps: pre-application consultation (for major projects), formal project review and decision making.

You are encouraged to contact the local Corps of Engineers field office in your area prior to making a permit application. Pre-application consultation usually involves one or more meetings between an applicant, Corps district staff, interested resource agencies (federal, state and/or local), and sometimes the interested public. The basic purpose of such meetings is to provide for informal discussions about the pros and cons of a proposal before an applicant makes irreversible commitments of resources (funds, detailed designs, etc.). The process is designed to provide the applicant with an assessment of the viability of some of the more obvious alternatives available to accomplish the project purpose, to discuss measures for reducing the impacts of the project, and to inform him of the factors the Corps must consider in its decision making process.

By discussing the work prior to submitting an application, your application can be processed more efficiently.

Helpful Hints for Submitting a Permit Application:

This information will assist individuals in identifying and acquiring permits for projects affecting waters of the United States under Section 404 of the Clean Water Act, and Section 10 of the Rivers and Harbors Act. Hopefully, this information will minimize not only the time, effort and expense needed to accomplish projects, but will also help to lessen any adverse impact a project may have on the aquatic environment.

If you have questions about the extent of wetlands on your site, please contact your local field office to arrange for a wetland jurisdictional determination or a site review. This will allow you to plan your project to avoid and minimize impacts to wetlands where possible. Pre-application meetings or a phone call to your local field office may be necessary or helpful to determine the extent of the project and what measures might need to be taken into consideration during your project design.

Please provide clear drawings. Do not clutter the drawings with extraneous information. A simple drawing which clearly shows the project is easier to copy and will be more readable by the time a permit decision is finally reached. Remember, these drawings must be copied for publication in the Public Notice.

It is very important that you provide complete information and details of the project. The following information is required for review by the Corps:

  • Name, address, and phone number of applicant.
  • Complete description of the proposed project, including the purpose, type and quantity of material to be discharged.
  • All related activities. Is this a multiphase project? Have additional permits been applied for or received?
  • A list of all adjacent property owners and their addresses.
  • The project location. This should be clearly marked on a road map and a description of the directions should be included. In addition to the map and directions, you should submit the section, township and range and the latitude and longitude of the site.
  • Has the application been signed?
  • Be sure to include a full set of drawings on 8.5 inch by 11 inch format. These should include plan view, section view, elevation view, profile and grade drawings. Please use match lines where necessary.

After the application is received by the Corps, it will be assigned an identification number and reviewed for completeness. A request for additional information may be sent to notify you of any additional information which may be necessary for the Corps to review your proposed project. Then within 15 days of receiving all the required information, a public notice will be issued with a 15- to 30-day comment period. The proposal is then reviewed by the Corps, local, state and federal agencies, special interest groups and the general public.

After the comment period, the Corps reviews all of the comments received and consults with other agencies where appropriate. The Corps may ask for additional information at this time, and a public hearing may be conducted if one has been specifically requested and a decision has been made that there is a need.

The project manager evaluates the impacts of the project and all comments received, negotiates necessary modifications of the project if required, and drafts appropriate documentation to support a recommended permit decision. The permit decision document includes a discussion of the environmental impacts of the project, the findings of the public interest review process, and any special evaluation required by the type of activity such as compliance determinations with the Section 404(b)(1) guidelines or the ocean dumping criteria.

When all considerations are satisfied, the District Engineer decides to either issue or deny the permit application. If a denial is warranted, you will receive a written explanation of the reason for denial.

Fees are required for any issued individual permit and consist of $10.00 for individual, non-commercial projects, and $100.00 for commercial projects.

The Corps makes every effort to process Individual Permit applications within 120 days of the date a complete application is submitted. In some cases, such as controversial projects or projects dealing with endangered species concerns, the processing time may be greater than 120 days.

Permits can be issued with special conditions. When a Standard Permit or Letter of Permission (LOP) is issued, a Self-Certification Form is included. When the authorized activity and or mitigation is completed, the permittee is required to fill out the form and mail it to the Enforcement Branch. This is a special condition attached to all IPs and LOPs and assists our Enforcement Branch with permit compliance.

Survey Information that may be required:

If you need additional information concerning the permit process please contact your local Regulatory field office.

The Corps supports a strong partnership with states in regulating water resource developments. This is achieved with joint permit processing procedures (e.g., joint public notices and hearings), programmatic general permits founded on effective state programs, transfer of the Section 404 program in non-navigable waters, joint EISs, special area management planning, and regional conditioning of nationwide permits.

The Regulatory Division of the Corps Jacksonville District uses a standardized set of Special Conditions that are generally included with Standard Permit authorizations. This is done to provide consistency and in an effort to simplify the requirements.

