A Guide to the Rivers & Harbors Act Section 10 Permit Requirements, Process, and Compliance

The Rivers and Harbors Act Section 10 Permit plays a critical role in protecting the nation's navigable waters while facilitating responsible development projects. This comprehensive guide provides a deep dive into the intricacies of the Section 10 Permit process, from pre-application considerations and permit requirements to post-permit compliance obligations and enforcement. Readers will learn how to effectively navigate the permitting process, understand the key environmental resources protected by the permit, and leverage innovative technology solutions like Transect to streamline site selection and environmental due diligence. The guide also explores the importance of public participation and stakeholder engagement, as well as strategies for managing common challenges and pitfalls in the permit process. By the end of this guide, readers will be well-equipped to successfully obtain and maintain compliance with the Rivers and Harbors Act Section 10 Permit while promoting sustainable and responsible development practices.

GENERAL INFORMATION

RHA Section 10 Permit Key Details

Issuing Agency: U.S. Army Corps of Engineers (USACE) Year Established: 1899 Legal References: Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) Date Last Amended: 1970 (by the Refuse Act Permit Program) Permit Purpose: To regulate structures or work in, over, or under navigable waters of the United States

Rivers & Harbors Act Section 10 Permit Overview

The Rivers and Harbors Act of 1899 is a federal law that regulates activities affecting the navigability of waters in the United States. Section 10 of this Act, codified as 33 U.S.C. 403, requires a permit from the U.S. Army Corps of Engineers (USACE) for any work in, over, or under navigable waters of the United States. This includes the construction, excavation, or deposition of materials in these waters. The primary purpose of the Section 10 permit is to prevent obstructions to navigation and protect the quality of navigable waters.

The USACE is the primary agency responsible for administering the Section 10 permit program. The agency works in collaboration with other federal, state, and local agencies to ensure compliance with related environmental regulations, such as the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Clean Water Act (CWA).

The Rivers and Harbors Act was originally enacted in 1899 to address concerns about the impact of human activities on the navigability of waters in the United States. Over time, the scope of the Act has expanded to include environmental considerations. In 1970, the Refuse Act Permit Program was established under Section 13 of the Rivers and Harbors Act, which further strengthened the environmental protection aspects of the law.

Which Resources Are Regulated By RHA Section 10 Permit?

The Section 10 permit regulates activities affecting navigable waters of the United States. "Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce." This includes waters such as rivers, lakes, bays, and coastal areas that are used for commercial navigation, recreation, or other purposes.

The permit aims to protect these waters from obstructions to navigation, such as structures, excavation, or fill material that could impede the movement of vessels or alter the course, condition, or capacity of navigable waters. By regulating these activities, the Section 10 permit helps maintain the navigability and environmental quality of these vital water resources.

PROJECT APPLICABILITY & REQUIREMENTS

When Section 10 Permits Are Required

The Rivers and Harbors Act of 1899, particularly Section 10, regulates activities that may affect the navigable waters of the United States. This section requires a permit from the U.S. Army Corps of Engineers (USACE) for any work or structures that could obstruct or alter navigable waters.1

The following table outlines the types of activities, actions, and materials that typically require a Section 10 permit, along with the associated environmental considerations or potential impacts:

Activity/Action/MaterialEnvironmental Considerations/Potential Impacts
Dredging- Alteration of water depth and flow patterns- Disturbance of sediments and aquatic habitats- Impacts on water quality and turbidity
Filling- Loss of aquatic habitats- Changes in water flow and circulation patterns- Impacts on wetlands and other sensitive areas
Piers, docks, and wharves- Shading of aquatic habitats- Alteration of water flow patterns- Disturbance of sediments during construction
Bulkheads and seawalls- Alteration of shoreline and coastal processes- Loss of intertidal habitats- Changes in sediment transport and deposition
Overhead power lines- Potential for bird collisions and electrocution- Visual impacts on scenic resources
Pipes and cables- Disturbance of sediments during installation- Potential for leaks or spills of transported materials
Dams and dikes- Alteration of water flow and sediment transport- Impacts on fish migration and aquatic habitats- Changes in flood patterns and downstream environments

It is important to note that this list is not exhaustive, and the need for a Section 10 permit is determined on a case-by-case basis by the USACE.2

Section 10 Permit Exemptions

While the Rivers and Harbors Act Section 10 permit is required for many activities in navigable waters, there are certain exemptions to the permit requirements. These exemptions are limited in scope and apply only under specific conditions.3

The following activities are generally exempt from Section 10 permit requirements:

  1. Normal farming, silviculture, and ranching activities: These activities, such as plowing, seeding, cultivating, and harvesting, are exempt provided they do not involve the discharge of dredged or fill material into navigable waters.4

