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Under section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act

The U.S. Army Corps of Engineers understands that during a flood emergency and times of imminent danger landowners may decide to do what they determine is necessary to protect their property. Where possible, it is imperative for the public to contact the USACE North Dakota Regulatory Office (701) 255-0015 for work in waters of the U.S. associated with flood protection and repair work performed in waters of the U.S for flood damaged areas within the State of North Dakota and the Omaha District. A flood emergency does not remove the landowner's responsibility to obtain permits under Sections 10 and 404, if a permit is required. 

Under Section 10 of the Rivers and Harbors Act, the USACE regulates the construction of any structure in or over any navigable water of the U.S. 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. A list of navigable waters in the Omaha District can be found online    

Under Section 404 of the Clean Water Act, USACE regulates fill material placed below the Ordinary High Watermark (OHWM) within waters of the U.S. and may regulate the removal of fill material. The OHWM is the line on the shore/bank/waterway established by the fluctuations of water and indicated by physical characteristics. Fill placed in upland areas (areas above the OHWM) is not typically regulated under the Clean Water Act. It is the landowner’s responsibility to contact USACE to determine if a flood-related activity lies within the Corps’ regulatory jurisdiction.

The District Engineer for the Omaha District has developed a Regional General Permit 9601-07 (GP 9601-07), authorizing certain flood-related fill or excavation activities, other work associated with flood protection, and repair work for flood-damaged areas performed in waters of the U.S. within the State of North Dakota. 

Waters of the U.S. include, but are not limited to, rivers, lakes, ponds, creeks, gulches and wetland areas. This RGP may apply to localized or widespread flood events and includes, but is not limited to, the following activities:

  • Repair, construction and reconstruction of existing roads
  • Construction of new roads, if the previous road is damaged beyond repair
  • Temporary levee construction
  • Levee repair
  • Bridge embankment repair
  • Protection and/or repair of utility structures
  • Placement of suitable rock and/or dirt fill for bank stabilization
  • Construction of temporary drainage ditches to facilitate the removal of flood water, sheetwater, or excess water
  •  Protection and restoration of intake structures.

Fill and excavation impacts authorized by this RGP will be limited to the minimum necessary for the project.

Proposed wetland fill or drainage activities authorized by this permit may require mitigation. Mitigation plans will be developed by the applicant, approved by USACE, and coordinated with the applicable resource agencies on a case-by-case basis. In urgent situations, approval of mitigation plans by USACE may be subsequent to the approval of the requested work, since sufficient time may not be available to approve mitigation before the work must take place.

To request authorization of work under GP 9601-07, contact the North Dakota Regulatory office for a determination that the proposed work is necessitated by flood conditions and meets the GP-9601-07 criteria. 

Information required will be:

a.   Your name, address, and telephone number and the name, address and telephone number of the owner of the affected land.

b.   A written description of the proposed work including:

  • the purpose and need
  • type, composition, and quantity of material to be excavated or placed (including temporary material used for cofferdams, etc.)
  • length, width, and depth of fill area and/or excavation area
  • a discussion of the direct and indirect adverse environmental effects of the activity
  • location of disposal site for excavated material
  • type of equipment to be used
  • identification/delineation of wetlands
  • the receiving site for excess water (drainage projects)
  • any other pertinent, supporting data.

c.   A location map indicating the location of the proposed work and a legal description (section, township, range and county, and latitude and longitude).

d.   A set of 8.5 by 11-inch drawings showing the details of the proposed work (plan and cross sectional views showing elevations and dimensions).

e.   If applicable, a compensatory mitigation plan for proposed wetland fill or drainage activities.

f.    A written statement that you agree to abide by the terms and conditions of this permits.

g.   A written statement certifying that the authorized work has been completed in accordance with this permit must be submitted to the Corps following completion of the project. Photographs, taken from the same locations before the work is begun and after the work is completed, must be included.

The information submitted must clearly describe the project so that USACE can determine whether or not the work complies with the terms, conditions, and limitations of this RGP. The project may not proceed until notification approval has been received from USACE that the proposed work meets the RGP criteria.

EMERGENCY AUTHORIZATION PROCEDURES:  

The following are the procedures to process a request for an emergency authorization:

  1. Project proponents should e-mail or personally deliver to the North Dakota Regulatory Field Office information which details the proposed work, location map and a narrative description of what needs to be done, how soon, and how the situation occurred. 
  2. The North Dakota Regulatory Office will coordinate the emergency response with the Omaha District Regulatory Office, Northwestern Division Office, and other resources agencies.

If you have questions or would like assistance in determining if a permit is required for any flood-related activities, please contact the appropriate USACE Regulatory Office from the list of contacts, below.

CONTACTS: 

  • North Dakota Regulatory State Field Office (701) 255-0015
  • Omaha District, Regulatory Branch (402) 995-2451

404 ND North Dakota post-flood