SEPA
United States
Environmental Protection
Agency
Office of Water
(WH-556F)
EPA842-B-92-007
December 1992
Guidance Manual for the Review of
Permitted and Civil Works Projects for the
Ocean Disposal of Dredged Material
Ocean Disposal
Statutes
Regulations
Federal Standard
Guidance Materials
Agency MQUs
Project Review
Interagency
Coordination
Permit Procedures
Civil Works Policies
Technical Evaluations.
Waiver of Criteria
Permit/Project
Enforcement
Reference Materials
U.S. Environmental Protection Agency
Printed on Recycled Paper
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DISCLAIMER
Mention of trade names or commercial products does
not constitute endorsement or recommendation for use.
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PREFACE
This manual was prepared for the Oceans and Coastal Protection Division, U.S. Environmental
Protection Agency under Contract No. 68-C8-0105, Work Assignment No. 4-112. The manual
provides procedural and technical guidance to EPA Regional Staff hi their independent review of
proposals for disposing of dredged material hi the ocean waters of the United States.
The manual was prepared by Battelle Ocean Sciences and Science Applications International
Corporation. Dr. Carlton Hunt of Battelle Ocean Sciences served as Deputy Program Manager.
Mr. Kurt Buchholz of Battelle Ocean Sciences served as Work Assignment Leader and prepared the
guidance on technical evaluation of proposed disposal actions. Subcontractor staff included Dr.
Robert Kelly and Ms. Regina RvVway of Science Application International Corporation. The EPA
Work Assignment Manager was Mr. Thomas Chase.
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TABLE OF CONTENTS
A
1.0 INTRODUCTION M
• 1.1 Purpose and Scope of the Manual 1_1
1.2 Organization of Manual 1_2
1.3 Organizational Structure of EPA . . '.'.'.'.'.'.'.'.'.'.'.'. 1-4
1.4 Organizational Structure of the USAGE '..'.'.'.'.'.'.'.'.'. 1-5
1.5 Regulatory Framework of the Dredged Material Ocean Disposal Program ..... 1-11
1.5.1 Overview of Statutes 1_U
1.5.2 Overview of Regulations . '.'.'.'.'.'.'.':'.'.'. 1-16
1.5.3 Other Dredged Material Ocean Dumping Guidance 1-22
2.0 USAGE PROCEDURES FOR PERMITS AND CIVIL WORKS PROJECTS 2-1
2.1 USAGE NEPA Regulations 2 1
2.2 USAGE Permits . . . . . 2-8
2.2.1 Permitting Process * 2-8
2.2.2 EPA Coordination and Review under the Permit Program 2-18
2.3 Planning and Implementation of Civil Works Projects 2-21
2.3.1 Individually Authorized Projects 2-23
2.3.2 Continuing Authorities Program 2-36
2.3.3 EPA Coordination Review for Civil Works Projects 2-36
2.4. USAGE O&M Activities .".".'.'.'.'.'.'.'."."* 2-39
2.4.1 EPA Coordination Opportunities 2-40
2.4.2 Funding 2-4\
2.5 USAGE Procedural Difference Between Civil Works Projects and Permits 2-42
2.6 EPA/USACE Coordination Guidance 2-42
2.6.1 Communication Guidelines 2-43
2.6.2 Communication Mechanisms 2-44
3.0 TECHNICAL EVALUATIONS OF PROPOSED DISPOSAL ACTIONS 3-1
3.1 Federal Regulation and Guidance 3_1
3.2 Regional Guidance • 3.4
3.3 Green Book Tiered-Testing Procedure '. . . . . '.'.'.' 3.5
3.4 EPA Evaluation of Tier I - IV Data . . 311
3.4.1 Tier I .'.'.'.'.'.'.'.".'.'.".'.' 3-12
3.4.2 Tier H a"n
3.4.3 Tier m 3"Jf
3.4.4 Tier IV , '.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'. 3-16
o 3.5 Compliance Determination of Subparts B, C, D, and E of 40 CFR 227 .... . . . 3-1?
3.5.1 Subpart B — Environmental Impact 3_lg
3.5.2 Subpart C — Need for Ocean Dumping ' 3.20
3.5.3 Subpart D — Impact of the Proposed Dumping on Esthetic,
Recreational, and Economic Values . 3_2i
3.5.4 Subpart E — Impact to the Proposed Dumping on Other
Uses of the Ocean 3_2i
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TABLE OF CONTENTS
(Continued)
3.6 Evaluation of Dredged Material Proposed for Disposal at
USACE-Selected ODMDSs ............ ...................... 3-22
3.7 Sampling ............................................. 3-23
3.8 Methods .............................................. 3-23
3.9 Necessary Hardware and Skills . . .............................. 3-26
3.10 Documentation .......................................... 3-26
4.0 WAIVER OF CRITERIA ....... . .............................. 4-1
4.1 Legislative History ..... , ................................. 4-2
'4.2 Federal Regulations ....................................... 4-4
4.2.1 USACER°eulations for Permits and Civil Works Projects .......... 4-4
4.2.2 EPA Regulations .................................... 4-6
4.3 Guidance ............................................. 4-6
5.0 ENFORCEMENT ACTIVITIES AND CIVIL PENALTY ASSESSMENT ....... 5-1
5.1 Statutory Framework .................. .................. : . 5-1
5.2 Current Enforcement Activities ................................ 5-2
5.2.1 USAGE Regulations .................................. 5-2
5.2.2 USAGE Enforcement Activities ........................... 5-4
5.3 Guidelines to Increase EPA Participation in Enforcement ............... 5-6
6.0 REFERENCES .............................................. 6-1
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APPENDICES
Appendix A. EPA Memorandum Regarding the Disposal of Dredged Material in the Territorial Sea
Appendix B. Examples of USAGE Regulatory Guidance Letters
Appendix C. USAGE Permit Regulations: 33 CFR 320, 324-326
Appendix D. USAGE O&M Regulations: 33 CFR 335-337
Appendix E. Permit Application Form
Appendix F. Example of Public Notice for a Permit
Appendix G. Special Permit Conditions
Appendix H. Example of a USAGE Permit Evaluation and Decision Document and USAGE Permit
Appendix I. Example of Public Notice for a Civil Works Project
Appendix J. Example of Public Notice for an O&M Activity
Appendix K. Glossary
Appendix L. List of Common USAGE Abbreviations and Acronyms
Appendix M. Presidential Memorandum Relating to Water Resources Planning
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LIST OF TABLES
1-1 Statutes and Executive Orders Potentially Applicable to Proposed Discharge of
Dredged Material in Ocean Waters 1-17
2-1 Information Required for Public Notices for USAGE Permits under MPRSA 2-13
2-2 Continuing Authority Projects 2-22
2-3 Reconnaissance Report Content 2-27
2-4 Feasibility Report Content 2-29
2-5 Checklist for Public Notice Information for Civil Works Projects under MPRSA 2-35
3-1 Subparts and Sections of 40 CFR Part 227 Applicable to
Ocean Disposal of Dredged Material 3-2
3-2 Sample-Collection Checklist for Dredged Material Evaluations 3-24
3-3 EPA Evaluator Worksheet for Tier I Data 3-28
3-4 EPA Evaluator Worksheet for Tier H Marine WQC
Compliance and Water-Column Toxicity Data 3-30
3-5 EPA Evaluator Worksheet for Tier n Theoretical [Benthic]
Bioaccumulation Potential (TBP) Data 3-32
3-6 EPA Evaluator Worksheet for Tier m Water-Column Toxicity Data 3-33
3-7 EPA Evaluator Worksheet for Tier m Benthic Toxicity Data 3-35
3-8 EPA Evaluator Worksheet for Tier m Benthic Bioaccumulation Data 3-37
3-9 EPA Evaluator Worksheet for Determining Sampling-Plan Adequacy . . 3-39
3-10 EPA Evaluator Worksheet for Verifying QA Components of
Dredged Material Evaluations 3-40
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LIST OF FIGURES
1-1 EPA Regional Boundaries ...... , ,
................................ l-o
1-2 USAGE Division/District Boundaries i o
" ' ........ r ............. ........ l-o
1-3 Geographic Jurisdictions of the MPRSA and CWA ............
1-4 Summary of Current EPA and USAGE Guidance Related to the
Ocean Disposal of Dredged Material
1_12
2-1 USAGE NEPA Procedures ............................. 2_3
2-2 USAGE Permit Application/Evaluation Procedures .................. 2-9
2-3 Procedures for EPA Review of Proposed Ocean Disposal of
Dredged Material ....................... 2 15
2-4 USAGE Civil Works Project Planning Process ......................... 2-24
3-1 Overview of the Tiered-Testing Procedure for Evaluating Potential
Environmental Impact of Dredged Material Proposed for Ocean Disposal ......... 3-6
3-2 Tiered-Testing Procedure for Evaluating Potential Water-Column Impact of
Dredged Material Proposed for Ocean Disposal ................... 3.7
3-3 Tiered-Testing Procedure for Evaluating Potential Benthic Impact of
Dredged Material Proposed for Ocean Disposal ................... 3_g
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Section 1
INTRODUCTION
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1.0 INTRODUCTION
1.1 Purpose and Scope of the Manual
The regulation of dredged material disposal within waters of the United States and ocean waters is the
shared responsibility of the Environmental Protection Agency (EPA) and the United States Army
Corps of Engineers (USAGE). Two statutes principally govern dredged material disposal hi United
States waters: the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA) (Public Law
92-532), also called the Ocean Dumping Act, and the Federal Water Pollution Control Act Amend-
ments of 1972 (Public Law 92-500), also called the Clean Water Act (CWA). This document offers
procedural and technical guidance to EPA Regional staff hi their independent review of proposals for
disposing of dredged material in ocean waters under the MPRSA. Responsibilities of the EPA and
the USAGE under related programs and statutes are briefly described to explain the statutory and
programmatic relationship between the two agencies hi regulating ocean disposal practices.
