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Corps of Engineers provides permit information, procedures for winter storm damage repairs - In aftermath of Blizzard of 2013

Published Feb. 14, 2013

CONCORD, Mass. – The Blizzard of 2013 caused wind damage, flooding and coastal storm damage to residents, businesses, and communities within the New England states. It is anticipated that some owners of damaged property will want to conduct repair activities in the near future. This notice is to remind property owners of the U.S. Army Corps of Engineers permit requirements for repairs proposed within the boundaries of the New England District of the Corps of Engineers.

The Corps has Federal jurisdiction over activities that include dredging or construction in or over navigable waters of the U.S., certain excavation activities and the placement of dredged or fill material into waters of the U.S. (including wetlands), and work affecting the course, location, condition or capacity of such areas. Such activities may require a Department of the Army permit. Waters of the U.S. also include intermittent streams, natural drainage courses, and wetlands that meet applicable Federal criteria, regardless of their size.

In general, if an activity has been permitted and has sustained damage due to a storm, the permit holder is authorized to return the project to its pre-damaged, permitted state.

Two of the Corps’ main permitting authorities are Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Section 10 of the Rivers and Harbors Act authorizes the Corps to regulate structures and work in navigable waters of the U.S. Structures and work include: any wharf, dolphin, weir, boom, breakwater, jetty or groin; bank protection or stabilization activity (i.e. riprap, revetment, or bulkhead); permanent mooring structures, such as pilings; aerial or subaqueous power transmission lines; intake or outfall pipes; permanently moored floating vessels; tunnels and artificial canals; boat ramps; aids to navigation; any permanent or semi-permanent obstacle or obstruction; dredging or disposal of dredged material, excavation, and filling; other modifications affecting the course, location, condition or capacity of navigable waters of the U.S.

Section 404 of the Clean Water Act authorizes the Corps to regulate the discharge of dredged or fill material into all waters of the U.S., including wetlands. Discharge of fill material includes: placement of fill that is necessary to the construction of any structure or impoundment requiring rock, sand, dirt or other material for its construction; site-development fills for recreational, industrial, commercial, residential or other uses; causeways or road fills, dams and dikes; artificial islands; property protection and/or reclamation devices,
such as riprap, groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for structures,
such as sewage treatment facilities, intake and outfall pipes associated with power plants, and subaqueous utility lines; and artificial reefs.

Most other repair work in waters of the U. S. would likely qualify for authorization through one of the Corps’ state general permits. A general permit is an authorization that is issued on a regional basis for a category or categories of activities that are similar in nature and do not cause more than minimal individual and cumulative adverse environmental effects. General permits substantially reduce the time needed by the Corps to process applications, allowing adequate control of minor construction while avoiding the lengthier processing required to issue an Individual Permit. There is a general permit for each of the six New England states. Visit the website at https://nae.usace.army.mil/Missions/Regulatory/StateGeneralPermits.aspx.

If a person intends to undertake any repair work in waters of the U. S. under the authorization of a general permit, thoroughly review the terms and conditions of the general permit and note that some activities require written authorization prior to commencement of work. It is imperative that the conditions and the management practices be followed explicitly. If a person is uncertain that the activity proposed qualifies for a general permit the person should contact the Corps’ New England District Regulatory Division prior to the commencement of work. Also note that just because a condition cannot be met does not necessarily mean that the activity cannot be authorized; in those cases a formal application will have to be made to the Corps for authorization by an Individual Permit.

The general permits apply only to Department of the Army regulatory programs. Authorization by a Corps general permit does not obviate the need for state or local permits, or other federal permits as required by law. It is recommended that a person check with state and local governments in addition to any other federal agency that may have jurisdiction over a project.

In cases where proposed work does not qualify for a general permit, and the situation would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action is not undertaken within a time period less than the normal time needed to process a permit application under standard procedures, the District can process an application for a permit under emergency procedures. Contact the Corps to determine if an activity qualifies for the emergency procedures.

The Corps recommends retaining records of permits, photographs, drawings, surveys, etc., for the structures or fill being repaired, replaced or rehabilitated and/or any other documentation showing that the structure or fill was serviceable immediately prior to the storm damage that occurred, or at the time the work was done.

For additional information on Corps permit requirements, call the Corps Regulatory Division at (978) 318-8335 or (978) 318-8338 or visit the website at https://nae.usace.army.mil/Missions/Regulatory.aspx.

Tim Dugan

Release no. 2013-015