With parts of the Midwest setting records for wet weather this month, many eyes have turned toward the shorelines of the Great Lakes, which are experiencing an extended period of near-record high water levels. High water has wreaked havoc on public and private shorelines alike, eroding beaches, damaging seawalls, and threatening buildings. For many property owners, installation or repair of infrastructure such as breakwaters or bulkheads may be an attractive solution to limit future losses. But owners and their contractors must be careful to comply with state and federal laws that require permits for construction that impacts a navigable waterway.

Some Points to Keep in Mind

Building near waterbodies presents both engineering and legal challenges. Owners and contractors must account for state and federal requirements when designing and installing infrastructure to cope with fluctuating water levels and increasingly severe flooding. In the short term, regulatory stumbles could significantly delay completion of an erosion control project. But in the long term, failing to obtain required permits or to adhere to the terms of those permits could subject an owner or their contractor to liability, and potentially enforcement action, under state or federal law.

Statutory Background

Section 404 of the federal Clean Water Act (CWA) requires permits for the “discharge of fill material into the navigable waters.” 33 U.S.C. § 1344(a). That permitting requirement potentially restricts a number of erosion-control activities, such as the construction of breakwaters, sea walls, and even the replenishment of beaches. In some cases, a certification from state agencies that the discharge will not violate applicable water quality standards may also be required, under CWA Section 401. 33 U.S.C. § 1341.

Potentially Applicable Permits

Property owners may take advantage of a number of general permits authorized by the Army Corps of Engineers, some available nationally and others only regionally. For example, Nationwide Permit No. 13 allows for the construction of up to 500 feet of bank stabilization, such as bulkheads, gabions, or riprap. Nationwide Permit No. 3 authorizes the maintenance of previously authorized structure or fill projects. Where a nationwide or regional permit applies, a property owner can avoid the expense and delay associated with obtaining an individual permit from the Army Corps.

However, although nationwide or regional permits may offer some comfort, owners and their contractors must be careful to ensure that their project falls within the activities specifically authorized by the permit. For example, while Nationwide Permit No. 3 allows maintenance of existing structures, repair must commence within two years of the damage occurring and the maintenance may not exceed the scope of the existing structure.

Further, regional offices of the Army Corps may revoke nationwide permits or limit their applicability. The Chicago District has specifically restricted the availability of both Nationwide Permit Nos. 3 & 13 for projects on Lake Michigan. Property owners and their contractors should also be aware that the legal landscape surrounding nationwide permits continues to evolve. Just last month, a federal court vacated the Army Corps’ Nationwide Permit No. 12, which authorized certain utility crossings of regulated waterways.