  2. Maintenance of currently serviceable structures: This exemption covers the repair, rehabilitation, or replacement of any previously authorized, currently serviceable structure or fill. The structure or fill must not have been put to uses differing from those specified or contemplated in the original permit or the most recently authorized modification.5

  3. Construction or maintenance of farm or stock ponds: The construction or maintenance of farm or stock ponds is exempt, provided the ponds are not fed by a navigable stream and do not involve the discharge of dredged or fill material into navigable waters.6

  4. Construction or maintenance of irrigation ditches: This exemption applies to the construction or maintenance of irrigation ditches, or the maintenance (but not construction) of drainage ditches, as long as these activities do not involve the discharge of dredged or fill material into navigable waters.7

To determine if a project qualifies for an exemption, it is essential to carefully review the specific conditions and limitations associated with each exemption.

PERMIT APPLICATION & PROCESS

RHA Section 10 Permit Permit Pre-Application Considerations & Planning

Diagram of RHA Section 10 Permit Permit Pre-Application Considerations & Planning
Diagram of RHA Section 10 Permit Permit Pre-Application Considerations & Planning

The RHA Section 10 Permit permitting process is a critical component of the overall project life cycle for developments that involve work in, over, or under navigable waters of the United States. The permit process typically begins in the early planning stages, where the project proponent determines the scope and location of the proposed work and identifies the necessary permits, including the RHA Section 10 Permit permit.

Pre-application consultation with the U.S. Army Corps of Engineers (USACE) is highly recommended to discuss the project, identify potential issues, and determine the required application materials. This consultation can help streamline the permit process and avoid delays later on.

Following pre-application consultation, the project proponent conducts necessary studies and assessments, such as environmental impact analyses, to support the permit application. The prepared application materials are then submitted to the USACE for review.

The USACE will initiate a public comment period and coordinate with other federal, state, and local agencies as needed. The project proponent should be prepared to respond to comments and provide additional information as requested.

Once the review process is complete, the USACE will issue a permit decision, which may include specific conditions or mitigation requirements. The project must be implemented in compliance with all permit conditions.

A typical project life cycle and RHA Section 10 Permit permit touchpoints might look like this:

  1. Project conception and planning (pre-application consultation)
  2. Design and engineering (studies and assessments)
  3. Permitting (application submission and review)
  4. Construction (permit compliance and implementation)
  5. Operation and maintenance (ongoing permit compliance)

By engaging with the RHA Section 10 Permit permit process early and proactively, project proponents can help ensure a smoother overall project delivery and avoid costly delays or redesigns.

RHA Section 10 Permit Application Requirements & Submission

A complete RHA Section 10 Permit permit application typically includes several key components that provide the U.S. Army Corps of Engineers (USACE) with the information necessary to evaluate the proposed project's potential impacts on navigable waters and the public interest.

Required application materials may include:

  1. Application Form: A completed Standard Form 4345, which collects basic information about the project proponent, the proposed work, and the location.

  2. Project Description: A detailed narrative describing the purpose, need, and scope of the proposed work, including construction methods, materials, and equipment.

  3. Drawings and Plans: Detailed engineering drawings, site plans, and maps that clearly depict the proposed work and its location in relation to navigable waters and other key features.

  4. Environmental Documentation: Depending on the project's potential impacts, an Environmental Assessment (EA) or Environmental Impact Statement (EIS) may be required to evaluate the effects on natural and cultural resources.

  5. Mitigation Plan: If the proposed work is expected to result in unavoidable impacts to navigable waters or related resources, a mitigation plan may be required to offset those impacts.

  6. Other Permits and Approvals: Evidence that the project proponent has obtained or applied for other necessary federal, state, or local permits and approvals.

These application materials aim to provide the USACE with a comprehensive understanding of the proposed project, its purpose and need, and its potential impacts on navigable waters and the public interest. By submitting a complete and well-documented application, project proponents can help facilitate a more efficient review process and increase the likelihood of timely permit issuance.

The RHA Section 10 Permit Review & Decision Process

Ideally, the RHA Section 10 Permit permit process should be initiated early in the project planning stage, well before the anticipated start of construction. Engaging with the U.S. Army Corps of Engineers (USACE) through pre-application consultation can help identify potential issues and requirements early on, reducing the risk of delays later in the process.

The key steps in the RHA Section 10 Permit permit review and decision process are:

  1. Pre-Application Consultation: The project proponent meets with USACE staff to discuss the proposed project, identify potential impacts and requirements, and determine the appropriate permit pathway (e.g., general permit, letter of permission, or individual permit).

