A. Legal Authority 

• Section 10 of the Rivers and Harbor Act of 1899, 33 U.S.C. 403
• Section 404 of the Clean Water Act, as amended, 33 U.S.C. 1344
• Section 103 of the Marine Protection, Research and Sanctuaries Act , 33 U.S.C. 1413
• Title 33 CFR, Parts 320-330, Regulatory Programs of the Corps of Engineers

Information: http://www.usace.army.mil/CECW/Pages/reg_materials.aspx

B. Purpose

The Department of the Army (DA) Permit program was originally established to ensure that the navigational characteristics of coastal waters of the United States were not adversely affected by development. The jurisdiction of the permit program under the Army Corp of Engineers (ACOE) originally extended only to navigable waters. Activities that could interfere with navigation required a permit under the Rivers and Harbors Act. However, with passage of the amendments to the Clean Water Act in 1972, the authority of the ACOE was extended to include issuance of permits for discharge of dredge or fill material into “waters of the United States,” including wetlands, ponds, and any inland and coastal waters that affect commerce. DA permits are also required for construction of artificial islands, installations, and other devices on the seabed to the seaward limit of the outer continental shelf (33 CRF 320.2 (b)).

C. Applicability to Aquaculture

Navigable waters are defined as those waters that are subject to the ebb and flow of the tides and/or are presently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce. The ACOE can issue two kinds of permits; a general permit and an individual permit. General permits include nationwide and regional permits that pre-approve certain activities to streamline these actions. Individual permits, which are more likely for aquaculture actions, include standard permits and letters of permission. Both documents require submittal of a standard DA permit application form (ENG Form 4345).

Under Section 10 of the Rivers and Harbors Act, a DA permit is required for structures or work in navigable waters of the U.S. Structures and such work includes piers, pilings, boat docks, breakwaters, revetments, riprap, permanent moorings, power transmission lines, or any other obstacles or obstructions to navigation, and any dredging 27 or disposal of dredged material or other modification of a navigable water.

Under Section 404 of the Clean Water Act, a DA permit is required for the discharge of dredged or fill materials into waters of the United States. Waters of the United States includes all navigable waters, plus all other waters such as lakes, rivers, streams, mud flats, sand flats, wetlands, wet meadows, natural ponds, the use, degradation or destruction of which could affect commerce. This regulatory definition specifically includes any body of water from which fish or shellfish are or could be taken and sold.

Maintenance and repair of existing structures is, for the most part, exempt from the DA Permit requirements. Issuance of a DA Permit is based on a “public interest review” which evaluates the probable impacts of a project, including its cumulative impacts, and intended use. This decision process requires a balancing of the reasonable benefits which can be expected to accrue from an activity against its reasonably foreseeable detriments. The decision whether to authorize a project, and if so the under what conditions, will be determined by the outcome of this “general balancing process.”

D. Administering Agency

The U.S. Army Corps of Engineers is responsible for administering and granting DA Permits.

U.S. Army Corps of Engineers
Honolulu District, Regulatory Branch, Building 230
Fort Shafter, Hawaiʻi, 96858-5440
Phone: 808-438-9258
Web site: https://www.poh.usace.army.mil/Missions/Regulatory/Wetlands/

E. Information Requirements

The DA permit basically requires that the proposed work be described in sufficient detail so that its potential impact on the affected environment can be fully evaluated. The information required could be diverse as the ACOE’s evaluation extends well beyond the potential impact of the project on navigation and includes consideration of: conservation, economics, historic values, water quality, aesthetics, coastal zone management, recreation, water supply, general environmental concerns, and land use, energy needs, safety, food production, flood damage prevention, fish and wildlife values, and, in general, the needs and welfare of the people.

Both a complete narrative description and detailed plans and drawings are required. Strictly, preparation of an EA is not required with the application. In the case of actions with significant potential environmental effects, an EIS can be required.

F. Public Participation

A public notice soliciting comments on the permit application is issued within 15 days after the receipt of a complete application. The comment period on the application is 15 days to 30 days from the date the public notice is issued and the period can be extended an additional 30 days. Depending on the complexity of the proposal and the public comment received, a public hearing may be held, but is not required.

G. Process Time

The timing of the DA Permit process varies with the scale and complexity of the proposed action. If all information requirements have been met, the evaluation indicates manageable impacts, and there are no substantive comments to be considered, a DA Permit can be issued 60 days after the receipt of a complete application. If an action provokes public concerns and/or additional information is required (e.g., preparation of an EIS), issuance of a DA Permit can take one year or more.

For example, if the comment period is extended by 30 days, the district engineer will, absent other restraints, decide on the application within 90 days of receipt of a complete application. Certain other laws require procedures such as state or other federal agency certifications, public hearings, environmental impact statements, consultation, and special studies which may prevent district engineers from making a decision in 60 days.

H. Sequence of Filing

A DA permit will not be issued until all related permits, certifications, and authorizations required by the federal, state and county governments have been obtained. At the discretion of the ACOE, however, the DA permit can be processed and issued concurrently with other permits. Prior to issuing a DA permit, the ACOE must send the application to, and consult with, the local offices of other affected federal agencies if threatened, endangered or protected species or critical habitat are involved: 1) U.S. Fish and Wildlife Service, Department of the Interior ; and 2) National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce. The Advisory Council on Historic Preservation is involved if a site is listed, or eligible for listing, on the National Register of Historic Properties. If the project is located within the state’s coastal zone (see Section 4.2.9 on Coastal Zone Management), the ACOE must obtain a determination that the project will be consistent with the Hawaiʻi Coastal Zone Management Program. If discharges of effluent into waters of the state are involved, the ACOE must obtain a certification (a 401 Water Quality Certification) from the Hawaiʻi Department of Health (DOH) stating that the project is consistent with state water quality standards (Note: not required for offshore aquaculture projects).

I. Cost

The cost of preparing the application, project plans, an EA and if required an EIS, can be significant depending on the size of the project site, the complexity of the proposed action and the environmental conditions to be managed and mitigated. A permit filing fee of $100.00 is charged for commercial or industrial uses and a $10.00 filing fee is charged for non-commercial use. Payment of the fee will be required prior to issuance of the DA Permit.