Navigable Waterways Compliance Process
Navigable waterways are those waters of the U.S. that are subject to the ebb and flow of the tide shoreward to the mean high water mark, and that are presently used, have been used in the past, or may be susceptible to use for transport of interstate or foreign commerce. Mass transportation projects that affect navigable waterways are subject to permitting and review.
Section 9 & Section 10 Permits: The River and Harbor Act of 1899 (33 U.S.C. 401 et. seq.) requires that the Secretary of the Army issue permits for various activities:
Section 9 of the Act requires authorization from the US Army Corps of Engineers (USACE) prior to construction of a dam or dike across a navigable water of the U.S.
Section 10 of the Act requires authorization from USACE prior to construction of any structure over, excavation from, or disposal of materials into navigable waters. Structures or work outside the limits defined for navigable waters of the U.S. require a Section 10 permit if the structure or work affects the course, location, or condition of the water body.
The law applies to any dredging or disposal of dredged materials, excavation, filling, re-channelization, or any other modification of a navigable water of the U.S., and applies to all structures, from the smallest floating dock to the largest commercial undertaking. It further includes, without limitation, any wharf, dolphin, weir, boom breakwater, jetty, groin, bank protection (e.g. riprap, revetment, bulkhead), mooring structures such as pilings, aerial or subaqueous power transmission lines, intake or outfall pipes, permanently moored floating vessel, tunnel, artificial canal, boat ramp, aids to navigation, and any other permanent, or semi-permanent obstacle or obstruction.
Certain work performed, or structures constructed, in navigable waters could require permits pursuant to both Sections 9 and 10 of the Rivers and Harbors Act. A project involving dredging in navigable waters would require both a Section 10 and a Section 404 permit because Section 404 of the Clean Water Act pertains to "waters of the United States" which includes more than navigable waters.
The permit application must include a description of the type, composition, and quantity of the material to be dredged, the method of dredging, and the site and plans for disposal of the dredged material. This information should be included in the environmental document.
Coordination with US Fish and Wildlife Service: The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq) requires consultation with the US Fish and Wildlife Service (FWS) and the appropriate state wildlife agency when a project will impound, divert, channelize, or otherwise control or modify the waters of any stream or other body of water. Generally, if a permit is required under Sections 9 or 10 of the River and Harbor Act of 1899, or Sections 402 or 404 of the Clean Water Act, the consultation requirement will apply. Permit applications will be forwarded to the FWS which will review them according to their "Guidelines for the Review of Fish and Wildlife Aspects of Proposals in or Affecting Navigable Waterways," published in the Federal Register on December 1, 1975.
Consideration must be given to preventing damage or loss to wildlife and mitigating any effects caused by a federal project. The environmental document must include an evaluation of how the actions may affect fish and wildlife resources. The discussion should include measures to minimize harm, such as features to reduce turbidity during construction, stabilizing the shoreline with planting suitable for use by wildlife, or compensation for habitat that may be lost. The FWS issued a mitigation policy in the Federal Register on January 23, 1981 that can be consulted when planning mitigation measures. The results of the consultation should be included in the Final EIS or EA.
Federal Statutes and Guidance on Navigable Waterways
- The River and Harbor Act of 1899 (33 U.S.C. 401 et. seq.) - Requires the Secretary of the Army to issue permits for projects that affect navigable waterways, e.g. bridges, dams, or other structures.
- Fish and Wildlife Coordination Act (16 U.S.C. 661 et. seq.) - Requires consultation with the US Fish and Wildlife Service and the appropriate state wildlife agency when a project will impound, divert, channelize, or otherwise control or modify the waters of any stream or other body of water.
- Guidelines for the Review of Fish and Wildlife Aspects of Proposals in or Affecting Navigable Waterways - US Fish and Wildlife Service Guidance for Interpretation of (16 U.S.C. 661).
If a mass transportation project will directly affect the coastal zone of any state with an approved Coastal Zone Management (CZM) Program, the environmental document must show whether the project will be consistent with the CZM Plan. The Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq), as amended, established the voluntary program in which, of the 35 states with coastal zones, 28 states are currently participating. These states have Department of Commerce approved state plans and receive federal money and technical assistance to administer their programs.
The state agency managing the program, called the principal 306 agency, is usually the state Department of Natural Resources or equivalent agency. This agency should be consulted for procedures that are used to determine consistency with the CZM Plan and its opinion on whether the proposed project is consistent with the state's program. The environmental document should present the applicant's certification that the project is (or is not) consistent with the CZM program and the views of the state agency.
The Coastal Barrier Resources Act (16 U.S.C. 3501 et seq) designates a protected network of undeveloped coastal barriers located on the Atlantic and Gulf Coasts called the Coastal Barrier Resources System. Section 5 of this Act prohibits federal expenditures for construction of any facilities, structures, roads, bridges, airports, etc. within the System. Exceptions can be made for some activities such as the maintenance of existing channel improvements and related structures, and the maintenance, replacement, reconstruction, or repair (not expansion) of publicly-operated roads or facilities which are essential links in a larger network or system. Consultation with the US Department of the Interior is required. When a proposed project impacts a coastal barrier unit, the Draft Environmental Impact Statement (EIS) should:
- include a map showing the relationship of each alternative to the unit(s);
- identify direct and indirect impacts to the unit(s), qualifying and describing the impacts as appropriate;
- discuss the results of early coordination with the Fish and Wildlife Service, identifying any issues raised and how they were addressed;
- identify any alternative which (if selected) would require an exception under the Act.
Any issues identified or exceptions required for the preferred alternative should be resolved prior to its selection. This resolution should be documented in the final EIS.
Federal Statutes and Guidance on Coastal Zones
- Coastal Zone Management Act of 1972 (16 U.S.C 1451 et seq) - Established a voluntary program in which 28 states are currently participating
- Coastal Barrier Resources Act (16 U.S.C. 3501 et seq) - Designates a protected network of undeveloped coastal barriers located on the Atlantic and Gulf Coasts