The standard special conditions are currently being revised. Check back soon for updates.

 

In its evaluation of standard permit applications to discharge dredged or fill material into waters of the U.S., including wetlands, the Corps is required to analyze alternatives to the proposed project that could achieve its purpose and need.  The Corps must evaluate alternatives that accomplish the overall project purpose, and that are reasonable and practicable.  A permit cannot be issued if a practicable alternative exists that would have less adverse impact on the aquatic ecosystem, provided that alternative does not have other significant adverse environmental impacts.  A suggested set of steps has been developed to help in providing the necessary information for the Corps to consider.  This will assist a permit applicant in formatting this information into an “Alternatives Analysis” that includes the key items that must be addressed. 

Wetlands

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What is a wetland?

The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency define wetlands as those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands are areas that generally include swamps, marshes, bogs, and similar areas.

Wetlands are areas that are covered by water or have waterlogged soils for long periods (14-21 days) during the growing season. Plants growing in wetlands are capable of living in saturated soil conditions for at least part of the growing season. Wetlands such as swamps and marshes are often obvious, but some wetlands are not easily recognized, often because they are dry during part of the year or "they just don't look very wet" from the roadside.

Some of these wetland types include, but are not limited to, many bottomland forests, pocosins, pine savannahs, bogs, wet meadows, potholes and wet tundra. Information is given here to help you determine if you have a wetland. If you intend to place dredged or fill material in a wetland or in an area that might be a wetland, contact the local Corps regulatory office to see if a permit is required.

 

Why is it necessary to consider whether an area is a wetland?

Section 404 of the Clean Water Act requires that anyone interested in depositing dredged or fill material into "waters of the United States, including wetlands," must receive authorization for such activities. The Corps has been assigned responsibility for administering the Section 404 permitting process. Activities in wetlands for which permits may be required include, but are not limited to:

  • Placement of fill material
  • Ditching activities when the excavated material is sidecast
  • Levee and dike construction
  • Mechanized land clearing
  • Land leveling
  • Most road construction
  • Dam construction

The final determination of whether an area is a wetland and whether the activity requires a permit must be made by a Corps regulatory office. 

How can wetlands be recognized?

The Corps uses three characteristics of wetlands when making wetland determinations: vegetation, soil and hydrology. Each characteristic is discussed below. Unless an area has been altered or is a rare natural situation, wetland indicators of all three characteristics must be present during some portion of the growing season for an area to be a wetland.

There are some general situations in which an area has a strong probability of being a wetland. If any of the following situations occur, you should ask the local Corps office to determine whether the area is a wetland.

  • Area occurs in a floodplain or otherwise has low spots in which water stands at or above the soil surface during the growing season. Caution: Most wetlands lack both standing water and waterlogged soils during at least part of the growing season.
  • Area has plant communities that commonly occur in areas having standing water for part of the growing season (e.g., cypress-gum swamps, cordgrass marshes, cattail marshes, bulrush and tule marshes and sphagnum bogs).
  • Area has soils that are called peats or mucks.
  • Area is periodically flooded by tides, even if only by strong, wind-driven, or spring tides.

Many wetlands can be readily identified by the general situation stated above. For the boundary of these areas and numerous other wetlands, however, it is unclear whether these situations occur.

In such cases, it is necessary to carefully examine the area for wetland indicators of the three major characteristics of wetlands: vegetation, soil and hydrology. Wetland indicators of these characteristics, which may indicate that the area is a wetland, are described below:

Vegetation Indicators

Nearly 5,000 plant types in the United States may occur in wetlands. These plants, known as hydrophytic vegetation, are listed in the Corps' 2012 National Wetland Plant List (NWPL). The NWPL can be found Here.

You can usually determine if wetland vegetation is present by knowing a relatively few plant types that commonly occur in your area. For example, cattails, bulrushes, cordgrass, sawgrass, sphagnum moss, bald cypress, willows, bay trees, mangroves, sedges, rushes, arrowheads and water plantains usually occur in wetlands.

Other indicators of plants growing in wetlands include trees having shallow root systems, swollen trunks (e.g., bald cypress, tupelo gum) or roots found growing from the plant stem or trunk above the soil surface. Several Corps offices have published pictorial guides of representative wetland plant types.

If you cannot determine whether the plant types in your area are those that commonly occur in wetlands, ask the local Corps regulatory office or a local botanist for assistance.

 

Soil Indicators

There are approximately 2,000 named soils in the United States that may occur in wetlands. Such soils, called hydric soils, have characteristics that indicate they were developed in conditions where soil oxygen is limited by the presence of saturated soil for long periods during the growing season. If the soil in your area is listed as hydric by the Natural Resources Conservation Service (NRCS), the area might be a wetland.

