The Rivers and Harbors Act expressly prohibits the obstruction or alteration of navigable waters of the U.S.. As such, any structures or activities (e.g., anchoring cables, aids to navigation) occurring in or affecting the navigable waters of the U.S., including the Territorial Seas and the Outer Continental Shelf (1) are subject to authorization by the Army Corps of Engineers (COE).
Lead Agency: Section 10 permits are the responsibility of the COE. Other agencies involved in reviewing applications for and ensuring compliance with §10 permits may include the FWS, NMFS, and the SHPO.
The COE can authorize activities by a standard individual permit, letter-of-permission, nationwide permit, or regional permit. Based on the level of impacts associated with a proposed project, the COE will make a determination on what type of permit is needed. For example, a PATON permit may be authorized by a nationwide permit if the navigation aids are approved by and installed in accordance with requirements of the U.S. Coast Guard (33 CFR § 330.5(a)(1)). However, if the COE can exercise its authority through mandatory FPA § 4(e) conditions to the license, it is possible that structures and activities that are part of a project authorized by a FERC license may not require a § 10 permit.(2)
Consultation: The Fish and Wildlife Coordination Act (16 USC § 2901 et seq) authorizes the USFWS to review and comment on the effects of fish and wildlife of activities proposed to be undertaken or permitted by the COE.(3) Therefore, if a project may affect threatened or endangered species (or their designated critical habitat), then the COE must consult with NMFS and FWS before making a permit decision. Additionally, permit applicants will be required to submit a Biological Evaluation describing the species in the area, the impact the project may have on the species or its critical habitat, and measures that can be taken to minimize impacts. Before issuing a decision on a Standard Individual Permit, the COE will provide a 15- to 30-day public notice period. Also, the COE must provide notice of and opportunity for public hearings before issuing a permit. The special policies, practices and procedures to be followed by the COE in review of applications for a Section 10 Permit is provided on the FWS website.
Process Time: Usually 60 to 120 days; but if an EIS is required the process time will increase.
Legal Authority: § 10 Rivers and Harbors Act (33 USC § 403); 33 CFR § 322, Permits for Structures or Work in or Affecting Navigable Waters of the United States.