Post-Flood Permitting - MT

The U.S. Army Corps of Engineers (USACE) 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. When possible, it is imperative for the public to contact the USACE, Montana Regulatory Office at (406) 441-1375 or Montana.Reg@usace.army.mil before work in waters of the U.S. associated with flood protection and post-flood repair work within the State of Montana. A flood emergency does not remove the landowner's responsibility to obtain a Section 10 or Section 404 permit, if a permit is required.  

USACE Regulatory Program administers the permitting process for waters, or any work which would affect the course, location, condition, or capacity of those waters. Section 10 navigable waters in the state of Montana waters are the Kootenai River (from the Canadian border downstream to Jennings  Rapids near Jennings, MT), the Missouri River and its impoundments (from its headwaters near Three Forks to the ND state line), and the Yellowstone River (from Emigrant to the ND state line). Impoundments of these Montana rivers are also regulated by Section 10. Under Section 404 of the CWA, USACE regulates fill material placed below the Ordinary High Watermark (OHWM) within waters of the U.S., which can include, but is not limited to rivers, lakes, ponds, creeks, streams, and wetland areas. 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 and not within wetlands) is not regulated under the CWA. It is the landowner’s responsibility to contact USACE to determine if a flood-related activity lies within the USACE Regulatory jurisdiction.

USACE Regulatory Program administers the permitting process for under Section 404 of the Clean Water Act (CWA) (33 USC 1344) and Section 10 of the Rivers and Harbors Act (RHA) of 1899 (33 USC 403). Under Section 10 of RHA, a permit is required for construction, excavation, or deposition of materials in, over, or under navigable waters, or any work which would affect the course, location, condition, or capacity of those waters. Section 10 navigable waters in the state of Montana waters are the Kootenai River (from the Canadian border downstream to Jennings Rapids near Jennings, MT), the Missouri River and its impoundments (from its headwaters near Three Forks to the ND state line), and the Yellowstone River (from Emigrant to the ND state line). Impoundments of these Montana rivers are also regulated by Section 10. Under Section 404 of the CWA, USACE regulates fill material placed below the Ordinary High Watermark (OHWM) within waters of the U.S., which can include, but is not limited to rivers, lakes, ponds, creeks, streams, and wetland areas. 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 and not within wetlands) is not regulated under the CWA. It is the landowner’s responsibility to contact USACE to determine if a flood-related activity lies within the USACE Regulatory jurisdiction.

EMERGENCY AUTHORIZATION PROCEDURES & PERMIT OPTIONS 
Per 33 CFR 325.2(e)(4), Division engineers are authorized to approve special processing procedures in emergency situations.  An “emergency'” is a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures. In emergency situations, the district engineer will explain the circumstances and recommend special procedures to the division engineer who will instruct the district engineer as to further processing of the application. Even in an emergency situation, reasonable efforts will be made to receive comments from interested Federal, state, and local agencies and the affected public. Also, notice of any special procedures authorized and their rationale is to be appropriately published as soon as practicable.

Prior to use of emergency procedures, alternative means for authorizing the work will be considered by the district. If you believe your proposed activities may impact waters of the United States, you should contact USACE as soon as possible so that we can help determine what permitting is appropriate or if a permit is required.

ACTIVITIES WITHOUT A DISCHARGE: Certain activities do not result in a discharge of dredge or fill material. Clearing and removal of floating debris, such as tree trunks and limbs and trash, from around culverts, bridge crossings, boat docks or retaining walls, does not require a permit provided no material that is removed is placed permanently in a water of the U. S. 

404(f) EXEMPTIONS: Certain activities that result in a discharge of dredge or fill material may not require Section 404 authorization as they are considered exempt activities. Examples of activities that meet an exemption may include maintenance activities, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures, provided there is no change in the footprint, grades or character of the original features. Exemptions are also available for the construction or maintenance of farm or stock ponds and ditches and construction of temporary sedimentation basins. See 33 CFR 323.4 for more information.

PERMITTING: In many cases, responses to emergency situations that require a Corps permit may be authorized expeditiously through a variety of general permits, including Nationwide Permits (NWPs) and Regional General Permits (RGPs). In the case of emergency situations there are a variety of possible permitting options. Seven (7) possible permits that might be applicable in emergency situations are:
       1.    NWP 3 - Maintenance 
       2.    NWP 13 - Bank Stabilization
       3.    NWP 33 - Temporary Construction, Access, and Dewatering 
       4.    NWP 14 – Linear Transportation Projects
       5.    NWP 45 – Repair of Uplands Damaged by Discrete Events 
       6.    RGP-14-MT – Natural Disaster Mitigation & Emergency Related Activities in MT
       7.    Individual Permits – Standard Permits or Letters of Permission

NATIONWIDE PERMIT information is available at:  https://www.nwo.usace.army.mil/Missions/Regulatory-Program/Montana/Nationwide-Permits/ 

REGIONAL GENERAL PERMIT 14-MT (RGP 14-MT): The District Engineer for the Omaha District has developed a Regional General Permit 14-MT (RGP 14-MT), authorizing certain activities associated with an emergency situation and is restricted to those activities necessary during the emergency or for remediation of sites that were damaged as a result of natural disaster conditions (e.g., flooding, fire, mud/rockslide, drought) or in response to environmental hazards (e.g., wrecks, explosions, ruptures, spills of hazardous or other materials) performed in waters of the U.S. within the State of Montana. Additional information on RGP 14-MT is available on our website.

This RGP may apply to localized or widespread flood events and includes, but is not limited to, the following activities:

•     Repair and reconstruction of existing roads and transportation features
•     Temporary levee construction and repair
•     Bridge embankment repair
•     Protection and/or repair of utility structures
•     Debris, Sediment, or Vegetation Removal or Dredging
•     Bank protection/stabilization
•     Protection and restoration of intake structures

Fill 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 the USACE, and coordinated with the applicable resource agencies on a case-by-case basis. In urgent situations, approval of mitigation plans by the 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.

Notification requirements are described in Regional General Permit 14-MT and can be emailed to Montana.Reg@usace.army.mil or submitted in the Regulatory Request System (RRS) here: https://rrs.usace.army.mil/rrs.

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.

Information on obtaining a permit can be found here:  https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Obtain-a-Permit/

EMERGENCY AUTHORIZATION PROCEDURES: More extensive flood repair work which exceeds NWPs or the RGP 14-MT limits may be authorized under emergency authorization procedures when there is an unacceptable hazard to life, significant loss of property and/or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process an application under standard procedures.

1. Project proponents should e-mail or personally deliver to the Montana Regulatory 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 Montana 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. 

See the Montana Department of Natural Resources & Conservation – Stream Permitting website for details: https://dnrc.mt.gov/Licenses-and-Permits/Stream-Permitting/

CONTACTS:

Montana Regulatory State Program Office - (406) 441-1375 
- Montana.Reg@usace.army.mil 

Omaha District, Regulatory Branch - (402) 995-2451

RELATED LINKS:

• Regional General Permit 14 (RGP-14-MT): Natural Disaster Mitigation & Emergency-Related Activities in Montana 
• Nationwide Permit Information        
• Montana Joint Application and Instructions 
• FEMA Disaster Declarations