C.F.R. » Title 33 » CHAPTER II—CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE › PART 322—PERMITS FOR STRUCTURES OR WORK IN OR AFFECTING NAVIGABLE WATERS OF THE UNITED STATES

33 C.F.R. § 322.4

Activities not requiring permits

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(a) Activities that were commenced or completed shoreward of established Federal harbor lines before May 27, 1970 (see 33 CFR 320.4(o)) do not require section 10 permits; however, if those activities involve the discharge of dredged or fill material into waters of the United States after October 18, 1972, a section 404 permit is required. (See 33 CFR part 323.)

(b) Pursuant to section 154 of the Water Resource Development Act of 1976 (Pub. L. 94-587), Department of the Army permits are not required under section 10 to construct wharves and piers in any waterbody, located entirely within one state, that is a navigable water of the United States solely on the basis of its historical use to transport interstate commerce.

Notes of Decisions
Cited in 11 cases, 1979–2019 · leading case: United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151 (1st Cir. 1987).
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United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151 (1st Cir. 1987). · cites it 2× “” 33 C.F.R. § 322.4 (g) (1977) (emphasis added).”
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). · cites it 3× “33 C.F.R. § 322.4 (1977) (emphasis added).”
Black Warrior River-Keeper, Inc. v. Drummond Co., 387 F. Supp. 3d 1271 (N.D. Ala. 2019). · cites it 2× “This regulation was first promulgated in 1977 as 33 C.F.R. § 322.4 (g), and the Corps indicated that this provision only applied to Section 10 of the Rivers and Harbor Act, although it acknowledged that certain activities might be "regulated under other authorities of the…”
United States v. Schmitt, 734 F. Supp. 1035 (E.D.N.Y 1990). · cites it 2× “18-20) In particular, 33 C.F.R. § 322.4 (a) provides: “[activities that were commenced or completed shoreward of established Fed *1047 eral harbor lines before May 27, 1970 .”
Fast v. W. Transp. Co., 604 P.2d 400 (Or. 1979). · cites it 4× “33 CFR §§ 322.4 (1979) exempts certain structures and work from the requirements of 33 USC § 403 , including: "(c) The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or of any currently serviceable structure constructed…”
United States v. Savare Defelice, 641 F.2d 1169 (5th Cir. 1981). “17 Rising Waters? — Dam Not “Currently Serviceable” The second point which DeFeliee challenges concerns the Corps’ interpretation of the phrase “currently serviceable” in the regulation as it applies to an exemption to the permit requirements found in 33 CFR § 322.4 (c). (See…”
Fisher v. Danos, 595 F. Supp. 461 (E.D. La. 1984). “Instead, Gulf has contended that its failure to comply with the statute is excused by the grandfather clause contained in 33 C.F.R. § 322.4 (g) (1981). The regulation provides that no section 10 permit is required for “structures or work completed before 18 December 1968 or in…”
Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979). “Because Congress affirmatively authorized the Tracy Pumping Plant, a Corps permit is not required for its present operational level. Therefore, we do not reach the question of whether an environmental impact statement is required for the Tracy Plant.”
Peconic Baykeeper, Inc. v. Suffolk Cnty., 585 F. Supp. 2d 377 (E.D.N.Y 2008). “See 33 C.F.R. § 322.4 (g) (1977). No such exemption existed under the Clean Water Act.”
Fast v. W. Transp. Co., 593 P.2d 1254 (Or. Ct. App. 1979). · cites it 3× “33 CFR §§ 322.4 (c) and (g) provide: "The following structures or work are hereby permitted for purposes of Section 10 and do not require separate Department of the Army permits: *807 "(c) The repair, rehabilitation, or replacement of any previously authorized, currently…”
Alean Hester Faust, Adm'x of the Est. of Charles Lonnie Faust, Deceased, Tommy Bennett, Curtis L. Muldrow v. South Carolina State High. Dep't, & United States of Am., Alean Hester Faust, Adm'x of the Est. of Charles Lonnie Faust, Deceased, Tommy Bennett, Curtis L. Muldrow v. South Carolina State High. Dep't, & United States of Am., 721 F.2d 934 (4th Cir. 1983). “33 CFR 322.4(a), I have determined that the South Island ferry is a permitted structure since the cable was installed prior to 18 December 1968 and there was no evidence available to the Corps to indicate it posed a hazard to navigation before the recent accidents.”
— 33 C.F.R. § 322.4(a) — 1 case
Alean Hester Faust, Adm'x of the Est. of Charles Lonnie Faust, Deceased, Tommy Bennett, Curtis L. Muldrow v. South Carolina State High. Dep't, & United States of Am., Alean Hester Faust, Adm'x of the Est. of Charles Lonnie Faust, Deceased, Tommy Bennett, Curtis L. Muldrow v. South Carolina State High. Dep't, & United States of Am., 721 F.2d 934 (4th Cir. 1983). “33 CFR 322.4(a), I have determined that the South Island ferry is a permitted structure since the cable was installed prior to 18 December 1968 and there was no evidence available to the Corps to indicate it posed a hazard to navigation before the recent accidents.”
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