If the name of the soil in your area is not known, an examination of the soil can determine the presence of any hydric soil indicators, including:

  • Soil consists predominantly of decomposed plant material (peats or mucks)
  • Soil has a thick layer of decomposing plant material on the surface
  • Soil has a bluish gray or gray color below the surface, or the major color of the soil at this depth is dark (brownish black or black) and dull
  • Soil has the odor of rotten eggs
  • Soil is sandy and has a layer of decomposing plant material at the soil surface
  • Soil is sandy and has dark stains or dark streaks of organic material in the upper layer below the soil surface. These streaks are decomposed plant material attached to the soil particles. When soil from these streaks is rubbed between the fingers, a dark stain is left on the fingers.
  • Soil has red streaks, especially around plant roots.

Hydrology Indicators

Wetland hydrology refers to the presence of water at or above the soil surface for a sufficient period of the year to significantly influence the plant types and soils that occur in the area. Although the most reliable evidence of wetland hydrology may be provided by gaging station or groundwater well data, such information is limited for most areas and, when available, requires analysis by trained individuals. Thus, most hydrologic indicators are those that can be observed during field inspection. Most do not reveal either the frequency, timing, or duration of flooding or the soil saturation.

The following indicators provide some evidence of the periodic presence of flooding or soil saturation:

  • Standing or flowing water is observed on the area during the growing season
  • Soil is waterlogged during the growing season
  • Water marks are present on trees or other erect object. Such marks indicate that water periodically covers the area to the depth shown on the objects.
  • Drift lines, which are small piles of debris oriented in the direction of water movement through an area, are present. These often occur along contours and represent the approximate extent of flooding in an area.
  • Debris is lodged in trees or piled against other object by water.
  • Leaves or other objects are water stained or have visible thin layers of sediments deposited on them. Sometimes these become consolidated with small plant parts to form discernible crust on the soil surface.
  • Presence of crayfish burrows

Wetlands are currently defined by the U.S. Army Corps of Engineers as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted to life in saturated soil conditions." Not all wetlands fall within the Corps' regulatory jurisdiction. Information regarding how the Corps evaluates whether or not a wetland is regulated is available from the Clean Water Act Guidance page.

The following documents provide more information about requesting a wetland delineation, applicant information required for a wetland delineation, and memorializing the wetland delineation by survey. The amount and type of information requested by each individual Corps field office may vary somewhat from that presented here. Please check with the field office nearest your project location to verify the information necessary for submittal.

            Atlantic & Gulf Coast Plain Region

            Caribbean Islands Region

Mitigation

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Mitigating the environmental impacts of necessary development actions on the nation's wetlands and other aquatic resources is a central premise of federal wetlands programs. The Clean Water Act (CWA) Section 404 permit program relies on the use of compensatory mitigation to offset unavoidable damage to wetlands and other aquatic resources through, for example, the restoration or creation of wetlands. Under the "Swampbuster" provisions of the Food Security Act (FSA), farmers are required to provide mitigation to offset certain conversions of wetlands for agricultural purposes in order to maintain their program eligibility.

Mitigation for wetland impacts may take place on-site, off-site, in mitigation banks, or be funded by in-lieu fees. Mitigation may include creation, enhancement or restoration of wetlands and their functions or, in some cases, may include preservation of wetlands and associated upland buffers.



Mitigation Banks

Information pertaining to mitigation banks is available at the Regulatory In-Lieu fee and Bank Information Tracking System (RIBITS).

 

Compensatory Mitigation

Compensatory Mitigation Rule

The Corps of Engineers permit regulations, at 33 CFR 325.4, stipulate that special conditions may be added to permits in order to satisfy public interest concerns and/or legal requirements, such as compliance with the Clean Water Act 404(b)(1) Guidelines. If a proposed permit action would result in impacts to wetlands, these special conditions often include provisions requiring the permittee to compensate for the expected impact. This compensation is commonly referred to as compensatory mitigation. It may also be referred to simply as mitigation, although strictly speaking, it is only one of three forms of mitigation. The first two forms, avoidance and minimization, are typically addressed through alternative siting and/or modifications to the project design. For most standard permits (i.e., those that require issuance of a public notice), and in particular those subject to regulation under the Clean Water Act, avoidance and minimization of impacts to aquatic resources, including wetlands, must be addressed prior to considering compensatory mitigation. Compensatory mitigation, therefore, is only utilized to offset impacts which are otherwise unavoidable. The process of incorporating all appropriate and practicable measures to avoid, minimize and, finally, compensate for impacts to aquatic resources caused by permit actions is referred to as sequencing.