The responsibility for reviewing proposals for dredged material disposal hi ocean waters rests with the
EPA Regions and the USAGE Districts. There is a strong need for early coordination between
Regions and Districts to discover issues that may be raised during EPA's independent evaluation
under MPRSA. Nationally, EPA Region reviews should be consistent; this will build stronger EPA-
USACE relationships and ensure more efficient processing of permits and projects as each agency
becomes familiar with the other's expectations regarding data, information, management, and
enforcement.
Ocean disposal activities under the MPRSA are discussed below in terms of three USAGE programs:
the regulatory program, the planning program, and the operation and maintenance (O&M) program.
The regulatory program implements the processing of permits from private individuals and Federal,
State, and local agencies. The planning and O&M programs implements Civil Works projects (also
called Federal projects) carried out by the USAGE and a local sponsor. The planning program
includes the study and design of proposed Civil Works projects; the O&M program includes the day-
to-day management, repair, and rehabilitation of existing Congressionally authorized USAGE
projects. Completed USAGE projects are operated and maintained by either a local sponsor or the
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USAGE, depending on the project authorization and the Local Cooperation Agreement between a
sponsor and the USAGE.
To assist EPA Regional staff in reviewing the wide range of proposals that can be encountered, this
document provides background information and guidance on the following specific topics.
• The USAGE process for the evaluation of MPRSA Section 103 permit applications, Civil
Works projects, and O&M activities
• Key decisions in the planning process about permit applications, projects, and O&M
activities related to ocean disposal
• USAGE decisionmakers
• Documentation prepared by the USAGE
• Points in the planning processes when EPA coordination would be beneficial
EPA and the USAGE have issued other guidance manuals relating to the ocean disposal program for
dredged material. Several of these major documents are listed in Section 1.4.3 (see page 1-21).
1.2 Organization of Manual
This manual provides information designed to improve EPA/USAGE coordination of ocean disposal
proposals and activities. Although the primary audience of this document is EPA Regional Ocean
Dumping Coordinators, many other parties, including EPA National Environmental Policy Act
(NEPA) Coordinators, permittees, and local sponsors will find this background information useful.
The first two sections provide general information about EPA and the USAGE and their decision-
making processes for proposed ocean disposal actions. Readers who are familiar with the USAGE
and its decisionmaking processes may wish to proceed directly to Section 3.0. Section 3.0 addresses
EPA's review of proposed ocean disposal actions. The last two sections contain specific guidance on
waivers and enforcement.
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The remainder of Section 1.0, Introduction, presents background information on the statutory and
regulatory framework governing the ocean disposal of dredged material. General descriptions of
EPA, the USAGE, and their organizational components are provided to explain the location of
program responsibilities within the organization. The section concludes with a summary of current
USAGE and EPA regulatory and policy guidance related to the ocean disposal program for dredged
material.
Section 2.0, USAGE Procedures for Permits and Civil Works Projects, explains the planning process
for proposed permits, Civil Works projects, and O&M activities. The section identifies (1) points in
the planning process for EPA interaction with the USAGE, (2) documentation prepared at each stage
hi the planning process, and ^3) fe-.Jance hi terms of EPA/USAGE coordination. After discussions of
each program, the difference between permitted activities and Civil Works projects is noted. The
section concludes with a list of tools for improving EPA/USAGE coordination and communication.
Section 3.0, Technical Evaluation of Proposed Disposal Actions, provides technical guidance for
reviewing and conducting an independent evaluation of a proposed ocean disposal activity. This
discussion references the criteria for dredged material evaluations in Chapter 40, Part 227, of the
Code of Federal Regulations (CFR) and guidance found in the EPA/USAGE manual, Evaluation of
Dredged Material Proposed for Ocean Disposal—Testing Manual (EPA/USACE 1991).
Section 4.0, Waiver of Criteria, first presents background information on the waiver provision's
legislative history and regulatory interpretation. The concluding subsection contains guidance related
to waiver requests. It should be noted that the decision to approve or deny such a waiver request lies
with the EPA Administrator, rather than with the Regions.
Finally, Section 5.0, on Enforcement Activities and Civil Penalty Assessment, begins with a brief
description of the statutory and penalty provisions relating to enforcement activities for ocean disposal
of dredged material. Next, the section addresses the enforcement activities undertaken by the USAGE
under 33 CFR 326. A final subsection provides guidance on EPA enforcement opportunities and
options for increasing the Agency's participation in the enforcement of Section 103 permits.
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1.3 Organizational Structure of EPA
EPA has been reviewing dredged material ocean disposal activities since the passage of MPRSA hi
1972. The primary responsibility for reviewing ocean disposal permit decisions lies with the Regions.
The designation of ocean disposal sites was delegated to the seven coastal Regions hi 1986. EPA's
organizational components, with regard to dredged material and ocean disposal site management, are
divided between EPA Headquarters and Regions.
Headquarters
EPA Headquarters, in WashLuj- >n, DC, supports the Regions through the development of nations
ocean disposal policies, regulations, and technical guidance. The Ocean and Coastal Protection
Division (OCPD) in the Office of Wetlands, Oceans, and Watersheds (Office of Water) manages the
ocean disposal program. Five other main offices within EPA Headquarters also participate in the
ocean disposal program: the Office of General Counsel, the Office of Research and Development, the
Office of Enforcement, the Office of International Activities, and the Office of Science and Technolo-
gy (also in the Office of Water). The Office of General Counsel provides legal counsel on regulations
and legal issues. The Office of Research and Development develops, experiments, and refines testing
protocols used to evaluate the effects of ocean dumping and supports related research activities. The
Office of Enforcement leads enforcement actions for the Agency. The Office of International
Activities provides liaison and assistance on international matters related to dumping, including the
London Dumping Convention (LDC).1 The Office of Science and Technology supports the ocean
dumping program through the development of the technical guidance, such as the Evaluation of
Dredged Material Proposed for Ocean Dumping ~ Testing Manual and the promulgation of water and
sediment quality criteria.
'Official title: Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter
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Regions
Of the ten EPA Regions, seven Regions contain coastal States and regulate ocean dumping activities
(see Figure 1-1). Regions contain multiple States and are the rough equivalent in terms of size to
USAGE Divisions; however, the boundaries of EPA Regions and USAGE Divisions are not the same.
When coordinating with the USAGE, EPA Regional representatives must coordinate with USAGE
Districts, a smaller geographic unit than a Division. Thus, EPA Regions often must establish a
cooperative relationship with more than one District. The EPA Regional Ocean Dumping Coordina-
tor acts as the lead coordinator for the EPA Region. The Coordinator is supported by their Office of
Regional Counsel when legal questions or actions arise.
1.4 Organizational Structure of the USAGE
The USAGE has regulated activities in the Nation's 25,000 miles of waterways since 1890. Until the
1960s, the primary mandate of the USAGE Civil Works program was to protect navigation. More
recent environmental legislation, growing public concern about contaminated sediments, and court
decisions have broadened the original mandate of the USAGE to include the protection of natural
resources as well. The daily responsibility for managing permits and Civil Works projects has been
delegated from USAGE Headquarters to their Divisions and Districts (field offices).
As a major branch of the United States Army, the USAGE has both a military mission to provide
engineering services to the Army and a civil mission to develop and manage the Nation's water
resources. The primary levels of organization in the USAGE are the Assistant Secretary of the Army
(Civil Works) [ASA(CW)], the national Headquarters in Washington, D.C., the regional Divisions,
and the local Districts. The majority of responsibUity for managing day-to-day operations of the Civil
Works program lies in the District, whereas higher echelons of the USAGE provide program and
policy oversight, direction, and management.
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Assistant Secretary of the Armv (Civil Works!
The ASA(CW) is a civilian appointed by the President to lead the USAGE Civil Works program.
This responsibility requires working with Congress on the annual legislative program and Civil Works
budget, both of which deal with requests for selected studies and projects. In addition, the ASA(CW)
provides policy directions and guidance on specific studies, projects, and programs.
Headquarters
Headquarters is commanded by the Chief of Engineers. For Civil Works, the Chief of Engineers
reports to the Assistant Secrciary for Civil Works and is assisted by the Director of Civil Works. In
terms of program responsibilities, Headquarters provides guidance and ensures the implementation of
established policies in all phases of project development. Headquarters also works with other
agencies and organizations to support the Civil Works program.
Divisions and Districts
Divisions and Districts have jurisdiction over specific geographic areas usually defined by watershed
boundaries; there are 11 Divisions and 36 Districts that carry out USAGE field operations. They are
led by Division Engineers (Division Commanders) and District Engineers (District Commanders),
respectively, who are senior military officers. In most parts of the country, the Divisions are divided
into Districts; however, one Division, the New England Division, is small and not divided further
(see Figure 1-2)1. The Districts are the foundation of the USAGE Civil Works program. They
manage all day-to-day operations of the USAGE and work with other project sponsors, Federal and
State agencies, and all interested members of the public. They have the authority to conduct the
following tasks.
'This document is written as though all Divisions contain Districts. Certain process modifications are
necessary to accommodate the unique organization of this Division without a District. Divisions
review and approve major plans and programs of the Districts, implement plans and policies of the
Chief, and review and control District operations.
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• Prepare water resource studies in response to congressional resolutions
• Prepare engineering design studies and O&M studies
• Construct Civil Works projects
• Operate and maintain major water resource projects, including dredging projects,
regardless of funding source (USAGE or private)
• Acquire, manage, and dispose of real estate related to civil and military projects
With regard to MPRSA and/or CWA permits, the District Engineer has been delegated the authority
to the following.
