Corps of Engineers in the United States

Corps of Engineers (COE) in Environmental Law

An organization within the U.S. Army that deals with wetlands issues and wetlands permits under the Clean Water Act. The Corps of Engineers is a unique military organization. It designs and builds structures for the military during wartime, but it is also responsible for flood control, improvements of waterways, and some civil building as well.

In the area of environmental law, the Corps of Engineers determines where wetlands currently exist and is the primary permit authority for dredge and fill operations in wetlands areas. It is also responsible for the Marine Protection, Research, and Sanctuaries Act (commonly known as the Ocean Dumping Act).

Regulations for wetlands permits are issued by two authorities: the EPA and the COE. The Corps rules deal primarily with the process of issuing permits; the EPA sets the substantive requirements for obtaining one. Therefore, the Corps issues permits based on its interpretation of the EPA’s rules, which may lead to conflict.

To facilitate interaction between the two agencies, the EPA and the Corps have entered into a memorandum of agreement, which sets forth the basic ground rules. The Corps makes the initial determination concerning the existence of a wetlands area (a process known as a wetlands delineation). When a violation is suspected, it usually does initial investigation and determines whether a violation has occurred. It may issue orders to cease and desist actions taken without a permit, or it may take a violator to court.

The Environmental Protection Agency is not a passive partner in the wetlands protection, however. It reviews permit applications and provides comments to the Corps. In some cases, the EPA may choose to enforce when the law has been violated. It also has the right to veto a permit the Corps of Engineers has issued when it believes that (1) its regulations have not been followed or (2) resources will suffer adverse impacts after mitigation is completed. In such cases, the matter may be referred to the Council on Environmental Quality (CEQ) for assistance in resolving the matter. The secretary of the Army and administrator of the EPA will confer, but the final decision rests with the EPA. The veto power has been used fairly successfully by the EPA, but a permit applicant can still turn to the courts for a review of the veto.

The Corps of Engineers must also coordinate with a number of other agencies while doing its job, so it has agreements with the National Oceanic and Atmospheric Administration, the Coast Guard, the Departments of Commerce, Interior, Transportation, and Agriculture. (1)

Army Corps of Engineers

The Army Corps of Engineers is responsible for many of our nation’s large-scale engineering projects.

Most of Corps’ publications, regulations, etc. are available through the main ACOE Web site.

For questions about ACOE publications, call the main branch of the ACOE library in D.C. at 703-428-6740. For questions about ACOE regulations, call the Regulatory Office at 202-761-5903. For more numbers see ACOE’s Contact page.

Board of Contract Appeals: The Board’s opinions are searchable on Lexis from 1952 to 2000 (MILTRY;CORPS) and on Westlaw from 1953 to 2000 (FGC-ENGBCA). As of July 21, 2000 the Corps of Engineers Board of Contract Appeals was merged into the Armed Services Board of Contract Appeals (ASBCA). You can search the decisions of both boards together with other government contracting appeal boards on on Lexis(MILTRY;BOARDS) and Westlaw (FGC-BCA).

Nationwide Permit Program: ACOE issues “Nationwide Permits” under procedures described in 33 CFR Part 330. These “Permits” are really safe harbor procedures for doing certain activities (e.g, setting up road crossings, canals, etc.) without running afoul of ACOE’s environmental regulations.

The Permits are reissued every five years. Permits from 2007 and 2012 are available through ACOE’s Nationwide Permits page. All Permits may be found in back issues of the Federal Register (e.g., the 1996 Permits and related comments were published on December 13, 1996 (v.61, no.241, p.65874, although the section with the Permits and Conditions starts on page 65913)).

In early 2000, ACOE modified several of the 1996 Permits and Conditions and created a few new Permits. These changes were published in the Federal Register on March 9, 2000 (v.65, No.47, p.12818, although the section with the Permits and Conditions starts on page 12885).

Resources

Notes

Based on “Environment and the Law. A Dictionary”

See Also

Armed Services Board of Contract Appeals
Environmental Law
Military Materials
Science
Engineer
Water
Taking
Wetlands