The Corps of Engineers' mitigation policy relative to projects authorized under Section 404 of the Clean Water Act is explained in a Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army, which was signed on February 6, 1990. The memorandum establishes that: "The Corps will strive to avoid adverse impacts and offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will strive to achieve a goal of no overall net loss of values and functions." Compensatory mitigation for wetland impacts may be accomplished in several ways. The most common forms of mitigation are projects which result in the restoration, enhancement or creation of wetlands. In exceptional circumstances, compensatory mitigation may also be accomplished through the preservation of unique and valuable wetlands which are under demonstrable threat of destruction. In general, the memorandum establishes a preference for onsite mitigation at or in the immediate vicinity of the wetland impact site and for in-kind replacement using wetlands which are similar to those which would be impacted. These preferences may be overriden, however, if onsite and in-kind mitigation is not available, not practicable or if another mitigation option is environmentally preferable. Compensatory mitigation for wetland impacts should, to the extent practicable, result in a minimum of one-to-one functional replacement, or one-to-one acreage replacement if adequate functional assessment techniques are not available.

Mitigating the environmental impacts of necessary development actions on the nation's wetlands and other aquatic resources is a central premise of federal wetlands programs. The Clean Water Act (CWA) Section 404 permit program relies on the use of compensatory mitigation to offset unavoidable damage to wetlands and other aquatic resources through, for example, the restoration or creation of wetlands. Under the "Swampbuster" provisions of the Food Security Act (FSA), farmers are required to provide mitigation to offset certain conversions of wetlands for agricultural purposes in order to maintain their program eligibility.

Mitigation for wetland impacts may take place on-site, off-site, in mitigation banks, or be funded by in-lieu fees. Mitigation may include creation, enhancement or restoration of wetlands and their functions or, in some cases, may include preservation of wetlands and associated upland buffers.



Consistent with the Corps’ regulations at 33 CFR Part 332, concerning compensatory mitigation for aquatic resource impacts, one objective is to provide a minimum one-to-one functional replacement for wetland loss. To do this, the functions of a wetland can be identified and evaluated through a numeric functional assessment methodology. While the Corps neither prescribes nor prohibits any specific numeric functional assessment, the Corps desires to be responsive to the needs of the public by accepting the same methodology required by state and local levels, when appropriate.



The Wetland Rapid Assessment Procedure (WRAP) is a matrix developed by the South Florida Water Management District to assist the regulatory evaluation of mitigation sites (created, restored, enhanced or preserved) that are permitted through the District's Management and Storage of Surface Waters of the Environmental Resource Permit processes. The objectives of WRAP are:

  • To establish an accurate, consistent, and timely regulatory tool
  • To track trends over time (land use vs. wetland impacts)
  • To offer guidance for environmental site plan development.

WRAP evaluation is a rapid assessment meant to be used within the limited timeframes of the regulatory process. Test results of the WRAP procedure showed it to be highly repeatable and an effective training tool for biologists. As additional data are collected, further analysis will be conducted in attempt to establish a relationship between land use and wetland function.



The Uniform Mitigation Assessment Method (UMAM) was developed by various state of Florida regulatory agencies, with input from local government and the Corps, Jacksonville District. On February 2, 2004, UMAM went into effect at the state level, and those state and local governments responsible for environmental regulation were required to begin utilizing the methodology. Prior to its implementation at the federal level, the Corps conducted a study of the method and recommended UMAM be used for federal wetland regulatory purposes starting August 1, 2005. Implementation of UMAM by the Corps included a few changes from the state rule. Specifically, the Corps continues to use the Temporal Lag Table - Corps 3% discount rate, rather than the state’s time lag table, based on a 7% rate. Also, the Corps has more restrictions compared to the state in the amount of wetland and upland preservation credit given. The method is used to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters and to award and deduct mitigation bank credits.

The following presentation explains calculating mitigation when utilizing WRAP. 

Endangered Species

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The Corps is required to evaluate the potential impacts of a proposed action on any federally listed threatened or endangered species or its designated critical habitat. These evaluations often require coordination with the U.S. Fish and Wildlife Service and/or NOAA Fisheries pursuant to Section 7 of the Endangered Species Act.