• Issue or deny individual permits and general permits (33 CFR 325.8)
• Add, modify, or deny special conditions in permits (33 CFR 325.4 and 325.8)
• Modify, suspend, or revoke permits (33 CFR 325.7 and 325.8)
• Issue alternate types of permits, such as letters of permission and general Regional
permits (33 CFR 325.2)
• Approve special processing procedures in emergency situations (33 CFR 325.2)
Waterways Experiment Station
The USAGE also operates laboratories at the Waterways Experiment Station in Vicksburg, Mississip-
pi, that conduct research and development projects supporting the USAGE'S mission. The laborato-
ries have specialists in the fields of coastal engineering and near-shore oceanography, hydraulics, soil
mechanics, concrete, engineering geology, rock mechanics, and environmental relationships, among
others. In addition to research, the laboratories provide specialized consulting services and training in
coastal engineering and conduct modeling of specialized field sites. The station consists of six
individual laboratories: the Information Technology Laboratory, the Hydraulics Laboratory, the
Geotechnical Laboratory, the Structures Laboratory, the Environmental Laboratory, and the Coastal
Engineering Laboratory. Of these, the Environmental Laboratory, the Hydraulics Laboratory, and
the Coastal Engineering Laboratory perform research on dredged material and its disposal.
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USAGE Programs and Program Contacts
When coordinating with the USAGE, it is important for EPA personnel to work with the most
appropriate USAGE component. Each program is managed by a separate office within USAGE
Headquarters, Divisions, and Districts. In Headquarters, the appropriate offices are the Regulatory
Branch within the Operations, Construction, and Readiness Division for permitting activities; the
Navigation/Dredging Branch within the same Division for O&M activities; and the Environmental
Policy Branch in the Policy and Planning Division for proposed USAGE projects. There are usually
similar offices for each program area in every Division and District.
Any question or concern relate- .: the planning pro ?ss for current and future actions should be
directed to one of these offices, depending on the type of proposed action. Technical or environmen-
tal concerns should be directed to one of the staff members assigned to act as USAGE Ocean
Dumping Coordinators. They are responsible for managing issues related to the testing of dredged
material as well as site designation, monitoring, and management. A list of the appropriate USAGE
Regional contacts can be requested from USAGE Headquarters.
Although the majority of proposed actions that EPA reviews are either permits or Federal O&M
dredging activities, EPA personnel should also be familiar with the USAGE planning process for new
Civil Works projects. In recent years, the USACF has assigned a life-cycle project manager (LCPM)
and a team project manager (TPM) to new, large Civil Works projects. These managers serve, as
focal pomts for the USAGE District for communications with the local sponsor, EPA, and others
from project conception to completion. The USAGE may also assign another person to serve as the
lead for environmental concerns about a project. These managers report to the LCPM Policy and
Development Branch in the Project Management Division.
Life-cycle project management has been implemented for Civil Works projects that have a
construction value of over $3 million. O&M projects are excluded. The managers may monitor
other Civil Works projects at the discretion of the Division and/or District Engineers. LCPMs or
TPMs are assigned based on project cost, priority, complexity, and environmental sensitivity.
Throughout the developmental cycle, the project manager (LCPM or TPM) develops schedules,
budgets, and milestones in coordination with other functional elements of the USAGE organization
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(i.e., real estate, design, construction, environmental, legal, etc.) and ensures problem resolutions and
project changes as needed so that project development progresses according to schedule for cost,
manpower, and event milestones.
1.5 Regulatory Framework of the Dredged Material Ocean Disposal Program
1.5.1 Overview of Statutes
The aquatic disposal of dredged material is regulated by two principal statutes: the MPRSA and the
CWA. The primary Federal statute governing transportation and ocean disposal of dredged material
is the MPRSA. All proposed dredged material disposal activities regulated by MPRSA and CWA
must also comply with the applicable requirements of NEPA and its implementing regulations.
Jurisdiction of MPRSA and CWA
The geographical jurisdictions1 of the MPRSA and CWA are indicated in Figure 1-3. As shown hi
Figure 1-3, mere is an overlap of jurisdiction within the territorial sea. Dredged material proposed
for disposal in the territorial sea is regulated under MPRSA. In general, material discharged for the
primary purpose of fill (e.g., beach nourishment, island creation, or underwater berms) in the
territorial sea is regulated under the CWA (see Appendix A for more guidance).
In addition to these laws, there are two other Federal laws and three Presidential executive orders that
affect EPA's authority to review the USAGE programs: NEPA (Public Law 91-190), the Clean Air
Act (Public Law 91-604), Executive Order 11593 - Protection and Enhancement of the Cultural
Environment (1971), Executive Order 11991 - Protection and Enhancement of Environmental Quality
(1977), and Executive Order 12088 - Federal Compliance with Pollution Control Standards (1978).
Each of these laws and executive orders is discussed in greater detail below.
'33 CFR 335-338 contains additional information on the geographical jurisdictions of MPRSA and
CWA.
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COASTAL
WATERS
INLAND AND
ESTUARINE WATERS
3T012UUES
MO BEYOND
(CONHGUOUSZONE)
TO
SMUTCH.
ULES
CONNECTING
WATERS
WAL WETLANDS
BXS8JNEOFJHE
= MATERIAL
PLACED
FOR RH
KM/VD LUCES
ANDWA
IE DREDG
Ei-i MATERIAL
DISPOSAL
DREDGE
MATERIAL
DISPOSAL
Figure 1-3. Geographic Jurisdictions of the
Marine Protection, Research, and Sanctuaries Act of 1972
and the Clean Water Act.
[Adapted from National Advisory Committee on Oceans and Atmosphere (1981)]
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MPRSA and Implementing Regulations
Section 102 of the MPRSA requires EPA, in consultation with USAGE, to develop environmental
criteria for the evaluation of proposed ocean disposal activities. Section 103 of the MPRSA assigns to
the USAGE the specific responsibility to authorize the ocean disposal of dredged material. In
evaluating proposed ocean disposal activities, the USAGE is required to apply the criteria at 40 CFR
227 and 228 relating to the effects of the proposed ocean disposal. In addition, in reviewing permit
applications, the USAGE is required to consider navigation, economic, and industrial development,
and foreign and domestic commerce, as well as the availability of alternatives to ocean disposal. If
EPA determines that the criteria at 40 CFR 227 and 228 are not met, disposal may not occur without
a waiver of the criteria by the EPA Administrator [40 CFR 225.2 (e)]. In addition, EPA has
authority under Section 102 to designate ocean disposal sites. The USAGE is required to use such
sites for ocean disposal to the extent feasible. Section 103 authorizes the USAGE, where use of an
EPA-designated site is not feasible or a site has not been designated by EPA, to select ocean disposal
sites for project-specific use. However, EPA has final approval on individual disposal permits for
such sites.
CWA and Implementing Regulations
Section 404 of the CWA requires EPA, in conjunction with the USAGE, to promulgate Guidelines1
for the discharge of dredged or fill material to ensure that such proposed discharge will not result in
unacceptably adverse environmental impacts to waters of the United States. Section 404 assigns to
the USAGE the responsibility for authorizing all such proposed discharges and requires application of
the Guidelines in assessing the environmental acceptability of the proposed action. In addition, the
USAGE is required to examine practicable alternatives to the proposed discharge, including
alternatives to disposal in waters of the United States and alternatives with potentially less damaging
consequences. The USAGE and EPA also have authority under 40 CFR 230.80 to specify, in
advance, sites that are either suitable or unsuitable for the discharge of dredged or fill material within
waters of the United States. EPA is responsible under Section 404(c) for environmental oversight of
'For purposes of this report, Guidelines (capitalized) refers to the CWA Section 404(b)(l) Guidelines.
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the USAGE proposed disposal decision. Under Section 401, the States certify that the project will
comply with applicable State water-quality standards.
National Environmental Policy Act
Dredged material disposal activities must comply with applicable NEPA requirements regarding
identification and evaluation of alternatives for the dredging project. Section 102(2) of NEPA
requires the examination of reasonable1 alternatives to the action proposed by the lead agency. The
alternatives analyzed in an Environmental Assessment (EA) or Environmental Impact Statement (EIS)
must include all reasonable alternatives and those that were eliminated from further study (40 CFR
1502.14) by the agency responsible for the final decision. The regulations issued by the Council on
Environmental Quality (CEQ) for implementing the procedural provisions of NEPA are found at 40
CFR 1500-1508. The NEPA regulations of the USAGE are given hi 33 CFR 230.
For USAGE dredging projects, the USAGE is responsible under NEPA for developing alternatives for
the discharge of dredged material in all facets of the dredging and discharge operation (cost, technical
feasibility, and overall environmental impacts). The USAGE regulations require that the preferred
alternative must be the least-cost plan consistent with environmental statutes, as set forth hi the
Planning Guidance Notebook (USAGE 1990a), and the National Economic Development (NED) Plan
for new-work projects or the Federal standard for maintenance dredging of existing projects (33 CFR
335-338). The differences between the NED Plan and Federal Standard are further explained in
Section 2.4. Compliance with the criteria at 40 CFR 227 and 228 of the MPRSA and/or with the
CWA Section 404(b)(l) Guidelines is a controlling factor used by the USAGE hi determining the
environmental acceptability of disposal alternatives.
'The terms practical (CWA), feasible (MPRSA), and reasonable (NEPA) all have specific regulatory
meaning. However, in this framework, the term reasonable is used generically and not in a strict
regulatory sense. Reasonable is used hi this manual to mean practical or feasible from the technical
and economic standpoint and using common sense, rather than simply desirable from the standpoint of
the project proponent or applicant.
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Rivers and Harbors Act of 1899 (KHA)
Section 10 of this Act requires a USAGE permit for any work or structure, including excavation from
and fill-material discharges into navigable waters of the United States. The primary purpose of
Section 10 is to ensure that private structures do not adversely affect interstate navigation. It
empowers the USAGE to review applications and issue permits for dredging and fill operations and
construction of any structure in the water (e.g., piers, pipelines, bridges, etc.).
Clean Air Act
Under this Act, EPA has broau responsibilities for reviewing the potential environmental impacts 01
the activities of Federal agencies. Under Section 309 of the CAA, as discussed below, EPA has a
responsibility to review and comment on NEPA documents.
These reviews, which the EPA Office of Federal Activities (OFA) coordinates, must be published as
public information. EPA Regional Ocean Dumping Coordinators should communicate their desire to
review USAGE EISs or EAs with the Regional NEPA Review Coordinator. Should EPA find that a
proposed action is environmentally unsatisfactory or that the NEPA document is inadequate, the EPA
Administrator may refer the matter to the CEQ for resolution.