  2. Application Submission: The project proponent submits a complete permit application, including all required forms, documentation, and plans.

  3. Public Notice: The USACE issues a public notice to solicit comments from the public, other federal agencies, and state and local governments. The comment period typically lasts 15-30 days.

  4. Agency Coordination: The USACE coordinates with other federal, state, and local agencies as needed to ensure compliance with all applicable laws and regulations, such as the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA).

  5. Permit Decision: Based on the application materials, public comments, and agency coordination, the USACE makes a permit decision. The decision may be to issue the permit, issue the permit with conditions, or deny the permit. The USACE will consider factors such as the project's purpose, the need for the work, the potential impacts on navigable waters and the public interest, and compliance with other applicable laws and regulations.

The timeline for the RHA Section 10 Permit permit process can vary depending on the complexity of the project, the level of public interest, and the coordination required with other agencies. Generally, the USACE aims to make a permit decision within 60-120 days of receiving a complete application, but complex projects or those requiring an EIS may take longer.

RHA Section 10 Permit Public Participation & Stakeholder Engagement

Public participation is an essential component of the RHA Section 10 Permit permitting process, as it allows interested parties to provide input on the proposed project and its potential impacts on navigable waters and the public interest.

The primary opportunity for public input occurs during the public comment period, which is initiated when the U.S. Army Corps of Engineers (USACE) issues a public notice of the permit application. The public notice is typically published in local newspapers, posted on the USACE website, and mailed directly to interested parties.

During the comment period, which usually lasts 15-30 days, any member of the public, as well as federal, state, and local agencies, may submit written comments on the proposed project. Comments may address topics such as:

  • The project's purpose and need
  • Potential impacts on navigation, the environment, public safety, or other public interest factors
  • Compliance with applicable laws and regulations
  • Proposed permit conditions or mitigation measures

The USACE is required to consider all substantive comments received during the public comment period. In some cases, the USACE may hold a public hearing to gather additional input, particularly if there is significant public interest or concern about the project.

After the close of the comment period, the USACE will review and respond to the comments received, and may request additional information or clarification from the project proponent. The USACE will then make a permit decision based on the application materials, public comments, and other relevant factors.

Public participation in the RHA Section 10 Permit permit process is important because it allows for a transparent and inclusive decision-making process, and helps ensure that the USACE considers a wide range of perspectives and concerns when evaluating the proposed project. By actively engaging in the public comment process, stakeholders can help shape the outcome of the permit decision and protect the public interest in the nation's navigable waters.

Common Challenges and Pitfalls in the RHA Section 10 Permit Permit Process

Project proponents may encounter several common challenges and pitfalls during the RHA Section 10 Permit permitting process, which can lead to delays, additional costs, or even permit denial. Some of these challenges include:

  1. Incomplete or inadequate application materials: Submitting an incomplete application or failing to provide sufficient detail in the project description, drawings, or environmental documentation can result in delays as the USACE requests additional information.

  2. Failure to identify all required permits: Projects that involve work in navigable waters may require multiple federal, state, and local permits in addition to the RHA Section 10 Permit permit. Failing to identify and obtain all necessary approvals can lead to project delays and legal issues.

  3. Inadequate stakeholder engagement: Failing to engage with the public, other federal agencies, and state and local governments early in the process can result in unexpected opposition or concerns during the public comment period, which may require additional time and resources to address.

  4. Underestimating environmental impacts: Failing to properly assess and mitigate the project's potential impacts on the environment, cultural resources, or public safety can lead to permit conditions or denial.

To avoid these challenges and increase the likelihood of a successful permit outcome, project proponents should:

  • Engage in pre-application consultation with the USACE to identify potential issues and requirements early on.
  • Prepare a complete and well-documented permit application, including detailed plans, environmental assessments, and mitigation proposals.
  • Identify and apply for all necessary federal, state, and local permits and approvals.
  • Proactively engage with stakeholders, including the public, other agencies, and local governments, to identify and address concerns.
  • Conduct thorough environmental and cultural resource studies to identify and mitigate potential impacts.
  • Allow sufficient time in the project schedule for the permit review process, including public comment and agency coordination.

By following these best practices and learning from the experiences of other projects, proponents can navigate the RHA Section 10 Permit permit process more effectively and efficiently, while ensuring compliance with all applicable laws and regulations.Italic

TECHNOLOGY SOLUTIONS FOR PERMIT COMPLIANCE

Leveraging Technology for Rivers & Harbors Act Section 10 Permit Compliance

Technology plays a crucial role in streamlining and enhancing compliance with the Rivers & Harbors Act Section 10 Permit. By leveraging data management, site assessment, and monitoring tools, developers and permit applicants can improve efficiency, accuracy, and transparency throughout the permit compliance process.