As prescribed under Section 7(a)(2) of the Endangered Species Act (ESA) and its implementing regulations at 50 CFR Section 402, for every activity in which a federal action is involved, each federal agency carrying out the action, in our case the Corps, is required to evaluate the effects (make an effect determination) of each proposed action on any federally listed threatened or endangered species or its designated critical habitat. Under the ESA regulations and the Services' [U.S. Fish and Wildlife Service's (FWS) and National Marine Fisheries Service's (NMFS)] March 1998, Section 7 Consultation Handbook, for those projects where the Corps makes a finding of "no affect," nothing more will need to be done regarding consultation with the appropriate Service. For those where the Corps makes a finding of "may affect not likely to adversely affect," the Corps will request the appropriate Service’s written concurrence with its determination under the procedures governing informal consultation, and for those where the Corps makes a finding of "may affect," the Corps will request that Service to initiate formal consultation.

What does "consultation under Section 7" mean? As mentioned above, the ESA requires the Corps to determine for each application whether the proposed project (a dock or other activity) will affect a particular species or its habitat. If the Corps determines the project will not affect the species, then the Corps proceeds with the review of the project for other issues, such as navigation and public interest, and renders a decision. If the determination is that the project may affect but is not likely to adversely affect the species, then the Corps asks FWS or NMFS for their concurrence. If the Corps determines that the project may affect the species (without concluding it is not likely to adversely affect) the Corps and FWS or NMFS will engage in formal consultation which normally concludes with a Biological Opinion.

Additional Information for Endangered Species:

Piping Plover

The following document transmits the U.S. Fish and Wildlife Service’s (Service) Programmatic Piping Plover Biological Opinion (P3BO) for the effects of U.S. Army Corps of Engineers (Corps) planning and regulatory shore protection activities on the non-breeding piping plover (Charadrius melodus) and its designated Critical Habitat in accordance with section 7 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). The current status of the federally listed piping plover is threatened, and the Service designated Critical Habitat for wintering piping plovers on July 10, 2001. This P3BO is for the North Florida Ecological Services Office (NFESO) and the South Florida Ecological Services Office (SFESO) areas of responsibility (AORs).

Programmatic Piping Plover Biological Opinion (P3BO)

 

Florida Bonneted Bat (Eumops floridanus)

On November 1, 2013, the Florida Bonneted Bat (FBB) was federally listed as endangered under the Endangered Species Act. The US Fish & Wildlife Service provided the following interim effect determination guidelines to the Corps. Critical habitat for the Florida Bonneted Bat has not yet been designated.

Once critical habitat is finalized, a full programmatic key, survey protocol(s), and compensation recommendations will be developed. When those are available, they will supersede the 2013 interim effect determination.
        2013 FBB Effect Determination Guidelines.pdf

        Locations and Habitat Types Recorded or Observed for Florida Bonneted bats.pdf

Eastern Indigo Snake

The U.S. Fish and Wildlife Service (Service), through consultation with the U.S. Army Corps of Engineers, Jacksonville District (Corps), have standardized the programmatic concurrence and key for effect determinations for the Eastern Indigo Snake (Drymarchon corais couperi). This document has now been approved for use in making effect determinations throughout the State of Florida.  

Additional Documents:

Everglades Snail Kite

Tools to improve the timing and consistency of review of federal permit applications for potential effects of these projects on the endangered Everglades Snail Kite (Rostrhamus sociabilis plumbeus), or their wetland habitats, within the U. S. Fish And Wildlife Service's geographic area of responsibility in Florida are currently under review. They will be posted to this site as soon as they are approved for use.

Florida Panther

U.S. Fish and Wildlife Letter, dated August 18, 2000 provides final interim Standard Local Operating Procedures for Endangered Species (SLOPES) for conducting consultations between the Fish & Wildlife Service and the Corps for permit applications regarding the Florida panther.

Florida Panther Effect Determination Key, February 19, 2007

This key is based on the most recent (best available scientific and commercial) data. The boundaries of the prior "consultation area" have been modified, the term "consultation area" has been discontinued, and a new term, "focus area," introduced. The terms do not have the same connotation and should not be considered interchangeable. The Panther Focus Area south of the Caloosahatchee River is divided into Primary, Secondary and Dispersal Zones; and north of the Caloosahatchee River into Primary Dispersal/Expansion Area and Thatcher Model Dispersal Pathways. Also, consultation may be necessary outside the focus area, depending on several factors which are described in the "rationale."

Freshwater Mussels

Nine endangered and six threatened mussels are known to exist in the watersheds of the Escambia, Yellow, Choctawhatchee, Apalachicola and Ochlockonee rivers of Alabama, Florida and Georgia. Regulatory project managers will evaluate projects that occur in these rivers and their tributaries for potential effects to these listed species and/or designated critical habitat, and initiate consultation with the US Fish and Wildlife Service (USFWS) in accordance with Section 7 of the Endangered Species Act.

More information on listed mussels and maps of designated critical habitat is available from the USFWS Panama City Office.

