DEPARTMENT OF THE ARMY
NEW ENGLAND DIVISION, CORPS OF ENGINEERS
696 VIRGINIA ROAD
CONCORD PARK
CONCORD, MA 07142-2651
Regulatory Branch
CENED-OD-R-31
Conservation Commissioners, Municipal Officials, and Citizens of New Hampshire Involved in Wetlands Regulation
Dear Sir or Madam:
We recently learned that there are a number of local Conservation Commissioners, municipal officials, and citizens throughout New Hampshire that may not be aware of the Federal role in regulating coastal development activities and filling of inland waters and wetlands. Developers, landowners, consultants, engineers, and contractors may have had municipalities review their projects involving work or filling in areas under Corps of Engineers' jurisdiction. However, many such developers and others may be unaware of the Federal laws applicable to their activities. Some of these individuals or entities have inadvertently violated Federal law when these violations may have been prevented if the local Conservation commissions or other municipal officials had informed the owners or developers of the basic Federal requirements earlier in the planning, design, and approval process.
In an effort to more effectively serve the public and to educate the municipalities' professional staff, as well as the individual Conservation Commission members and citizens involved in regulating wetlands development, this letter will briefly summarize Corps of Engineers' jurisdiction. It is strongly recommended that you make the information contained in this letter available to those you come in contact with that are contemplating work that may involve activities in Corps' jurisdiction. This will also assist those doing such work in getting their necessary permits early in the process. This should also reduce time consuming and expensive involvement in an enforcement action which can result in criminal and/or civil prosecution by the Federal government.
Let me briefly summarize our jurisdiction. Under section 10 of the Rivers and Harbors Act of 1899, a Corps of Engineers' permit is required for all work seaward of the mean high water line in navigable waters of the United States. In New Hampshire, for purposes of Section 10, navigable waters of the United States are those subject to the ebb and flow of the tide, the Merrimack River from the Mass-NH state line to Concord, Lake Umbagog within the state, the Connecticut River to Pittsburg, New Hampshire, as well as any other waters subject to use in interstate or foreign commerce. Permits are also required under Section 404 of the Clean Water Act for those activities involving the discharge of dredged or fill material in all waters of the United States including not only navigable waters but also all inland rivers, lakes, streams, and wetlands.
The term "wetlands", as used above, is defined to mean "…those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that 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."
The limit of wetlands regulated by the Corps of Engineers may be different from the wetlands regulated by the State of New Hampshire. The limits of Federally regulated wetlands are now determined in the field using the mandatory technical criteria for soils, hydrology, and vegetation established in the Federal wetland delineation manual. It is essential that the Federal wetlands be accurately delineated in the field and accepted by the Corps.
Even if a local municipality or the state determines an area is not a wetland under State of New Hampshire jurisdiction, or under local ordinance control, a permitted activity in the State of New Hampshire may well be in a wetland regulated by the Corps of Engineers. If such a wetland is filled without the required Federal permit, a violation of Federal law has occurred and must be resolved.
Authorization for any work within Corps jurisdiction must be applied for and obtained before such work can be legally undertaken. Even if a permit has been issued, you should be aware that Corps permits are a limited form of authorization containing a stated set of conditions which must also be complied with. Thus, before starting any work in waters of the United States, people doing such work should: (1) be certain a Corps of Engineers permit has been obtained or is not needed and (2) familiarize themselves and their contractors with all permit conditions. Performing any work not authorized by a Corps permit, or failing to comply with the conditions of a permit, may subject the developer, the landowner or other responsible party, including the contractor, to criminal and/or civil liability.
Violations of the Rivers and Harbors Act of 1899 are punishable by criminal fines of up to $2,500 per day of violation. Violations of the Clean Water Act are punishable by civil and/or criminal fines of up to $25,000 per day of violation (up to $50,000 per day for criminal fines) and possible imprisonment. In addition, the unauthorized work or fill is subject to complete removal and restoration.
Questions regarding the status of a particular permit application may be directed to our Massachusetts office toll free, 1-800-343-4789. Questions on the conditions of an issued permit should be directed to our Inspection Unit (use the toll-free number cited above).
It is important that Conservation Commissioners, citizens involved in regulating wetland development, and municipalities, professional staff, including municipal Conservation Agents, understand the scope of the Corps jurisdiction so that they may help educate the public about the requirements of Federal law. This will serve the public by helping to protect the Nation's water resources and avoiding costly and time consuming delays of on-going or proposed projects that may require Federal permits.
If you have any other questions, please direct them to Mr. David Killoy at 978-318-8490. Or use the toll-free number cited above.
Sincerely,
William F. Lawless; P.E.
Chief, Regulatory Division
Operations Directorate
Concord Mass. Office
696 Virginia Rd.
Concord MA 01742-2751
From Army Corps of Engineers
7/13/90
*Note:
Original letter dated July 13, 1990. Phone numbers were updated Dec. 2000. Letter was stated to be current and accurate at that Dec. 2000 time.