33 C.F.R. § 323.3

Discharges requiring permits

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(a) General. Except as provided in § 323.4 of this part, DA permits will be required for the discharge of dredged or fill material into waters of the United States. Certain discharges specified in 33 CFR part 330 are permitted by that regulation (“nationwide permits”). Other discharges may be authorized by district or division engineers on a regional basis (“regional permits”). If a discharge of dredged or fill material is not exempted by § 323.4 of this part or permitted by 33 CFR part 330, an individual or regional section 404 permit will be required for the discharge of dredged or fill material into waters of the United States.

(b) Activities of Federal agencies. Discharges of dredged or fill material into waters of the United States done by or on behalf of any Federal agency, other than the Corps of Engineers (see 33 CFR 209.145), are subject to the authorization procedures of these regulations. Agreement for construction or engineering services performed for other agencies by the Corps of Engineers does not constitute authorization under the regulations. Division and district engineers will therefore advise Federal agencies and instrumentalities accordingly and cooperate to the fullest extent in expediting the processing of their applications.

(c) Pilings. (1) Placement of pilings in waters of the United States constitutes a discharge of fill material and requires a section 404 permit when such placement has or would have the effect of a discharge of fill material. Examples of such activities that have the effect of a discharge of fill material include, but are not limited to, the following: Projects where the pilings are so closely spaced that sedimentation rates would be increased; projects in which the pilings themselves effectively would replace the bottom of a waterbody; projects involving the placement of pilings that would reduce the reach or impair the flow or circulation of waters of the United States; and projects involving the placement of pilings which would result in the adverse alteration or elimination of aquatic functions.

(2) Placement of pilings in waters of the United States that does not have or would not have the effect of a discharge of fill material shall not require a section 404 permit. Placement of pilings for linear projects, such as bridges, elevated walkways, and powerline structures, generally does not have the effect of a discharge of fill material. Furthermore, placement of pilings in waters of the United States for piers, wharves, and an individual house on stilts generally does not have the effect of a discharge of fill material. All pilings, however, placed in the navigable waters of the United States, as that term is defined in part 329 of this chapter, require authorization under section 10 of the Rivers and Harbors Act of 1899 (see part 322 of this chapter).

[51 FR 41232, Nov. 13, 1986, as amended at 58 FR 45036, Aug. 25, 1993]

Notes of Decisions

Cited in 21 cases (1 in the last 5 years), 1980–2023 · leading case: Nat'l Ass'n of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459 (D.C. Cir. 2006).

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Nat'l Ass'n of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459 (D.C. Cir. 2006). · cites it 2× “17, 2001) (codified at 33 C.F.R. § 323.3 and 40 C.F.R. § 232.2 ).”

United States v. Weisman, 489 F. Supp. 1331 (M.D. Fla. 1980). · cites it 2× “33 C.F.R. § 323.3 (p). The term “nationwide permit” means a Department of the Army authorization that has been issued by this regulation in § 323.”

United States v. Tull, 615 F. Supp. 610 (E.D. Va. 1983). · cites it 2× “See 33 C.F.R. § 323.3 (a)(1). An estimated 20,000 cubic yards of sand were used to fill the Ocean Breeze Mobile Home Sites.”

United States v. Newdunn Assocs., 195 F. Supp. 2d 751 (E.D. Va. 2002). · cites it 2× “120 (e)(2) (1974) and 33 C.F.R. § 323.3 (a) (1986). 19.The 1975 regulations, in its definition of “Navigable waters,” includes “All tributaries of navigable waters of the United States up to their headwaters and landward to their ordinary high water mark.”

Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 833 F.3d 1274 (11th Cir. 2016). “See 33 C.F.R. § 323.3 (specifying activities requiring permits); 33 C.”

United States v. RGM Corp., 222 F. Supp. 2d 780 (E.D. Va. 2002). “120 (e)(2) (1974) and 33 C.F.R. § 323.3 (a) (1986). The 1975 regulations’ definition of “Navigable waters” includes, “All tributaries of navigable waters of the United States up to their headwaters and landward to their ordinary high water mark.”

United States v. Schmitt, 999 F. Supp. 317 (E.D.N.Y 1998). “In addition, 33 C.F.R. § 323.3 (a) provides: Except as provided in § 323.”

Shore Builders, Inc. v. Dogwood, Inc., 616 F. Supp. 1004 (D. Del. 1985). · cites it 2× “33 C.F.R. § 323.3 (c) (1984). 3 . The “mean high water mark” and "high tide line” are distinct concepts, although in practice they may turn out to be the same.”

United States v. Schmitt, 734 F. Supp. 1035 (E.D.N.Y 1990). “” In addition, 33 C.F.R. § 323.3 (a) provides: “Except as provided in § 323.”

Buttrey v. United States, 573 F. Supp. 283 (E.D. La. 1983). · cites it 2× “33 C.F.R. § 323.3 (a) (1982). Buttrey argues that Gum Bayou, a non-navigable stream, is a primary tributary of the navigable West Pearl River, and that the sewage treatment plant is situated in wetlands adjacent to Gum Bayou.”

United States v. Lee Wood Contracting, Inc., 529 F. Supp. 119 (E.D. Mich. 1981). “2(a)(3), the area still falls within the Corps of Engineers regulations under 33 CFR 323.3(a)(5) because its degradation would affect interstate commerce.”

Am. Mining Cong. v. U.S. Army Corps of Engineers, 120 F. Supp. 2d 23 (D.D.C. 2000). “33 C.F.R. § 323.3 (d)(l)(iii). Another subsection underscores that the term does not include “incidental fallback.”

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— 33 C.F.R. § 323.3(a)(5) — 1 case

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