Gulf Sturgeon

Johnson’s Seagrass

Because of concerns about adverse impacts to Johnson's seagrass (Halophila johnsonii), dock construction anywhere in the estuarine lagoon systems on Florida's east coast from Sebastian Inlet (Brevard County) south to and including central Biscayne Bay (Miami-Dade County) must also comply with the construction guidelines titled "Key for Construction Conditions for Docks or Other Minor Structures Constructed in or over Johnson's seagrass (Halophila johnsonii) National Marine Fisheries Service/U.S. Army Corps of Engineers – February 2002."

  • Key For Construction Conditions for Docks or Other Minor Structures Constructed in or over Johnson's seagrass (Halophila johnsonii) National Marine Fisheries Service/U.S. Army Corps of Engineers - February 2002 (Johnson's seagrass only occurs in the estuarine lagoonal systems on Florida's east coast from Sebastian Inlet (Brevard County) south to the middle of Biscayne Bay (Rickenbacker Causeway-Miami-Dade County)) (updated October 2002)

Manatee

As of April 2013, the Corps Jacksonville District is using the Manatee Key 2013 to evaluate Department of the Army Permit applications for projects in relation to the West Indian Manatee. The Manatee Key is a result of an interagency effort between the Corps, the Service and the FWC.

In addition to the ESA, the manatee falls under the Marine Mammal Protection Act (MMPA), which prohibits the incidental take of the manatee absent rulemaking to the contrary.

What is the "Manatee Key?" This is a document that provides a list of questions that guides the Corps project manager through reviewing an application to a determination of whether the proposed project may affect the manatee.

Manatee Key 2013: 

  • Standard Conditions for In-Water Work - 2011
  • Manatee Education Signs Brochure - March 2011
  • Special Manatee Sanctuary Conditions/Exceptions
  • Manatee Biological Evaluation Applicant Form - other than single-family
  • FWS Letter Dated April 25, 2013, regarding use of the Manatee Key 
  • 2011 Florida Manatee Key Programmatic Biological Opinion 

     

    Reach Characterizations:

  • North Atlantic Right Whale

    Tools to improve the timing and consistency of review of Federal permit applications for potential effects of these projects on the endangered North Atlantic Right whale (Balaena glacialis (incl. australis)), or their habitats, within the National Marine Fisheries Service's geographic area of responsibility in Florida are currently under review. They will be posted to this site as soon as they are approved for use.

    This is an example of a typical North Atlantic Right Whale sign that is often required by the National Marine Fisheries Service for certain boating structures. Right Whale Signage.

    Sea Turtles

    There are several species of protected turtles that occur or have the potential to occur in Florida waters, such as: Loggerhead (Caretta caretta), Green (Chelonia mydas), Leatherback (Dermochelys coriacea), Hawksbill (Eretmochelys imbricata), and Kemp's Ridley (Lepidochelys kempii). For many activities, potential adverse impacts to sea turtles can be reduced and/or eliminated through adherence to the construction conditions found in the joint Corps/National Marine Fisheries Service's Sea Turtle and Smalltooth Sawfish Construction Conditions – Revised March 23, 2006." Some proposed projects may require consultation with National Marine Fisheries Service or US Fish and Wildlife Service for potential effects to sea turtles.

    Smalltooth Sawfish

    The Smalltooth sawfish (Pristis pectinata) is listed as endangered and mainly occurs in southern waters.  Consultation with the National Marine Fisheries Service is sometimes required with this species as well as the Sea turtles listed above.  For more information on the habitat, distribution, threats, and conservation measures, please visit the NOAA-NMFS site at this link, click here.

    As listed above for the Sea Turtles, for in-water work often the "Sea Turtle and Smalltooth Sawfish Costruction Conditions" are required as part of the permit conditions.  Sometimes information signage is required, this is an example of a recent information sign from the NMFS - Signage.

    Wood Stork

    The Corps works closely with the U.S. Fish and Wildlife Service (Service) in an effort to improve the timing and consistency of the review of federal permit applications for potential effects of these projects on the endangered wood stork (Mycteria americana) and its wetland habitat. The following documents are provided as tools to assist in these determinations:

    Other Permitting Factors

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    Intracoastal Waterway (IWW) Setback

    In December 1998, the Jacksonville District of the U.S. Army Corps of Engineers (Corps) provided public notice of the setback criterion to be utilized for the review of structures proposed to be placed along certain Federal channels. Since that time, operational circumstances have dictated the need to make some modifications to the setback guidance. These modifications are necessary to allow operation and maintenance of the Federal channels to be accomplished in an efficient, cost-effective and environmentally acceptable manner.