Executive Order 11593 - Protection and Enhancement of the Cultural Environment
This executive order outlines the responsibilities of Federal agencies under the NEPA, the National
Historic Preservation Act of 1966, the Historic Sites Act of 1935, and the Antiquities Act of 1906.
Executive Order 11991 - Protection and Enhancement of Environmental Quality
This executive order outlines the responsibilities of Federal agencies under Title I of the NEPA. It
replaced Executive Order 11514 - Protection and Enhancement of Environmental Quality, issued in
1970.
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Executive Order 12088 - Federal Compliance with Pollution Control Standards
This executive order states that the head of each executive agency is responsible for ensuring that all
necessary actions are taken for the prevention, control, and abatement of environmental pollution,
with respect to Federal facilities and activities. In doing so, each agency head will consult with the
administrators of EPA, State, interstate, and local agencies concerning the best methods for pollution
control and prevention. This executive order also directs each Federal agency to submit an annual
environmental pollution control plan to the Director of the Office of Management and Budget (OMB;
within the Executive Office of the President).
Qther_Re!ated Laws and Executive Orders
In addition to the Federal statutes and executive orders discussed above, the USAGE must comply
with several other laws and orders that are applicable to ocean disposal. Table 1-1 lists a number of
statutes and orders that may relate to USAGE dredging and dredged material disposal activities.
While EPA may not have the formal authority to comment on whether the USAGE or the project
sponsor has complied with other statutory requirements and executive orders, EPA staff can provide
comments on compliance to the USAGE on an informal basis.
1.5.2 Overview of Regulations
EPA regulations (40 CFR 220-229) contain the procedures and criteria for evaluating ocean disposal
activities and the designation of ocean disposal sites under MPRSA. There also are three sets of
USAGE regulations that apply to the ocean disposal program: the NEPA regulations (33 CFR 230)
published on February 4, 1988; the permit regulations (33 CFR 324-326) published on November 13,
1986; and the regulations governing USAGE Federal O&M projects (33 CFR 335-338) published on
April 26, 1988.
Of the EPA Ocean Dumping Regulations (40 CFR 220-229), only Parts 220 and 225 and portions of
Parts 227 and 228 apply to ocean disposal of dredged material (see Appendix M). Significant
sections of each of these parts are relevant to reviewing proposed dredged material disposal activities
and to managing ocean dredged material disposal sites.
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Table 1-1. Statutes and Executive Orders Potentially Applicable to
Proposed Discharge of Dredged Material in Ocean Waters
Statutes
American Indian Religious Freedom Act
Antiquities Act
Clean Air Act
Clean Water Act
Coastal Barrier Resources Act
Coastal Zone Management Act
Endangered Species Act
Estuary Protection Act
Federal Water Project Act
Fish and Wildlife Coordination Act
Historic Sites Act
. Marine Mammal Protection Act
Marine, Protection, Research, and Sanctuaries Act
National Environmental Policy Act
National Fishing Enhancements Act
National Historic Preservation Act
Reservoir Salvage Act
Rivers and Harbors Act of 1899
River and Harbor Flood Control Act
Watershed Protection and Flood Prevention Act
Water Resources Development Act
Wild and Scenic Rivers Act
Executive Orders
• Protection and Enhancement of Environmental Quality
(Exec. Ord. No. 11514, 1977)
• Protection and Enhancement of the Cultural Environment
(Exec. Ord. No. 11593, 1971)
• Floodplain Management
(Exec. Ord. No. 11988, 1977)
• Protection of Wetlands
(Exec. Ord. No. 11990, 1977)
• Federal Compliance with Pollution Control Standards
(Exec. Ord. No. 12088, 1978)
• Intergovernmental Review of Federal Programs
(Exec. Ord. No. 12372, 1982)
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Part 220 sets the purpose and scope of the Regulations, defines important terms, and establishes
categories of permits. A dredged material permit is broadly defined in Section 220.2(h) to mean a
permit issued by the USAGE under Section 103 of MPRSA and any Civil Works projects reviewed
under Section 103(e) of the Act. Subsection 220.4(c) reiterates the authority of the Regional
Administrator to review, approve, disapprove, or propose conditions for the ocean disposal of
dredged material at EPA-designated ocean disposal sites.
Part 225 details the procedures for the review of proposed dredged material permits. Section 225.1
requires that applications for dredged material permits for ocean disposal be evaluated in accordance
with the criteria set forth in Part 227. Section 225.2 gives the procedures and data requirements ...
the Regional Administrator to review proposed dredged material permits. Sections 225.3 and 225.4
detail procedures for invoking economic impact and obtaining a waiver of the applicable criteria set
forth in Part 227.
Applicable sections of Part 227 establish criteria for the evaluation of dredged material applications
for ocean disposal. Subpart A, Section 227.1, states that Subparts C, D, E, and G and Sections
227.4, 227.5, 227.6, 227.9, 227.10, and 227.13 of Subpart B apply to dredged material permits. A
permit applicant must comply with all of the above subparts to be deemed to have satisfied the criteria
at 40 CFR 227. If the Chief of Engineers determines that there is no economically feasible method or
site available other than the dumping site considered hi the application, and the utilization of such
method or site would result in noncompliance with the criteria at 40 CFR 227 and 228 hi Subpart B
relating to the effects of dumping, then the Chief will certify that such situation exists and request that
the Secretary of the Army seek a waiver from the EPA Administrator pursuant to Part 225.
Subpart B (40 CFR 227) of the regulations establishes criteria for evaluating the environmental impact
of proposed dredged material disposal. Section 227.4 specifies that if the applicable prohibitions,
limits, and conditions are met, then the proposed disposal will not unduly degrade or endanger the
marine environment and will present:
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• No unacceptable adverse effects on human health
• No significant damage to the resources of the marine environment
• No unacceptable adverse effect on the marine ecosystem
• No unacceptable adverse persistent or permanent effects due to the dumping of particular
volumes or concentrations of the materials
« No unacceptable adverse effect on the ocean for other uses as a result of the direct
environmental impact.
Section 227.5 prohibits EPA or the USAGE from approving the ocean disposal of the following
materials under any circumstanr<~~..
* High-level radioactive wastes
• Materials produced or used for radiological, chemical, or biological warfare
• Materials insufficiently described by the applicant hi terms of their components and
properties to permit proper application of criteria of Subpart B
* Persistent, inert, synthetic, or natural materials that may float or remain in suspension in a
way that may materially interfere with fishing, navigation, or other legitimate uses of the
ocean
Section 227.6 prohibits the ocean disposal of materials containing the following constituents, as other
than trace contaminants, except on an emergency basis or if rapidly rendered harmless.
• Organohalogen compounds
• Mercury and mercury compounds
• Cadmium and cadmium compounds
• Oil of any kind or in any form transported for the purpose of dumping (insofar as it is not
regulated by the CWA)
• Known carcinogens, mutagens, or teratogens or materials suspected as such by responsible
scientific opinion.
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Constituents are considered to be present as trace contaminants only when they are present in
materials otherwise acceptable for ocean dumping hi forms and amounts such that the dumping will
not cause significant undesirable effects, including the possibility of danger associated with
bioaccumulation in marine organisms. The potential for significant undesirable effects of dredged
material is determined by evaluation of results of toxicity and bioaccumulation tests.
Limitations on the quantities of waste materials are established in Section 227.9. Any materials that
may damage the ocean environment due to the quantities hi which they are dumped or that may
seriously reduce amenities may be dumped only when quantities to be dumped at a single tune and
location are adequately controlled to prevent long-term damage to the environment or to amenities.
Section 227.10 states that dredged materials that may present a serious obstacle to fishing or
navigation may be dumped only at designated disposal sites and under conditions that will ensure that
no unacceptable interference with fishing or navigation occurs. Dredged materials that may present a
hazard to shorelines or beaches may be dumped only at sites and under conditions that will ensure
mat no unacceptable danger to shorelines or beaches will be created.
Section 227.13 lists three types of dredged materials that are environmentally acceptable for dumping
without testing: (1) dredged material composed predominantly of sand, gravel, rock, or any other
naturally occurring bottom material with particle sizes larger than silt and that is found in areas of
high current or wave energy; (2) dredged material composed predominantly of sand, gravel, or shell
to be used for beach nourishment or restoration and consisting of particles the size of which is
compatible with those of the receiving beaches; or (3) dredged material substantially the same as the
substrate at the proposed disposal site and which is far removed from known existing and historical
sources of pollution so as to provide reasonable assurance that such material has not been polluted.
If the dredged material does not fall into one of the categories set out above, further testing of the
liquid/suspended particulate, and solid phases is required. Based on such tests, dredged material will
be considered environmentally safe for dumping if the following conditions are met: (1) the material
is in compliance with the criteria in Section 227.6 (see Section 3.0 for guidance hi making this
determination); (2) all constituents of concern in the liquid phase are hi compliance with applicable
marine water quality criteria after allowance for initial mixing; and (3) bioassays on the suspended
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paniculate and solid phases show that the material can be discharged so as to not exceed the limiting
permissible concentration as defined in Section 227.27(b).
Subpart C sets forth criteria for evaluating the need for ocean disposal. During this evaluation,
Section 227.15 requires that the following factors be considered.
• Degree of treatment useful and feasible for the waste to be dumped, and whether the
material has been or will be treated to this degree before dumping
• Relative environmental risks, impact, and cost of ocean dumping as opposed to other
feasible alternatives
• The irreversible or -trievable consequr^ces of alternatives to ocean dumping
Section 227.16 outlines the basis for determining the need for ocean dumping. The need for ocean
dumping is demonstrated when, after a thorough evaluation of the factors set out above, it is found
that either: (1) there are no practicable improvements to process or treatment technology that would
reduce the adverse environmental impacts of the dumping, or (2) there are no practicable alternative
locations or methods of disposal or recycling available that have less adverse environmental impact or
potential risk to other parts of the environment than ocean dumping.