Common tools and platforms used in the industry include:

  • Geographic Information Systems (GIS) for mapping and spatial analysis
  • Remote sensing and satellite imagery for site assessment and monitoring
  • Environmental databases and software for data management and reporting
  • Online permit application and submission portals
  • Mobile apps for field data collection and real-time updates

These technologies offer numerous benefits, such as:

  • Automated data collection and analysis, reducing manual errors and saving time
  • Centralized data storage and access, facilitating collaboration and information sharing
  • Real-time monitoring and alerts, enabling proactive issue identification and resolution
  • Improved data visualization and reporting, enhancing communication with stakeholders
  • Increased transparency and accountability, supporting permit compliance and auditing
TechnologyBenefits
GISAccurate mapping, spatial analysis, and site selection
Remote sensingEfficient site assessment, monitoring, and change detection
Environmental databasesCentralized data management, reporting, and information sharing
Online permit portalsStreamlined application submission, tracking, and communication
Mobile appsReal-time field data collection, updates, and issue identification

By integrating these technologies into their Rivers & Harbors Act Section 10 Permit compliance strategies, developers and permit applicants can optimize their processes, reduce risks, and ensure ongoing compliance with permit requirements.

Transect: An Innovative Solution for Site Selection & Environmental Due Diligence

Transect is an all-in-one environmental due diligence solution that combines software knowledge with hands-on field experience to revolutionize site selection and permitting for industries such as solar, wind, renewable energy, and more. This innovative platform offers a range of features and benefits that help developers and permit applicants streamline their processes, reduce costs and delays, and ensure ongoing compliance with the Rivers & Harbors Act Section 10 Permit requirements.

Key features and benefits of Transect include:

  1. Swift site pinpointing and suitability analysis: Transect enables users to quickly identify and assess potential sites based on a wide range of environmental, social, and economic criteria, saving time and resources in the site selection process.

  2. Real-time data updates and critical issues identification: The platform provides real-time data updates and alerts, allowing users to proactively identify and address critical issues that may impact permit compliance or project feasibility.

  3. Versatility across multiple industries and project types: Transect is designed to support various industries and project types, making it a flexible and adaptable solution for diverse environmental due diligence needs.

  4. User-friendly interface and intuitive workflow: The platform features a user-friendly interface and intuitive workflow, enabling users to easily navigate and utilize its powerful tools and capabilities without extensive training or technical expertise.

  5. Efficiency gains and cost savings compared to traditional methods: By automating and streamlining key processes, Transect helps users achieve significant efficiency gains and cost savings compared to traditional site selection and permitting methods.

  6. Proactive risk mitigation and compliance assurance: Transect's real-time monitoring and alert features allow users to proactively mitigate risks and ensure ongoing compliance with the Rivers & Harbors Act Section 10 Permit requirements, reducing the likelihood of costly delays or legal issues.

By leveraging Transect's unique capabilities, developers and permit applicants can optimize their site selection and permitting processes, minimize costs and delays, and ensure a smooth and successful project execution while maintaining full compliance with the Rivers & Harbors Act Section 10 Permit requirements.

POST-PERMIT COMPLIANCE & MANAGEMENT

RHA Section 10 Permit Permit Conditions & Compliance Obligations

A RHA Section 10 Permit permit typically includes a variety of conditions and requirements designed to minimize adverse impacts on navigable waters and ensure compliance with applicable regulations. These conditions may include:

  1. Impact Minimization Measures: The permittee must implement specific measures to minimize the project's impact on navigation, such as maintaining adequate water depths, marking obstructions, and providing appropriate signage.8

  2. Mitigation Commitments: In some cases, the permittee may be required to undertake compensatory mitigation, such as the restoration or enhancement of nearby aquatic resources, to offset unavoidable impacts.

  3. Reporting Obligations: The permittee must submit regular reports to the U.S. Army Corps of Engineers (USACE) detailing the project's progress, any issues encountered, and compliance with permit conditions.9

Understanding and adhering to these conditions is crucial for maintaining compliance with the RHA Section 10 Permit permit. Failure to comply with permit conditions can result in enforcement actions, penalties, and potential permit revocation. Permittees should carefully review and understand all permit conditions, implement necessary measures to ensure compliance, and promptly address any issues that arise.10

RHA Section 10 Permit Monitoring, Reporting & Recordkeeping Requirements

RHA Section 10 Permit permits typically include ongoing monitoring, reporting, and recordkeeping requirements to ensure compliance and track the project's impact on navigable waters. These requirements may include:

  1. Monitoring: The permittee must conduct regular monitoring of the project site to assess compliance with permit conditions and identify any adverse impacts on navigation or aquatic resources.11

  2. Reporting: The permittee must submit periodic reports to the USACE, typically on an annual basis, detailing the project's status, monitoring results, and compliance with permit conditions.

