(a) District engineers will add special conditions to Department of the Army permits when such conditions are necessary to satisfy legal requirements or to otherwise satisfy the public interest requirement. Permit conditions will be directly related to the impacts of the proposal, appropriate to the scope and degree of those impacts, and reasonably enforceable.
(1) Legal requirements which may be satisfied by means of Corps permit conditions include compliance with the 404(b)(1) guidelines, the EPA ocean dumping criteria, the Endangered Species Act, and requirements imposed by conditions on state section 401 water quality certifications.
(2) Where appropriate, the district engineer may take into account the existence of controls imposed under other federal, state, or local programs which would achieve the objective of the desired condition, or the existence of an enforceable agreement between the applicant and another party concerned with the resource in question, in determining whether a proposal complies with the 404(b)(1) guidelines, ocean dumping criteria, and other applicable statutes, and is not contrary to the public interest. In such cases, the Department of the Army permit will be conditioned to state that material changes in, or a failure to implement and enforce such program or agreement, will be grounds for modifying, suspending, or revoking the permit.
(3) Such conditions may be accomplished on-site, or may be accomplished off-site for mitigation of significant losses which are specifically identifiable, reasonably likely to occur, and of importance to the human or aquatic environment.
(b) District engineers are authorized to add special conditions, exclusive of paragraph (a) of this section, at the applicant's request or to clarify the permit application.
(c) If the district engineer determines that special conditions are necessary to insure the proposal will not be contrary to the public interest, but those conditions would not be reasonably implementable or enforceable, he will deny the permit.
(d) Bonds. If the district engineer has reason to consider that the permittee might be prevented from completing work which is necessary to protect the public interest, he may require the permittee to post a bond of sufficient amount to indemnify the government against any loss as a result of corrective action it might take.
Notes of Decisions
Save Our Wetlands, Inc. v. Colonel Thomas Sands, Etc., (Two Cases), 711 F.2d 634 (5th Cir. 1983).
· cites it 5× “” 33 C.F.R. § 325.4 (b)(1) (1$79). After the period for comment by interested agencies and the public: If the District Engineer’s final determination after consideration of all additional information developed (including responses to the public notice) is that the proposed work…”
Port of Seattle v. Pollution Control Hearings Bd., 90 P.3d 659 (Wash. 2004).
“4(r) (authorizing off-site mitigation, generally); 33 C.F.R. § 325.4 (a)(3). ACC also contends that out-of-basin mitigation cannot comply with state water quality standards in this case.”
Sierra Club v. U.S. Army Corps of Engineers, 909 F.3d 635 (4th Cir. 2018).
“hen, as is the case with NWP 12, a state's certification of the general permit imposes additional "special conditions," the Corps must "make these special conditions regional conditions of the NWP for activities which may result in a discharge into waters of the United States in…”
Nat'l Wildlife Fed'n v. Marsh, 568 F. Supp. 985 (D.D.C. 1983).
· cites it 3× “§ 4332 (2)(C), and 33 C.F.R. § 325.4 (b)(3), the District Engineer released a draft Environmental Impact Statement for public review and comment.”
Hillsdale Env't Loss Prevention, Inc. v. United States Army Corps of Engineers, 702 F.3d 1156 (10th Cir. 2012).
“BNSF’s permit specifically states that the Corps may reevaluate its decision to issue the permit at any time, and such reevaluation may lead to the suspension, modification, or revocation of the permit. Accordingly, we decline to find Hillsdale’s NEPA claims prudentially moot.”
Hugh Boles v. Onton Dock, Inc., 659 F.2d 74 (6th Cir. 1981).
· cites it 4× “7 33 C.F.R. 325.4(B)(1) and (2). 8 The primary issue raised by appellants concerns the scope of review of the Corps' decision that an Impact Statement was not necessary.”
Sierra Club v. Flowers, 423 F. Supp. 2d 1273 (S.D. Fla. 2006).
· cites it 2× “This is far too vague to be in compliance with NEPA, and its open-endedness violates the requirement that permit conditions be “reasonably enforceable” — -found in 33 C.”
Salt Pond Assocs. v. United States Army Corps of Engineers, 815 F. Supp. 766 (D. Del. 1993).
· cites it 3× “43 As a source of this “extensive activities/special conditions” authority, the Government points to 33 C.F.R. § 325.4 (a), which provides that: District Engineers will add special conditions to the Department of the Army permits when such conditions are necessary to satisfy…”
— 33 C.F.R. § 325.4(B)(1) — 1 case
Hugh Boles v. Onton Dock, Inc., 659 F.2d 74 (6th Cir. 1981).
“7 33 C.F.R. 325.4(B)(1) and (2). 8 The primary issue raised by appellants concerns the scope of review of the Corps' decision that an Impact Statement was not necessary.”
— 33 C.F.R. § 325.4(a) — 2 cases
Sierra Club v. Flowers, 423 F. Supp. 2d 1273 (S.D. Fla. 2006).
“This is far too vague to be in compliance with NEPA, and its open-endedness violates the requirement that permit conditions be “reasonably enforceable” — -found in 33 C.”
— 33 C.F.R. § 325.4(a)(3) — 2 cases
Sierra Club v. Flowers, 423 F. Supp. 2d 1273 (S.D. Fla. 2006).
“This is far too vague to be in compliance with NEPA, and its open-endedness violates the requirement that permit conditions be “reasonably enforceable” — -found in 33 C.”
— 33 C.F.R. § 325.4(b)(1) — 1 case
Save Our Wetlands, Inc. v. Colonel Thomas Sands, Etc., (Two Cases), 711 F.2d 634 (5th Cir. 1983).
“” 33 C.F.R. § 325.4 (b)(1) (1$79). After the period for comment by interested agencies and the public: If the District Engineer’s final determination after consideration of all additional information developed (including responses to the public notice) is that the proposed work…”
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