    In the Florida Panhandle, USACE Mobile District is responsible for federally maintained channels west of Jefferson County. The setback criterion is generally 75' from the near edge of the channel. Please contact your local Jacksonville District Regulatory office for more information.

     

    Essential Fish Habitat is defined as "those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity." Under the requirements of the Magnuson-Stevens Fishery Conservation and Management Act, federal agencies, (including the Corps of Engineers) are required to consult with National Oceanic and Atmospheric Administration (NOAA) Fisheries on all actions or proposed actions that may adversely affect Essential Fisheries Habitat (EFH). If coastal development projects have the potential to adversely affect marine, estuarine or anadromous species or their habitat, the National Marine Fisheries Service (NMFS) makes recommendations on how to avoid, minimize or compensate these impacts.

    Adverse impacts to aquatic vegetation from dock construction may be ameliorated by strict adherence to the joint Corps/National Marine Fisheries Service's "Dock Construction Guidelines in Florida for Docks or Other Minor Structures Constructed in or over Submerged Aquatic Vegetation, Marsh or Mangrove Habitat — U.S. Army Corps of Engineers/National Marine Fisheries Service — August 2001." Additionally, because of concerns about adverse impacts to Johnson's seagrass (Halophila johnsonii), dock construction anywhere in the estuarine lagoon systems on Florida's east coast from Sebastian Inlet (Brevard County) south to and including central Biscayne Bay (Miami-Dade County) must also comply with the construction guidelines titled "Key for Construction Conditions for Docks or Other Minor Structures Constructed in or Over Johnson's seagrass (Halophila johnsonii) National Marine Fisheries Service/U.S. Army Corps of Engineers — February 2002."

    Note: Both of the Construction Guidelines may be subject to revision at any time. It is our intention that the most recent version of this technical tool will be utilized during the evaluation of any permit application.

    • Dock Construction Guidelines in Florida for Docks or Other Minor Structures Constructed in or over Submerged Aquatic Vegetation, Marsh or Mangrove Habitat - U.S. Army Corps of Engineers/National Marine Fisheries Service - August 2001 (updated June 2008)
    • Key for Construction Conditions for Docks or Other Minor Structures Constructed in or over Johnson's seagrass (Halophila johnsonii) National Marine Fisheries Service/U.S. Army Corps of Engineers - February 2002 (Johnson's seagrass only occurs in the estuarine lagoonal systems on Florida's east coast from Sebastian Inlet (Brevard County) south to the middle of Biscayne Bay (Rickenbacker Causeway-Miami-Dade County)) (updated October 2002).
    • Standard Manatee Conditions for In-Water Work-2011
    • Sea Turtles, Smalltooth Sawfish, and Sturgeons
    • Dock Construction Guidelines in Florida for Docks or Other Minor Structures Constructed in or over Submerged Aquatic Vegetation, Marsh or Mangrove Habitat - U.S. Army Corps of Engineers/National Marine Fisheries Service - August 2001 (updated June 2008)
    • Key for Construction Conditions for Docks or Other Minor Structures Constructed in or over Johnson's seagrass (Halophila johnsonii) National Marine Fisheries Service/U.S. Army Corps of Engineers - February 2002 (Johnson's seagrass only occurs in the estuarine lagoonal systems on Florida's east coast from Sebastian Inlet (Brevard County) south to the middle of Biscayne Bay (Rickenbacker Causeway-Miami-Dade County)) (updated October 2002)

    In Florida, Puerto Rico, and the U.S. Virgin Islands, the U.S. Army Corps of Engineers, Jacksonville District, exercises Section 10 (of the Rivers and Harbors Act of 1899) regulatory jurisdiction over the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. Additionally, all or portions of tributaries to the above waters may also be subject to Section 10 authority. However, complete lists of all rivers, streams, creeks, ponds, and lakes subject to Corps Section 10 authority are not available. Below are lists of waters over which the Jacksonville District currently exercises regulatory jurisdiction under the authority of both Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act on all or a portion of the listed water. The absence of a water on these lists does not
    mean it or a portion of it is not a navigable water. Likewise, the inclusion of a water on these lists is not meant to imply that the water is subject to Section 10 authority in its entirety. All waters subject to the ebb and flow of the tide (tidal action) are navigable waters of the US, and many of the waters listed below have some portion that is subject to the ebb and flow of the tide. Inquiries concerning
    Department of the Army Permit requirements on these and other tributary streams and lakes not listed below should be submitted on a case-by case basis to the Regulatory Division, Jacksonville District.