  3. Recordkeeping: The permittee must maintain accurate records of all activities related to the permitted project, including monitoring data, correspondence with the USACE, and any other relevant documentation. These records must be retained for a specified period, typically a minimum of three years after the completion of the project.12

Accurate and timely reporting is essential for demonstrating compliance with the RHA Section 10 Permit permit and facilitating effective communication with the USACE.

Enforcement and Penalties for Non-Compliance with RHA Section 10 Permit

Non-compliance with RHA Section 10 Permit permit conditions can result in various enforcement actions and penalties, depending on the severity and duration of the violation. The USACE has the authority to:

  1. Issue Administrative Orders: The USACE may issue a cease and desist order, requiring the permittee to stop all activities related to the violation and take corrective action.13

  2. Assess Civil Penalties: The USACE may impose civil penalties of up to $55,800 per day for each violation of the RHA Section 10 Permit permit.14

  3. Initiate Criminal Charges: In cases of willful or negligent violations, the USACE may refer the matter to the U.S. Department of Justice for criminal prosecution, which can result in fines and imprisonment.15

  4. Revoke or Suspend the Permit: The USACE may revoke or suspend the RHA Section 10 Permit permit if the permittee fails to comply with permit conditions or if the project causes unacceptable adverse impacts on navigable waters.16

Common violations that may trigger enforcement actions include failing to obtain a required permit, deviating from approved plans, causing unauthorized discharges, and failing to implement required mitigation measures.17

To mitigate enforcement risks, permittees should promptly report any non-compliance issues to the USACE, take immediate corrective action, and maintain open communication with the permitting agency. Demonstrating a commitment to resolving violations and achieving compliance can help reduce the severity of enforcement actions.

ADDITIONAL RESOURCES & UPDATES

Recent Changes & Updates to Rivers & Harbors Act Section 10 Permit

In recent years, there have been no major regulatory changes or amendments that have significantly altered the scope or requirements of the Rivers & Harbors Act Section 10 Permit. However, it is essential for applicants to stay informed about any potential updates or modifications to the permit process by regularly checking the U.S. Army Corps of Engineers (USACE) website and consulting with the appropriate USACE district office.18

Additional Resources & Information

The following resources provide additional information and guidance related to the Rivers & Harbors Act Section 10 Permit:

REFERENCES

  1. Rivers and Harbors Act of 1899, 33 U.S.C. § 403.

  2. U.S. Army Corps of Engineers. (n.d.). Section 10 of the Rivers and Harbors Act https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Federal-Regulation/.

  3. 33 C.F.R. § 322.4 - Activities not requiring permits.

  4. 33 C.F.R. § 323.4(a)(1)(i) - Discharges not requiring permits.

  5. 33 C.F.R. § 323.4(a)(2) - Discharges not requiring permits.

  6. 33 C.F.R. § 323.4(a)(3) - Discharges not requiring permits.

  7. 33 C.F.R. § 323.4(a)(3) - Discharges not requiring permits.

  8. 33 C.F.R. § 325.4(a) (2021).

  9. 33 C.F.R. § 325.4(b) (2021).

  10. 33 C.F.R. § 325.4(a)(3) (2021).

  11. 33 C.F.R. § 325.4(b)(4) (2021).

  12. 33 C.F.R. § 326.3(c) (2021).

  13. 33 U.S.C. § 1319(d) (2021); 33 C.F.R. § 326.6(a)(1) (2021).

  14. 33 U.S.C. § 1319(c) (2021); 33 C.F.R. § 326.5 (2021).

  15. 33 C.F.R. § 325.7 (2021).

  16. U.S. Army Corps of Engineers. (n.d.). Regulatory Program and Permits https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/

  17. 33 U.S.C. § 403 https://www.law.cornell.edu/uscode/text/33/403

  18. U.S. Army Corps of Engineers. (n.d.). Regulatory Program and Permits https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/

  19. U.S. Army Corps of Engineers. (n.d.). Locations https://www.usace.army.mil/Locations/

  20. U.S. Army Corps of Engineers. (n.d.). Public Participation https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Public-Participation/

  21. Advisory Council on Historic Preservation. (n.d.). An Introduction to Section 106 https://www.achp.gov/protecting-historic-properties/section-106-process/introduction-section-106

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the RHA Section 10 Permit. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.