Public Waters. The word "public" is an English word derived from the French word adjective "populis" meaning the people. Used as an adjective it is a word describing something, for example - water; to be of, relating to, or affecting all of the people, or the whole area of a nation, state, locality, community, etc. Accordingly, "public waters" may be thought of as those waters which are not only used by and enjoyed by one individual or concern, but also by neighbors, friends, communities, etc., or the public in general.

The Congress of the United States has enacted laws to protect preserve these public waters, and to ensure that our country's water resources are used in the best interests of its people. For the purposes of the Department of the Army regulatory functions, these public waters are termed "navigable waters of the United States" (the traditional navigable waters) and "waters of the United States" (those waters defined in Section 404 of the Clean Water Act (noted as 404 waters).

Corps of Engineers Involvement. The basis of the U.S. Army Corps of Engineers regulatory function over public waterways was formed in 1899 when Congress passed the Rivers and Harbors Act. Until 1968, the Rivers and Harbors Act of 1899 was administered to protect only navigation and the navigable capacity of this nation's waters. In 1968, in response to a growing national concern for environmental values, the policy for review of permit applications with respect to Sections 9 and 10 of the Rivers and Harbors Act was revised to include additional factors besides navigation. These additional factors included: fish and wildlife, conservation, pollution, aesthetics, ecology, and general public interest. This new type of review was identified as a "public interest review."

The Corps of Engineers regulatory functions was then expanded in 1972 when Congress passed the Federal Water Pollution Control Act Amendments of 1972, specifically Section 404 of the Act. The purpose of the Federal Water Pollution Control Act was to restore and maintain the chemicals, physical and biological integrity of this nation's waters. Section 402 of the Act established the National Pollutant Discharge Elimination System to regulate industrial and municipal source discharges of pollutants into the nation's waters. The NPDES permit program is administered by an appropriate state agency or the U.S. Environmental Protection Agency and should not be confused with the Corps of Engineers'Section 404 permit program. The Federal Water Pollution Control Act was further amended in 1977 and given the name of "The Clean Water Act." Section 404 of the Clean Water Act established a permit program to be administered by the Corps of Engineers to regulate the non-point source discharge of dredged or fill material into waters of the United States.

Sections 9 and 10. Section 9 of the Rivers and Harbors Act of 1899 requires a permit from the Corps of Engineers to construct any dam or dike in a "navigable water of the United States." Bridges and causeways constructed in "navigable waters of the United States" also require permits under Section 9, but the authority to issue those permits was transferred to the U.S. Coast Guard in 1966 when the U.S. Department of Transportation was created.

Section 10 of the Rivers and Harbors Act of 1899 (30 Stat. 1151; 33 U.S.C 403) prohibits the creation of any obstruction or alteration in a "navigable water of the United States" unless authorized by Congress or a Department of the Army permit.

Sections 9 and 10 of the Rivers and Harbors Act of 1899 extend only over "navigable waters of the United States." Structures or work outside the limits defined for navigable waters of the United States will require a Section 10 permit, if the structure or work affect the course, location, or condition of water body is such a manner as to impact on the navigable capacity of the water body. The law applies to all structures from the smallest recreational dock to the largest commercial dock, and includes any dredging or excavation, as well as bank protection.

Navigable Waters of the United States (Traditional). These waters are administratively defined to mean waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate or foreign commerce up to the head of navigation.

Section 404. Section 404 of the Clean Water Act (PL 92-500, 86 Stat. 816, 33 U.S.C. 1344) authorizes the Secretary of the Army, acting through the Chief of Engineers, to regulate the discharge of dredged or fill material into waters of the United States.

Initially, the Corps of Engineers limited its regulatory under Section 404 to "navigable waters of the United States," waters which are defined as those waters which are presently used, were used in the past, or could be used with reasonable improvements to transport interstate commerce (traditional). Limiting the Corps' authority under Section 404 to "navigable waters of the United States" was successfully challenged in the U.S. District Court for the District of Columbia. On March 27, 1975 the Court directed the Corps of Engineers to extend its responsibility to regulate the discharge of dredged or fill material under Section 404 to all "waters of the United States" (404) and to revise its regulations accordingly.

The Court's ruling increased the Corps' permit and regulatory jurisdiction under Section 404 dramatically, extending jurisdiction from "navigable waters of the United States" (traditional) to all "waters of the United States" (404).

Waters of the United States (404). For purposes of Section 404 of the Clean Water Act, these waters are administratively defined for inland fresh waters as follows:

(1) the traditional "navigable waters of the United States" including adjacent wetlands;
(2) all tributaries to "navigable waters of the United States" including adjacent wetlands (man-made drainage and irrigation ditches excavated on dry land are not considered "waters of the United States" under this definition);
(3) interstate waters and their tributaries, including adjacent wetlands;
(4) other waters of the United States, such as, isolated wetland and lakes, intermittent streams, prairie potholes, and other waters the degradation and destruction of which could affect interstate commerce.

