The United States Army Corps of Engineers is best known for the construction of major public works projects, but it also plays a critical regulatory role in the permitting of any development project in the waters of the US. This section provides some very brief background information to assist in understanding the Army Corps regulatory programs.
You can click any of the links below to skip to a particular year, or alternatively you can simply read through the entire story, which is still unfolding …
- Background: Army Corps Permits
- 2014: The Year it All Started
- 2015: The Public and Federal Agencies Weigh In
- 2016: No Response from SEG …
- 2017: The Year of the Hurricanes … And Summers End Responds to Army Corps
- 2018: Army Corps Initiates Consultation With Federal Agencies
- 2019: Agencies Request Additional Information to Initiate their Reviews
- 2020: Federal Agencies and Army Corps Still Waiting for Adequate Responses
- 2021: Major Developments – Historic Shipwreck and Extensive Deficiency List
Background – When is an Army Corps Permit Required?
The requirement to obtain federal authorization for a marina project such as the Summers End Group marina in Coral Harbor is triggered by two federal statutes.
First, in 1899 the US Congress enacted a law stating that construction in the navigable waters of the United States is illegal unless it has been authorized by the Department of the Army. This provision is known as “Section 10 of the 1899 Rivers and Harbors Act” and a marina clearly requires permitting under Section 10.
Second, the 1972 Clean Water Act gives the US Environmental Protection Agency (“EPA”) broad powers to regulate the discharge of pollutants into the waters of the US. Specifically, Section 404 of the Clean Water Act regulates the discharge of dredge or fill materials and prescribes criteria that must be met in order for this activity to be permitted. Since construction projects in navigable waters require Department of the Army permitting under Section 10, in most cases the Army Corps administers both the Section 10 permit process as well as the Section 404 Clean Water Act permit process under delegated authority from the EPA. However, although the EPA has delegated Section 404 permitting authority to the Army Corps, for certain activities in certain bodies of water the EPA retains ultimate approval power. This will later become important for the Summers End project.
The Army Corps of Engineers Review Process
The process by which the United States Army Corps of Engineers (“USACE”) determines whether or not to issue a permit involves a highly complex and consultative deliberation governed by multiple federal statutes and regulations. As stated previously, Department of the Army permits for private projects are typically issued pursuant to two federal authorities: Section 10 of the 1899 Rivers and Harbors Act, and Section 404 of the Clean Water Act. The review process for both of these authorities is very similar and is typically done as a single unified review.
Fundamentally, USACE cannot issue a permit unless the project is compliant with a long list of federal statutes. These statutes include:
- Federal Coastal Zone Management Act of 1972
- Section 401 of the Clean Water Act of 1972
- National Historic Preservation Act of 1966
- Endangered Species Act of 1973
- Fish & Wildlife Act of 1956
- Migratory Marine Game-Fish Act
- Magnuson–Stevens Fishery Conservation and Management Act of 1976
- Marine Mammal Protection Act of 1972
- Fish & Wildlife Coordination Act of 1934
- Clean Air Act of 1970
- Resource Conservation & Recovery Act of 1976
- Comprehensive Environmental Response Compensation and Liability (Superfund) Act of 1980
Since these statutes are administered by different federal agencies (e.g. EPA, FWS, NOAA) the role of the Corps, as lead agency in the review, is to coordinate with the other involved agencies to create a unified response to a permit application.
The process of permit acceptance, solicitation of public comments, review of comments, consultation with agencies, and final permit decision, is specified in the Code of Federal Regulation Section 325 for Department of the Army Permits. This section is written to comply with the National Environmental Policy Act (or NEPA) which provides the overall framework for environmental review of federal actions.
Next Page: SEG USACE History – 2014