Subpart D and Subpart E provide the basis for determining the impact of the proposed dumping on
esthetic, recreational, and economic values, and for evaluating impact on other uses of the oceatr,
respectively. Definitions of key terms used in Part 227 are given in Subpart G.
Sections of Part 228 pertaining to dredged material provide criteria for the management of ocean
dredged material disposal sites. Section 228.1 lists the following sections of Part 228 applicable to
dredged material disposal sites: Sections 228.4(e), 228.9, and 228.12. Subsection 228.4(e) outlines
procedures for designating ocean dredged material disposal sites in accordance with the appropriate
requirements at Sections 228.5 and 228.6. Section 228.5 defines five general criteria for the selection
of ocean disposal sites and Subsection 228.6(a) lists specific factors to be considered in designating an
ocean site. Section 228.9 addresses monitoring of ocean disposal sites. The delegation of manage-
ment authority for interim ocean dumping sites is found in Section 228.12.
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1.53 Other Dredged Material Ocean Dumping Guidance
In addition to regulations, agency regulatory and programmatic responsibilities are further detailed in
Memoranda of Agreement (MOAs) or Memoranda of Understanding (MOUs) between the EPA and
the USAGE. At present there are five MOAs/MOUs between EPA and the Department of the Army
related to dredging: three under the CWA,1 one under the MPRSA, and one under both statutes.
The MOA under the MPRSA directs the EPA and the USAGE (1) to undertake a cooperative effort in
funding ocean disposal-related activities and (2) to develop and implement individual MOAs (also
called field agreements) among Regions and Divisions/Districts. The primary focus of these field
agreements is to address both agencies' responsibilities related to site-designation, monitoring, and
management.
Other types of EPA and USAGE regulations and guidance also shape the ocean disposal program.
Overall policy guidance for the USAGE dredging program is set by the Chief of Engineers. The
Ghief approves a set of goals and objectives for the dredging program and revises them based on
significant events affecting USAGE missions. In turn, USAGE field offices establish programs to
meet specific local needs and to support the goals and objectives set. In recent years, much of the
guidance issued by the Chief has placed an emphasis on environmental protection.
The Chief of Engineers also issues Regulatory Guidance Letters (RGL) and Dredged Material
Guidance Letters (DrGL) to USAGE Field Offices to address outstanding policy issues. RGLs are
issued through the Regulatory Branch; DrGLs are issued through the Navigation/Dredging Branch.
Each letter is given an issuance and expiration date. These letters are important to EPA Regions
because they represent current USAGE guidance on issues that are hi the process of resolution.
Because the USAGE has recognized inconsistency in field implementation of DrGL guidance, DrGLs
are being gradually phased out. Since the USAGE is no longer able to maintain a mailing list to
furnish copies of the RGLs to the public, the USAGE publishes new RGLs in the Federal Register as
they are issued and a complete list of current RGLs each January. Examples of a RGL are found in
Appendix B.
'The three MOAs under Section 404 of the CWA address enforcement, determination of mitigation,
and geographic jurisdictions and exemptions.
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USAGE technical guidance is issued in the form of engineering regulations, engineer manuals,
engineer circulars, engineer pamphlets, and engineer technical letters. Engineer circulars are
documents, usually with a one-year life, that provide guidance on short-term topics or interim
guidance that will be addressed in the near future. Pamphlets are a good source of how-to guidance;
EPA Regions are encouraged to request the Index ofUSACE/OCE Publications (USAGE 1989a),
which lists the engineering regulations pamphlets, circulars, manuals, technical letters, and office
memoranda by number and alphabetically by key word. It is updated annually. A copy can be
obtained by contacting the local USAGE District, or by writing to:
USAGE Publications Depot
2803 52~3 Avenue
Hyattsville, MD 20781-1102
For EPA Regional staff who are unfamiliar with the USAGE, one suggestion for learning more about
the USAGE is to enroll in some of the over 200 USAGE short courses conducted under the
proponent-sponsored engineer USAGE training (PROSPECT) program. Given class size limits, the
USAGE gives priority to USAGE and other Federal students. Among the courses that may be of
interest to EPA Regional Staff are "Planner Orientation - Water Resources," "Regulatory I," and
"Life Cycle Project Management." Complete course descriptions, locations, and dates are listed hi
The Purple Book — Managers and Supervisors Training Handbook, published annually by the Army
Engineer Training Division. Their address is U.S. Army Engineer Division, Huntsville; Training
Division (Arm: CEHND-DO-TA); P.O. Box 1600; Huntsville, AL 35807.
Finally, EPA and the USAGE have issued many guidance and reference documents relating to the
ocean disposal program for dredged material. A list of the most important documents follows.
• Evaluating Environmental Effects of Dredged Material Management Alternatives —
A Technical Framework (EPA/USAGE 1992). This document provides a consistent
technical framework for identifying environmentally acceptable alternatives for the
management of dredged material under the MPRSA, the CWA, and the NEPA.
• Evaluation of Dredged Material Proposed for Ocean Disposal — Testing Manual (also
known as the Dredged Material Testing Manual or Green Book) (EPA/USACE 1991).
This manual contains procedures and methods for evaluating the potential ecological
effects of dredged material.
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• Dredged Material Ocean Dumping Reference Document (EPA 1992). This reference
document contains an annotated bibliography of dredged material reference documents,
including general as well as site-specific technical and policy documents.
• Digest of Water Resources Policies and Authorities (USAGE 1989b). This document
provides a brief summary of the current administrative and legislative water-resources
policies and authorities related to the USAGE Civil Works program.
• Policy and Planning Guidance for Conducting Civil Works Planning Studies (also known
as the Planning Guidance Notebook) (USAGE 1990a). This notebook summarizes the
planning process for the different types of USAGE projects.
• Managing Ocean Disposal of Dredged Material (EPA, in preparation). This document
will provide a comprehensive reference for managing ocean disposal of dredged material.
• Guidance Manual fc, Jcean Dumping Site Designation and Monitoring (EPA 1987).
This manual explains the procedures for designation of ocean dumping sites and for
developing a monitoring plan for all types of ocean disposal sites, including those for
dredged material disposal.
Other reference documents commonly used by the USAGE in other related programs are listed in the
reference section. A summary of current EPA, USAGE, and interagency guidance related to the
ocean disposal program appears in Figure 1-4.
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• REGULATIONS
— 40 CFR 220-229,
Ocean Dumping
• GUIDANCE MANUALS
— Dredged Material Ocean
Disposal Reference
Document
(EPA, 1992a)
— Managing Dredged
Materail for Ocean
Disposal (draft)
(EPA, 1992b)
— Ocean Dumping Site
Designation Delegation
Handbook for Dredged
Material
(EPA, 1986)
MEMORANDA OF
AGREEMENT
HELD AGREEMENTS
GUIDANCE MANUALS
- Evaluating
Environmental Effects
of Dredged Material
Management
Alternatives —
A Technical Framework
(EPA/USACE, 1992)
- Evaluation of Dredged
Material Proposed for
Ocean Disposal —
Testing Manual
("Green Book")
(EPA/USACE, 1991)
• REGULATIONS
— 33 CFR 220,
NEPA
- 33 CFR 320-330,
Permits
— 33 CFR 335-338,
Civil Works Projects
• GUIDANCE MANUALS
— Revised Procedural
Guide for Designation
Surveys of Ocean
Dredged Material
Disposal Sites
(Pequegnat, etal., 1990)
— Digest of Water
Resources Policies and
Authorities
(USAGE, 1989)
— Economic and
Environmental Principles
and Guidance for Water
and Related Land
Resources
Implementation Studies
(USAGE, 1983)
— Index of USACE/OCE
Publications
(USAGE, 1983)
• OTHER GUIDANCE
— Regulatory Guidance
Letters
— Engineer Technical
Letters
— Engineer Manuals
— Engineer Circulars
— Office Memoranda
Figure 1-4. Summary of Current EPA and USAGE Guidance Related to the
Ocean Disposal of Dredged Material
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USAGE
Section 2
FOR PERMITS AND FEDERAL PROJECTS
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2.0 USAGE PROCEDURES FOR PERMITS AND CIVIL WORKS PROJECTS
This section describes the general procedures followed by the USAGE in (1) processing a permit and
(2) planning, operating, and maintaining a USAGE Civil Works project (commonly called a Federal
project). This discussion is based primarily on the regulations for permits at 33 CFR 320, 324-326
(Appendix C) and for Civil Works projects at 33 CFR 335-337 (Appendix D), as well as on guidance
found in two USAGE documents, the Digest of Water Resources Policies and Authorities (USAGE
1989b) and the Planning Guidance Notebook (1990a). Both of these documents may be obtained
through a USAGE District office. EPA Regional staff are encouraged to consult these documents for
more information about these processes.
This section begins with a brief description of the USAGE regulatory and procedural process under
NEPA, because all major Federal actions, including permit decisions by the USAGE, must comply
with this Act. Following this explanation is a step-by-step description of the USAGE process for
permits, Civil Works projects, and O&M activities. Lists of end products, written documentation
prepared by the USAGE, follow the discussion of each step in the process. Guidance on coordination
with the USAGE is highlighted in bold throughout the discussion and summarized following the
descriptions of the planning processes for permits, Civil Works projects, and O&M activities. After
an overview of these processes, the difference between permitted activities and Civil Works projects
is discussed.
2.1 USAGE NEPA Regulations
The regulations under which the USAGE implements the NEPA are given in 33 CFR 230. These
regulations provide general guidance for preparing and issuing NEPA documents, including a list of
those actions normally requiring an EIS, a list of actions requiring an EA but not necessarily an EIS,
and categorical exclusions. There are important links between EPA's review under NEPA and the
review under Section 103 of MPRSA. It is through the NEPA process that the dredged material
disposal alternatives, including no action, open-water disposal (ocean or otherwise), or confined
disposal of dredged material, are evaluated, documented, and publicly disclosed.
