33 C.F.R. § 322.3

Activities requiring permits

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(a) General. DA permits are required under section 10 for structures and/or work in or affecting navigable waters of the United States except as otherwise provided in § 322.4 below. Certain activities specified in 33 CFR part 330 are permitted by that regulation (”nationwide general permits”). Other activities may be authorized by district or division engineers on a regional basis (“regional general permits”). If an activity is not exempted by section 322.4 of this part or authorized by a general permit, an individual section 10 permit will be required for the proposed activity. Structures or work are in navigable waters of the United States if they are within limits defined in 33 CFR part 329. Structures or work outside these limits are subject to the provisions of law cited in paragraph (a) of this section, if these structures or work affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity. For purposes of a section 10 permit, a tunnel or other structure or work under or over a navigable water of the United States is considered to have an impact on the navigable capacity of the waterbody.

(b) Outer continental shelf. DA permits are required for the construction of artificial islands, installations, and other devices on the seabed, to the seaward limit of the outer continental shelf, pursuant to section 4(f) of the Outer Continental Shelf Lands Act as amended. (See 33 CFR 320.2(b).)

(c) Activities of Federal agencies. (1) Except as specifically provided in this paragraph, activities of the type described in paragraphs (a) and (b) of this section, done by or on behalf of any Federal agency are subject to the authorization procedures of these regulations. Work or structures in or affecting navigable waters of the United States that are part of the civil works activities of the Corps of Engineers, unless covered by a nationwide or regional general permit issued pursuant to these regulations, are subject to the procedures of separate regulations. Agreement for construction or engineering services performed for other agencies by the Corps of Engineers does not constitute authorization under this regulation. Division and district engineers will therefore advise Federal agencies accordingly, and cooperate to the fullest extent in expediting the processing of their applications.

(2) Congress has delegated to the Secretary of the Army in section 10 the duty to authorize or prohibit certain work or structures in navigable waters of the United States, upon recommendation of the Chief of Engineers. The general legislation by which Federal agencies are enpowered to act generally is not considered to be sufficient authorization by Congress to satisfy the purposes of section 10. If an agency asserts that it has Congressional authorization meeting the test of section 10 or would otherwise be exempt from the provisions of section 10, the legislative history and/or provisions of the Act should clearly demonstrate that Congress was approving the exact location and plans from which Congress could have considered the effect on navigable waters of the United States or that Congress intended to exempt that agency from the requirements of section 10. Very often such legislation reserves final approval of plans or construction for the Chief of Engineers. In such cases evaluation and authorization under this regulation are limited by the intent of the statutory language involved.

(3) The policy provisions set out in 33 CFR 320.4(j) relating to state or local certifications and/or authorizations, do not apply to work or structures undertaken by Federal agencies, except where compliance with non-Federal authorization is required by Federal law or Executive policy, e.g., section 313 and section 401 of the Clean Water Act.

Notes of Decisions

Cited in 17 cases, 1979–2020 · leading case: United States v. Milner, 583 F.3d 1174 (9th Cir. 2009).

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United States v. Milner, 583 F.3d 1174 (9th Cir. 2009). · cites it 2× “at 1298-99; see also 33 C.F.R. § 322.3 (a) (“Structures or work outside [the navigable waters of the United States] are subject to [§ 10] if these structures or work affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable…”

Bd. of Commissioners v. Tennessee Gas Pipeline Co., 850 F.3d 714 (5th Cir. 2017). “§ 403 ; 33 C.F.R. § 322.3 (a). 29 . 545 U.S. at 318-19 , 125 S.”

Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 255 F. Supp. 3d 101 (D.D.C. 2017). “33 C.F.R. § 322.3 (a), Dakota Access required a permit under Section 10 of the RHA.”

Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Colonel Lloyd Kent Brown, Etc., 875 F.2d 453 (5th Cir. 1989). “5 The RHA’s first section 10 clause, which the Vieux Carre argues mandates a Corps permit for the aquarium, states that a party may not create an obstruction to the navigable capacity of any waters of the United States. The Corps’ regulations interpret this statute as requiring…”

Save Our Wetlands, Inc. v. Colonel Thomas Sands, Etc., (Two Cases), 711 F.2d 634 (5th Cir. 1983). “” 33 C.F.R. § 322.3 (1979). Power transmission lines are included in the definition of structures.”

Huron Mountain Club v. United States Army Corps of Engineers, 545 F. App'x 390 (6th Cir. 2013). “HMC also relies on the Corps' regulation, 33 C.F.R. § 322.3 (c)(2) for the proposition that section 10 operates as a "congressional permitting mandate.”

Orleans Audubon Soc'y, Sierra Club, Intervenor-Appellant v. Colonel Robert C. Lee, in His Off. Capacity as Dist. Eng'r, 742 F.2d 901 (5th Cir. 1984). “In general, the Corps requires individual permits for all “structures and/or work in or affecting navigable waters of the United States ____” unless the regulations specifically exempt the activity, 33 C.F.R. § 322.3 (a) (1983), but it has established “nationwide permits” which…”

United States v. Land, 62.50 Acres of Land More or Less, Situated in Jefferson Par., State of Louisiana, Okc Ltd. P'ship, 953 F.2d 886 (5th Cir. 1992). “” 33 C.F.R. § 322.3 (a) (1991). 6 .Section 106 of the National Historic Preservation Act provides that “[t]he head of any Federal department or independent agency having authority to license any undertaking shall, prior to .”

Mohlen v. United States, 74 Fed. Cl. 656 (Fed. Cl. 2006). “2 (f)(1); see also 33 C.F.R. §§ 322.3 (a) & 330.1(b)-(d). When a general (nationwide or regional) permit is inappropriate, a citizen may apply for an individual permit, which the Corps may issue after case-by-case evaluation of a specific structure and a determination that the…”

All. to Protect Nantucket Sound, Inc. v. United States Dep't of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003). “2 (b); see also 33 C.F.R. § 322.3 (b) (same); 33 C.F.R. § 322.”

Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979). “If an agency asserts that it has Congressional authorization meeting the test of Section 10 or would otherwise be exempt from the provisions of Section 10, the legislative history and/or provisions of the Act should clearly demonstrate that Congress was approving the exact…”

United States v. Hernandez, 979 F. Supp. 70 (D.P.R. 1997). “§ 403 ; 33 C.F.R. § 322.3 (a). The Court today holds that the ACOE’s decision that the houseboats were permanently moored floating vessels was not arbitrary and capricious.”

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