The landward Section 404 regulatory limit for non-tidal waters in the absence of adjacent wetlands is the ordinary high water mark. Wetlands bordering contiguous or neighboring waters of the United States are considered "adjacent wetlands;" which are subject to regulations pursuant to Section 404.

"Wetlands are areas inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

Phased Program. The regulation and enforcement under Section 10 of the Rivers and Harbors Act of 1899 is essentially unchanged; however, the dramatic expansion of the regulatory jurisdiction areas under Section 404 of the Clean Water Act required the implementation of an effective transitional program. The Corps of Engineers chose to exert this jurisdiction in a three-phase program, adopted to permit reasonable and manageable implementation, ensuring that the water quality of public waters was protected from the irresponsible and unregulated discharge of dredged or fill material that could permanently destroy or alter the character of valuable resources. The last phase of the program became effective on July 1, 1977, when the Corps began exercising regulatory authority under Section 404 of the Clean Water Act to the fullest extent of the jurisdictional limits set forth in the Act.

Regional Permits. Included in the Corps' Programs for exercising Permit jurisdiction under both Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act is the regional permit program. Regional permits are issued for certain clearly described categories of structures, discharges, and/or work when those activities are substantially similar in nature, cause only minimal adverse environmental impact when performed separately, and cause only minimal adverse cumulative effect on the environment. Regional permits are for specific regions of the country. In the Rock Island District, regional permits have been issued authorizing work for projects such as small boat docks and small bank protection projects within specified areas. Individual activities included under those activities authorized by such regional permits do not require individual permit processing; therefore, approval may be issued in a short period of time. Specific information about regional permit activities may be obtained from the Rock Island District Office.

Nationwide Permits. Nationwide permits are Department of Army Authorizations that were incorporated in and issued by the Corps regulations. The purpose of these nationwide permits is to allow non-controversial, environmentally insignificant activities to continue with a minimum of governmental interference. The nationwide permits authorize certain structures, discharges, and/or work affecting "navigable waters of the United States" and "waters of the United States" throughout the nation. Individual activities must satisfy certain conditions in order to be considered as work authorized by a nationwide permit. Activities that satisfy the requirements and conditions of a nationwide permit do not require individual processing or submittal of a format application for permit. Specific information about nationwide permit activities may be obtained from the Rock Island District Office.

What to Do? Persons planning any type of work within "navigable waters of the United States" (traditional) or within wetlands adjacent to a "navigable waters of the United States" are advised to contact the Rock Island District Office of the Corps of Engineers before commencing any work. Upon request, application forms, instructions, and other assistance will be provided.

Persons planning any type of work involving the discharge of dredged or fill material into "waters of the United States" (404) are requested to submit a request for a Section 404 permit determination to the Rock Island District Office with a brief description of the project and location drawings. Examples of Section 404 activities would be site development fills, causeways or road fills, dams and dikes, artificial islands, property protection and/or reclamation devices such as riprap, seawalls, breakwaters and bulkheads, fills, beach protection, levees, sanitary landfills, and backfill required for the placement of structures such as sewage treatment facilities. Upon receipt of a request for determination, a determination of the Section 404 requirements will be made and the party notified of the actions necessary for compliance with Section 404 of the Clean Water Act.

Considerations. To make a formal application for a Section 10 or Section 404 permit, an application should be prepared according to instructions which will be furnished upon request.

In evaluating a permit application, the Corps of Engineers will thoroughly analyze the impacts of the proposed activity upon the
public's interest, the Corps will consider all factors of the proposed activity, including conservation, economics, aesthetics, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply and water quality, energy needs, safety, food production, and the needs and welfare of the people. A public notice is issued on most permit applications. Significant comments received from individuals, groups, or government agencies will be furnished to the applicant for his comment/rebuttal and/or resolution. Sometimes a public hearing will also be held before the District Engineer issues or denies a permit. Major controversial cases may be referred to higher headquarters for a decision. The decision to issue a permit will be based on the benefits, which may accrue from the proposal. This will be weighed against any foreseeable detriments, and a permit will be issued when its issuance is found not contrary to public interest.

You Can Help. The understanding and support of the American people is vital to the success of this program. In order to protect our nation's water resources and assure their use and enjoyment for future generations, we must all join this vital effort. We ask your help in "passing the world" to others concerning the permit requirements outlined on this website and solicit your views and comments on better ways of attaining the goals of this program. Your comments, questions and suggestions should be directed to the address below. Only through such cooperative efforts can we prevent violations from occurring and correct existing detrimental conditions.