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Should EPA Regional Ocean Dumping Coordinators wish to comment or obtain information on
USAGE'S NEPA documents, legislation, regulations, National program proposals, or other major
policy issues, they should contact the EPA Federal Liaison to the USAGE hi the EPA Office of
Federal Activities in Washington, DC. EPA Regional Ocean Dumping Coordinators should provide
comments on USAGE NEPA documents to their EPA Regional NEPA Review Coordinator. The
EPA Regional NEPA Review Coordinator will compile and forward the comments to the office of the
District Engineer supplying the document. It is important to note that the USAGE usually provides
EPA only with a Public Notice summarizing its findings about a proposed permitted or O&M activity
or announcing the availability of an EIS. The USAGE will provide supporting documentation to EPA
if the Agency expresses an interest in the findings or action described in the Notice. USAGE'S
NEPA process is based on assessing the potential environmental impacts of a project by comparing
conditions without the project to conditions with the project. The process outlined in 33 CFR 230 for
routine USAGE actions (Figure 2-1) may be summarized as follows.
• Evaluate the proposed activity
• Prepare an EA
• Determine whether to prepare either:
(A) A Finding of No Significant Impact (FONSI) if no further study is required, or
(B) An EIS, if further study is required
• Issue Notice of Intent to prepare an EIS and to initiate scoping
• Determine scope of the EIS
• Gather historical and baseline information
• Prepare a draft EIS (DEIS)
• File DEIS with EPA; minimum 45-day public comment period
• Respond to public comments
• Hold a public hearing (optional)
• Prepare final EIS
• Publish Notice of Availability and file final EIS with EPA; 30-day public comment period
• Publish Record of Decision in the Federal Register
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Prepare FONSI
File DEIS with EPA
& Release to Public
Comment
Period
Min. 45 Days
Comment
Period
.Min.30 Days
Environmental
Assessment
Publish
Notice of Intent
(NOI)
Prepare Draft EIS •-<-
Initiate Scoping
Process
Is Public Meeting
Warranted?
1
f
">l
No
1
Close Cc
Peri
w^
'
immerrt 1
nrl I
*
P
1
/
\
Publish/Distribute
Hearing Notice
Publish NOA&
Distribute Rnal EIS
to Agencies/Public
Respond to
Comments/
Prepare Rnal EIS
Close
Comment Period
Record of Decision
Figure 2-1. USAGE NEPA Procedures
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Some proposed activities clearly warrant development of an EIS. In such cases, an EA is unneces-
sary. Otherwise, to determine if an EIS is required for proposed disposal of dredged material, an EA
is usually prepared. For USAGE projects, the Public Notice typically appears several months before
construction or operation and maintenance work begins; however, this may be months or years after
completion of NEPA documents for the project. Because the USAGE may have made minor
modifications to the project since publication of the NEPA documents, the USAGE generally
publishes a Public Notice immediately prior to construction to ensure appropriate coordination with all
concerned parties under NEPA.
The USAGE reevaluates a permitted activity or Civil Works project under NEPA if significant new
conditions or new information arises (e.g., contamination of sediments caused by a spill). The
decision to reevaluate a permitted activity or Civil Works project under NEPA lies with the District
Engineer. EPA evaluators who are reviewing such activities should refer to prior NEPA compliance
documents, Section 404 or Section 103 Evaluations, and Public Notices. Additional information
about Civil Works projects may also be outlined in engineering or project reports.
To comply with NEPA, the USAGE will either update an EA/FONSI or issue a supplement to the
existing EIS, comparing the new findings and conditions with those discussed in earlier NEPA
documents. If the USAGE determines that additional NEPA documentation is not necessary, the
USAGE must disclose their decision hi accordance with the NEPA public review process or in the
Public Notice for the 404/103 Evaluation, and provide an opportunity for public comment prior to
selection of the preferred alternative.
In cases where Civil Works navigation projects involve new work (i.e., new channels or improve-
ments to existing channels) or new 404/103 permit applications, the USAGE must evaluate the
activity under NEPA. The EIS/EA development should be initiated as early in the evaluation process
as possible. For more detailed discussion of the USAGE regulations implementing NEPA and
situations that warrant reevaluation under NEPA, refer to 33 CFR 230 and 325.
Though EAs may vary somewhat in format, all discuss the need for the proposed action, appropriate
alternatives, and the environmental impact of the proposed action and alternatives. They also provide
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a list of the agencies, interested groups, and individuals that were consulted during the development
of the EA. As a general rule, EAs do not exceed 15 pages. Although not specifically required, EAs
often include dredged material evaluation/testing results that have been used to evaluate any potential
environmental impact by the proposed project.
An EA can result in the issuance of a FONSI or the preparation of an EIS. A FONSI indicates that
no further assessment is necessary and explains why actions are judged not to have a significant effect
on the environment and why an EIS is not needed. For dredge and fill activities, a Public Notice is
published to indicate the availability of the EA/FONSI.
The development of an EIS bv^iis with the publication of a Notice of Intent to prepare an EIS. Vi.e
Notice of Intent should conform with the requirements of 33 CFR 230. Public Notices contain the
following elements.
• Local billing code number
• Federal Register log (FRL) number (filled in at USAGE Headquarters)
• "Project title
• Brief description of the action
• Statement of purpose for the Notice
• Contact for further information (name, address, and telephone number)
• Brief summary of the project
• Brief description of project alternatives
• Brief description of scoping actions including the date, tune, and location of meetings
and/or instructions for the submission of comments
• Estimated date for release of the DEIS
• Name of the responsible USAGE official
After publication of the Notice of Intent, the USAGE begins the scoping process. During scoping,
environmental, historical, and other types of concern and legal obligation are raised and identified for
response in the EIS. Scoping may entail meetings or telephone conversations with interested private
individuals and Federal, State, and local agencies that have responsibility for environmental protection
or resource management. In addition to notifying EPA, the USAGE contacts other Federal agencies
with whom coordination is specifically required by law - the National Marine Fisheries Service,
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United States Fish and Wildlife Service, and State agencies responsible for coastal zone management
and historic preservation. EPA Regional Ocean Dumping Coordinators should work closely with
their NEPA Coordinators and USACE District contacts to ensure active involvement in the
scoping process.
While not required by the regulations, some Districts prepare a preliminary DEIS to collate and assess
available information. The document should identify the need for ocean disposal, discuss alternative
options, and describe the physical, biological, and socioeconomic environments. The document must
present sufficient information regarding the overall impacts of the proposed action so that decision-
makers can offer a reasoned judgment. The preliminary DEIS should also identify data gaps and
discuss future plans to supplement the data. The preliminary DEIS should follow the outline for a
final EIS as much as possible. The USACE may, but is not required to, forward the preliminary
DEIS to EPA for review. EPA Regional Ocean Dumping Coordinators may want to reach an
agreement, either informally or formally through a Memorandum of Understanding or field
agreement, that allows the Region to review the preliminary DEIS under certain circumstances
(e.g., highly controversial projects or use of an ocean disposal site not designated by EPA under
40 CFR 228). For permits or Civil Works projects involving ocean disposal of dredged material,
informal coordination of the preliminary DEIS with ocean dumping experts in the EPA Region may
be beneficial. An unofficial review is often provided to obtain comments on substantive issues.
If prepared, a preliminary DEIS is revised based on comments received and any new information
acquired as a result of those comments, to produce the DEIS. The USACE files the DEIS with the
EPA Office of Federal Activities to transmit it to commenting agencies and makes it available to the
public. The OFA delivers one copy to the CEQ to satisfy the requirement of availability to the
President. The EPA publishes a notice hi the Federal Register each week of the EISs filed during the
preceding week. A period of review (not less than 45 days for a DEIS) begins on the date that the
Notice of Availability is published hi the Federal Register. At the same time that the EIS is sent to
the OFA, the EIS is sent to the Fish and Wildlife Service, the National Marine Fisheries Service, and
the USACE Headquarters. The Notice of Availability is published to inform other agencies and
concerned parties of the availability of the EIS.
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A complete review of the comments received on the DEIS initiates the preparation of the final EIS.
Responses to comments are prepared, and modifications are made to the EIS as required. Coordina-
tion under the Endangered Species Act and a consistency determination by the State under the Coastal
Zone Management Act is completed, if required, and incorporated into the final EIS. The final EIS is
then sent to OFA, and a Notice of Availability is sent to concerned agencies, organizations, and the
interested public. A period of review (not less than 30 days) is established for comments beginning
on the date that the Notice of Availability appears in the Federal Register.
Following consideration of the comments received on the final EIS, a Record of Decision (ROD) is
prepared to finalize the NEPA process. The ROD provides a concise public record of the decision-
making. The ROD will clearly state what the decision was, identify the alternative(s) considered,
identify the alternative(s) that were considered to be environmentally preferable, and discuss the
preferences among alternatives based on relevant factors. These factors may include economic and
technical considerations, agency statutory missions, and essential considerations of National policy.
The ROD is required to identify all factors that were considered by the agency in making its decision
and state how the factors entered into the decision-making process.
Section 309 of the Clean Air Act gives EPA review authority of the NEPA documents. If EPA
determines that the activity as described in the NEPA document would cause unsatisfactory environ-
mental effects, differences surrounding the proposed activity and the environmental documentation
may be resolved by elevating these issues to the CEQ, in accordance with the procedures of
40 CFR 1504.
In addition to the NEPA, the USAGE must also determine compliance with a host of other environ-
mental protection statutes and Presidential executive orders. For example, the USAGE may need to
modify the dredging schedule to avoid harming endangered species or to avoid sites that have been
placed on the National Register of Historic Places by the President's Advisory Council on Historic
Preservation. Coordination with the responsible Federal and State agencies is normally effected
through the public coordination process. Principal environmental review and consultation require-
ments are given in 33 CFR 230.25.
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2.2 USAGE Permits
Permits are issued by the USAGE Regulatory Program under 33 CFR 320-330 to any party
(individuals, companies/corporations, contractors, State and local governments, etc.). Other Federal
agencies are also required to apply for a permit, even if the USAGE is the organization that would
carry out the permitted activity. Although the USAGE does not issue a permit to itself, it applies the
criteria at 40 CFR 227 and 228 or 404(b)(l) Guidelines, as appropriate, and other substantive
requirements of MPRSA, CWA, and other environmental laws (see 33 CFR 335.2) to Civil Works
projects.