    The Section 10 waters lists (below) from the Jacksonville District were compiled from multiple approved and draft navigability studies conducted during the 1970s and 1980s, and from local knowledge of tidally influenced waters. The District makes no claim that these lists are complete or completely accurate. These lists are for regulatory reference purposes only. They are not a substitute for a jurisdictional determination (JD). It is imperative that you contact the appropriate Regulatory Permit Section for a determination on whether the Corps is able to ascertain if a particular project falls within or outside of Section 10 authority.

    List of Navigable Waters of the United States within the Jacksonville District.pdf

    Appeals

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    Procedures for appealing Corps permit decisions are found at 33 CFR Part 331. The following paragraph briefly summarizes the permit appeal process.

    The U.S. Army Corps of Engineers has an administrative appeal process whereby applicants and landowners may appeal denied permits, issued permits that contain requirements that are unacceptable to the applicant, or approved jurisdictional determinations. Although these decisions are made by Corps District offices. Requests for appeals of such decisions are appealed to the Corps Division offices. Requests for appeal must be furnished to the Division office within 60 days of the date of the appealable decision. A site visit or an appeal conference or meeting may be conducted during the appeal process. A decision on the merits of the appeal based on the administrative record is normally made in 90 days. The Division will either uphold the District decision or send the case back to the District, with direction to make a new decision. Current appeals under review in South Atlantic Division, including Jacksonville District, may be found here.

    Enforcement

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    Procedures for enforcing Corps permitting authorities are found at 33 CFR Part 326. The following paragraphs briefly summarize those procedures.

    Inspection and surveillance activities are carried out by all means at the District Engineer's disposal. Corps employees are instructed on the observation and reporting of suspected unauthorized activities in waters of the United States and of violations of issued permits. The assistance of members of the public and other interested federal, state and local agencies is encouraged.

    When the District Engineer becomes aware of any unauthorized activity still in progress, he must first issue a cease and desist order and then begin an investigation of the activity to ascertain facts concerning alleged violations. If the unauthorized activity has been completed he will advise the responsible party of his discovery and begin an investigation. Following his evaluation, the District Engineer may formulate recommendations on the appropriate administrative course or legal action to be taken.

    The District Engineer's evaluation contains an initial determination of whether any significant adverse impacts are occurring that would require expeditious corrective measures to protect life, property, or a significant public resource. Once that determination is made, such remedial measures can be administratively ordered and a decision can be made on whether legal action is necessary. In certain cases, District Engineers, following the issuance of a cease and desist order, coordinate with state and federal resource agencies in deciding what action is appropriate. Further evaluation of the violation takes into consideration voluntary compliance with a request for remedial action. A permit is not required for restoration or other remedial action.

    For those cases that do not require legal action and for which complete restoration has not been ordered, the Department of the Army will accept applications for after-the-fact permits. The full public interest review is deferred during the early stages of the enforcement process. A complete public interest review is conducted only if and when the District Engineer accepts an application for an after-the-fact permit.

    The laws that serve as the basis for the Corps' regulatory program contain several enforcement provisions which provide for criminal, civil and administrative penalties. While the Corps is solely responsible for the initiation of appropriate legal actions pursuant to enforcement provisions relating to its Section 10 authority, the responsibility for implementing those enforcement provisions relating to Section 404 is jointly shared by the Corps and U.S. Environmental Protection Agency (USEPA). For this reason the Army has signed a Section 404 enforcement memorandum of agreement (MOA) with USEPA to ensure that the most efficient use is made of available federal resources. Pursuant to this MOA, the Corps generally assumes responsibility for enforcement actions with the exception of those relating to certain specified violations involving unauthorized activities.

    If a legal action is instituted against the person responsible for an unauthorized activity, an application for an after-the-fact permit cannot be accepted until final disposition of all judicial proceedings, including payment of all fees as well as completion of all work ordered by the court.

    Presently about 6,000 alleged violations are processed in Corps district offices each year. The approximate breakdown by authority is: Section 10, 15 percent; Section 404, 60 percent; and Section 10/404, 25 percent.

    The Corps strives to reduce violations by effective publicity, a comprehensive general permit program, and an efficient and fair evaluation of individual permit applications.



    MEMORANDUM OF AGREEMENT BETWEEN The Department of the Army AND The Environmental Protection Agency CONCERNING Federal Enforcement for the Section 404 Program of the Clean Water Act

    Regulations and Policies

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    Corps of Engineers Statutory Authorities

    U.S. Army Corps of Engineers Regulatory Program Regulations
    (33 CFR 320-332)

    Related Regulations

    Related Laws

     

    Corps of Engineers Administrative Materials

    Presidential Directives and Executive Orders

    Enforcement

    Other Guidance

    Administrative Appeals