The USAGE uses one of three regulatory mechanisms to authorize work: a standard permit, a
general permit, or a letter of permission. The USAGE issues a standard permit for the ocean disposal
of dredged material.
The number of permit applications received by the USAGE under Section 103 of the MPRSA (and
also Section 10 of the Rivers and Harbors Act of 1899) varies greatly from year to year. In the past,
the number of applications received each year has ranged from 15 to 107. On average, the USAGE
has processed approximately 50 individual permit applications for ocean disposal per year since 1983.
In 1988, the USAGE processed 47 individual permits. Because permits may encompass multiyear
activities, the actual number of disposal actions in a given year may vary from the number of
permits.
2.2.1 Permitting Process
The following discussion provides a step-by-step overview of the regulatory program for permits, as
described in 33 CFR 320-330 (see Figure 2-2). End products, such as EISs or EAs, are listed after
each step to aid in identifying project documentation. For more specific information about these
processes, EPA Regional staff are encouraged to refer to the regulations (33 CFR 320-330).
Whenever the District Engineer becomes aware of planning for work that may require a Department
of the Army permit and that may involve the preparation of an environmental document (EA or EIS),
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PreappUcatton
Consultation
Evaluation of Dredged
Material Proposed tor
Ocean Disposal
Second Request with
30-Day Suspension
Appflcant
Responds?
Withdraw Permit
Application
Permit Application
Submitted
Is Application
Complete?
Applicant
Responds?
USACEPubte
Notice Process
Request Information
torn Applicant
DERndsDM
Incompliance
with Criteria?
USAGE NEPA
Process
EPA Evaluation of
Dredged Material
EPA Rods DM In
Compliance with
Criteria?
District Engineer
Completes Evaluation
tePermith \ No
Public Interest? ^ >1 DenyPermit
Ad Olner Permits \. No
Obtained?
See
Figure 2-3
Figure 2-2. USACE Permit Application/Evaluation Procedures
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he should contact the principals and advise them of the requirements for the permit or permits and the
attendant public interest review, including the development of an environmental document. Whenever
the potential applicant indicates the intent to submit an application for work that may require
environmental documentation, a single point-of-contact, called the "permit manager," within the
USAGE District is assigned to coordinate all the necessary paperwork, meetings, hearings, and other
actions to comply with the NEPA regulations and the MPRSA. Effort devoted to this process is
generally commensurate with the likelihood of a permit application actually being submitted to the
USAGE.
1. Preapplication Consultation
Prior to submitting ai • ^plication, the potential applicant may request a preapplication
consultation to gam a better idea of the information and potential studies that may be required.
Districts may invite other interested parties, such as appropriate EPA Regional, State, and
local officials, to attend the consultation so that the applicant may gain the greatest insight as
to potential data needs, problems, and alternatives at the earliest point in the permitting
process. Issues such as disposal site alternative analysis and dredged material evaluation
should be raised at this tune. The applicant should be informed of the quantitative and
qualitative data required by the District Engineer for use in preparing an EA and/or EIS and
for evaluating the proposed disposal of dredged material in the ocean.
Site management plans and District/Regional Testing Guidance will often set minimum
testing and coordination requirements. If Regional Ocean Dumping Coordinators wish
to participate in design and coordination of sampling or testing plans in selected cases,
they should inform their counterpart at the District.
2. Evaluation of Dredged Material Proposed for Ocean Disposal
In most cases, the Districts review and approve sediment sampling and evaluation/testing
plans before sampling and testing begins. A meeting between the applicant and appropriate
District personnel to review the sampling and testing plans and to identify the appropriate
testing procedures may be helpful. Testing and evaluation should be completed following the
guidance provided hi Evaluation of Dredged Material Proposed For Ocean Disposal —
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Testing Manual (EPA/USACE 1991), commonly referred to as the Green Book or Testing
Manual, and the District/Regional Guidance for implementing the testing manual (refer to
Section 3). Close coordination between the EPA Region and USACE District personnel is
called for at this stage in all but routine cases.
3. Permit Application
A permit applicant must file a standard application form (ENG Form 4345, OMB Approval
No. OMB 49-R0420) (see Appendix E) with the USACE District. According to 33 CFR
325.1, a permit application must include the following.
• A complete description of the proposed activity, including necessary drawings, sketches,
or plans
• The location, purpose, and need for the proposed activity; scheduling of the activity;
names and addresses of adjoining property owners; location and dimensions of adjacent
structures
• A list of authorizations required by other Federal, interstate, State, or local agencies for
.the work, including all approvals received or denials already made
• The source of the material; the purpose of the disposal and a description of the type,
composition, and quantity of the material; the method of transportation and disposal of the
material; and the location of the disposal site
After the applicant submits the completed standard application form and the required informa-
tion, the District assigns an identification number and informs the applicant of that number.
4. Review of Permit Application for Completeness
The District has a maximum of 15 days to determine wheflier the application is complete. If
the application is determined to be incomplete, the District generally requests the applicant to
provide additional information deemed essential to determining whether the proposed activity
is in the public interest. However, the District Engineer may not delay publication of a
Public Notice, even if the application is incomplete, and further data are required to evaluate
the application. Results of the evaluation of the proposed dredged material in accordance with
the criteria given in 40 CFR 227 and the procedures provided in the Green Book are often
required for inclusion in the Public Notice. The primary purpose of the Public Notice is to
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inform the public of the proposed action and to solicit comments and information necessary to
evaluate the probable impact of the proposed activity.
Upon receipt of any additional information, the District Engineer issues a supplemental,
revised, or corrected Public Notice if he believes that the new information affects the review
of the proposal. If an applicant does not respond with the requested additional information,
the District provides a second request for information with a deadline of 30 days. If the
applicant does not respond in the allotted time, the application is considered withdrawn.
END PRODUCT: Permit Application/Permit Withdrawal
/
5. The USAGE Public Notice Process
The determination of completeness and the Public Notice must be prepared and issued within
IS days (if the application is complete). A determination of completeness is made based on
the criteria found at 33 CFR 325.l(d) and 33 CFR 325.3. The required contents of the
Public Notice for proposed permits are presented hi Table 2-1. Per 33 CFR 325.3, Public
Notices issued by the USAGE for dredged material disposal must include all of the information
in 40 CFR 225.2(a). A Public Notice is incomplete and noncompliant with both the USAGE
and EPA regulations if it does not contain this information.
Public Notices are generally in the form of an announcement on USAGE letterhead, rather
than a publication hi the Federal Register (for example, see Appendix F). The primary
purpose of the Public Notice is to inform agencies and the public of the proposed activity and
to solicit comments and information necessary to evaluate its probable impact.
Public Notices are distributed to all parties on the USAGE mailing list, including all relevant
State and Federal agencies, post offices hi the vicinity of the proposed activity, appropriate
city and county officials, U.S. Senators and Representatives, and all who have requested
copies of the Notices. The mailing lists are updated at least once every 2 years. If the
District Engineer determines an EIS is required, a Notice of Intent and Scoping Notice will be
published hi the Federal Register to begin the formal NEPA process described in Section 2.1.
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Table 2-1. Information Required for Public Notices for
USAGE Permits under MPRSA (from 33 CFR 325.3)
G Applicable statutory authority or authorities
D Name and address of the applicant
D Name or title and address of the USAGE employee from whom additional information
concerning the application can be obtained
D Location of the proposed dredging
O A brief description of the proposed activity, its purpose, and its intended use to provide
sufficient information concerning the nature of the activity to generate meaningful com-
ments, including a description of the type, composition, and quantity of the dredged
material to be discharged or disposed of in the ocean
D • A plan and elevation drawing showing the general and specific site location and character of
all proposed activities, including the size relationship of the proposed dredging to the size of
the impacted wa'. -nvay and depth of water in the area
D A description of the activity's relationship to the baseline from which the territorial sea is
measured
D A list'of other government authorizations obtained or requested by the applicant, including
required certification relative to water quality, coastal zone management, or marine
sanctuaries
D A statement of the District Engineer's current knowledge on impact of the proposed activity
on historic properties
D A statement of the District Engineer's current knowledge on impact of the proposed activity
on endangered species
D A statement on the various evaluation factors on which decisions are based
D Any other available information that may assist interested parties in evaluating the likely
impact of the proposed activity, if any, on factors affecting the public interest
D The comment period l
D A statement that any person may request, in writing, within the comment period specified in -
the notice, that a public hearing be held to consider the application; that a request for a
public hearing state the particular reasons for holding a public hearing
D For non-Federal applications in States with an approved coastal zone management plan, a
statement on compliance with the approved plan
D Specific location of the proposed disposal site and its physical boundaries
D A statement as to whether the proposed disposal site has been designated by the Administra-
tor, EPA, pursuant to Section 102(c) of the MPRSA; if the site has not been designated by
the Administrator, a description of the characteristics of the proposed disposal site and an
explanation as to why no previously designated site is feasible
D A brief description of known dredged material discharges at the proposed site
D Existence and documented effects of other authorized discharges of dredged material that
have been made in the disposal area (e.g., heavy-metal background, organic-carbon content)
D Estimate of how long disposal would continue at the site
D Information on the characteristics and composition of the dredged material (results of
dredged material testing and evaluation)
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The comment period on the Public Notice is generally between 15 and 30 days; on occasion,
extensions for 30 days are granted by the District Engineer. The length of the comment
period depends on (1) the nature of the proposal (if it is routine or controversial), (2) mail
tune to receive the Public Notice and comments to and from remote areas, (3) comments on
similar proposals, and (4) the need for a site visit. This comment period is longer than the
EPA's ocean disposal review time specified in 40 CFR 225(c). If needed, EPA may request
additional, relevant information to assist in its review.
END PRODUCTS: Public Notice
Additional Information Relevant to EPA Review
6. EPA MPRSA Review
Upon the issuance of the Public Notice, EPA independently reviews the information contained
in the Public Notice and any information provided to determine whether the disposal activity
complies with the criteria found in 40 CFR 227 and 228. Figure 2-3 illustrates the proce-
dures for EPA's review of the proposed ocean disposal activity. For guidance in conducting
this review, refer to Section 3.0, Technical Evaluations of Proposed Disposal Action. After
completing the review, the EPA Regional Administrator informs the District Engineer in
writing about whether the activity meets EPA criteria at 40 CFR 227 and 228 or not. If EPA
is concerned that the proposed project does not meet the criteria of 40 CFR 227 and 228,
then EPA should work with the USACE to construct "special conditions" that will bring
the proposed discharge into compliance with the criteria. Examples of permit conditions
are given in Appendix G.
7. District Engineer Completes Evaluation
After the comment period has closed, the District Engineer assesses the need for an EIS and
for a public hearing, if requested. If a public hearing is warranted, the USACE issues a
Public Notice generally 30 days prior to the hearing to inform the public of the tune and
location of the hearing. The public has a minimum of 10 days following the hearing to
submit additional comments to the hearing record.
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DE Determines
Proposed Disposal
Complies With Criteria
Evaluation for Compliance With
>< Is Data Complete?
EPA Receives PN & Data to
Evaluate Proposed Disposal
EPA Requests
Needed Data
Disposal in Compliance?
District Engineer Completes
Evaluation
DE Decides to
Issue Permit?
Is There an Economically
Feasible Alternative?
EPA Grants Waiver?
Is Proposed Dumping in
Public Interest?
Request Waiver of Criteria or
Critical Site Designation tram
EPA Administrator
COE Certifies
Ocean Disposal to Be
Required?
Forward Application & Supporting
Documentation to Chief of
Engineers
Forward to
Secretary of Army
Figure 2-3. Procedures for EPA Review of
Proposed Ocean Disposal of Dredged Material
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If the District Engineer believes that he needs the views of the applicant on particular points
raised in the public comments, the USAGE may furnish all appropriate comments (summary
statements, actual letters, or portions thereof) to the applicant for comment. The applicant
may voluntarily contact the commenters to resolve differences; if desired, the USAGE
regulatory staff may offer to be present to provide information about the process, mediate
differences, or gather information to aid in decision-making. Processing of an application is
not delayed unless the applicant requests an extension (not to exceed 30 days) to provide
additional information or comments.
8. USAGE Public Interest Review
When the public comment period is closed and all relevant data have been gathered, th~
USAGE conducts a public interest review in which the USAGE considers the beneficial and
detrimental impacts of the activity. The USAGE must consider all comments, suggestions,
and concerns provided by all commenters and incorporate their comments into the administra-
tive record of the application. In making a final decision about a permit, the District
Engineer must determine that the activities are hi the public interest. This analysis should
include the immediate and cumulative effects of the activities hi relation to factors such as
conservation, economics, esthetics, general environmental concerns, fish and wildlife values,
navigation, shore erosion and accretion, recreation, water quality, the needs and welfare of
the people, etc. (33 CFR 320.4).
This evaluation must also consider the following criteria (33 CFR 320.4).
• The relative extent of the public and private need for the proposed work
• The practicability of using reasonable, alternative locations and methods to accomplish the
objectives of the proposed work, where there are unresolved conflicts as to resource use
• The extent and permanence of the beneficial and/or detrimental effects that the proposed
work is likely to have on the public and private uses to which the area is suited
If the proposed dumping does not comply with EPA criteria at 40 CFR 227 and 228, the
District Engineer first determines if there is an economically feasible alternative or disposal
site [33 CFR 324.4(c)(l)]. If no economically feasible alternative method or site is available
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and the proposed activity is not contrary to public interest, the District Engineer explains his
reasoning for making the determination to the EPA Regional Administrator. At this point, it
is worthwhile to note the inconsistencies between the USAGE and EPA regulations. The
USAGE regulations [33 CFR 324.4(c)(2)] provide the EPA Regional Administrator with 15
days to remove his objection after he has been informed of the District Engineer's determina-
tion. This provision is not found hi the EPA regulations (40 CFR 225.3), and the authority to
rescind a finding of noncompliance has not been delegated from the Administrator to the
Regional Administrators. The Regional Administrator could reevaluate a proposed project
based on changed project conditions (e.g., realigning the channel away from unacceptable
sediments or capping unacceptable dredged material with acceptable sediment.) Therefore, it
Is essential for EPA Ke^:;.^! Ocean Dumping Coordinators to ensure that all their
efforts to resolve differences between EPA and the USACE have been exhausted. Once
the Regional Administrator finds the activity not to be in compliance with the criteria at
40 CFR 227 and 228, all remaining EPA coordination with the USACE is conducted
through the EPA Administrator, unless a substantive change is made to the project that
affects the Regional Administrator's original determination.
After reviewing the permit application, permit evaluations, and supporting documentation, the
Chief of Engineers decides whether to deny or to recommend permit issuance. In accordance
with the MPRSA, if the Chief of Engineers finds that ocean dumping is required because
there is no economically feasible alternative method or site, the Chief shall so certify and ask
the Secretary of the Army to request from the EPA Administrator a waiver of the criteria at
40 CFR 227 and 228. For more information about the issuance of waivers, refer to Section
4.0, Waiver of Criteria.
END PRODUCTS: Permit Evaluation and Decision Document
9. Permit Issued
A permit decision must reflect National concerns for both the protection and utilization of
natural resources. A decision to issue or deny a permit is discussed in either a Statement of
Findings (SOF) or ROD, as described in Section 2.1. The USACE adds special conditions to
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permits when necessary to satisfy legal requirements, to bring the project into compliance
with the criteria at 40 CFR 227, or to otherwise satisfy the public interest requirement;
permit conditions are directly related to the impacts of the proposed project, appropriate to the
scope and degree of those impacts, and reasonably enforceable (33 CFR 325.4). The USAGE
generally combines into a single document the SOF, EA, FONSI (if appropriate), 404(b)(l)
guideline analysis, and/or the evaluation of the criteria (40 CFR 227 and 228) for ocean
dumping of dredged material. An example of a USACE permit evaluation and decision
document is given hi Appendix H.
END PRODUCTS: SOF or ROD
Final Permit
10. Permit Public Notice
A list of permit decisions is published and distributed to all interested parties each month.
The list includes a Public Notice number, the name of the applicant, and a brief description of
the proposed activity for identification purposes. The Combined Decision Document is
available on written request, and, hi some cases, on payment of administrative fees.
END PRODUCT: Public Notice
2.2.2 EPA Coordination Review Under the Permit Program
This subsection summarizes the procedures hi terms of EPA's role in the permit-evaluation process.
Throughout the USAGE'S process for evaluating a permit, there are several points when EPA may
communicate its concerns, recommend further analysis, recommend permit special conditions, or
suggest plan modifications. To summarize, EPA has two opportunities for formal coordination with
the USACE: the review under NEPA and the review of USACE evaluations under Section 103 of
MPRSA. During the NEPA review, all dredged material disposal alternatives, including no action,
open water disposal, or confined disposal of dredged material, are evaluated, documented and
publicly disclosed. To ensure participation hi the EPA NEPA review of potential ocean disposal
actions, it is important for Ocean Dumping Coordinators to work closely with their Regional NEPA
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Coordinator so they are informed of Public Notices about NEPA documents and of other concerns,
issues, or alternatives being raised by other EPA offices regarding the disposal alternatives. Tlie only
formal coordination with the USAGE under NEPA is EPA's review of the draft, final, and supple-
mental EISs. Other potential opportunities for coordination with the USAGE during NEPA are
during the following.
• Scoping process
• Review of the preliminary DEIS, if prepared
• Public hearing on the DEIS, if held
EPA's formal review under Section 103 begins with the issuance of the Public Notice of a proposed
permit. The USAGE shall provide all of the information listed in 33 CFR 325.3 (see Table 2-1) as
part of the Public Notice; this includes the information listed hi 40 CFR 225.2.
In conducting their own evaluation of a permit, the USAGE assesses the potential environmental
impact of the proposed activity. In accordance with 40 CFR 225.2(c), the Regional Administrator
makes an independent evaluation of the proposed dumping m accordance with the criteria at 40 CFR
227. The USAGE should provide all information used by the District in their evaluation (e.g., results
of physical, chemical, and biological tests of the dredged material proposed to be dumped and results
of prior field monitoring studies/surveys of the dredging area). If necessary, EPA may request -
additional information from the USAGE in order to conduct its review [40 CFR 225.2(b)], such as
the following.
• Results of prior field monitoring studies/surveys of material shown to be similar to the
material to be dumped
• Any other type of existing data from the files of the USAGE or any other source used in
the evaluation
If sufficient information is not available for the EPA to conduct an evaluation, 40 CFR 227.5(c)
requires that ocean dumping may not be approved by EPA or the USAGE.
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However, it is advantageous for both EPA and the USAGE to expand their coordination opportunities
beyond these formal review requirements in the interests of efficient permit processing. If EPA raises
issues that have not been addressed by the USAGE hi their review, lengthy delays, due to the need
for additional sampling, testing, and/or evaluations, may result. Again, it is important to emphasize
the need for EPA Regional Ocean Dumping Coordinators to ensure their involvement and coordina-
tion early in the USAGE permit review process. If the Regional Administrator might determine that
the proposed activity is not hi compliance with the criteria at 40 CFR 227 and 228, then the Regions
should pursue all avenues for cooperation between the EPA and the USAGE prior to the EPA
Regional Administrator's final determination. After submitting EPA's Finding of Noncompliance to
the USAGE, all remaining coordination with the USAGE occurs at the EPA Administrator's level.
Other opportunities for informal coordination with the USAGE include the following.
• Preapplication consultation (if held)
• Review of sampling plans
• Public hearings for the Public Notice for the permit (if held—optional EPA participation)
• EPA review of draft permit for concurrence (if appropriate)
Where necessary to ensure that disposal activities are carried out in accordance with the EPA criteria
at 40 CFR 227 and 228, EPA Regions and USAGE Districts should work together to develop the
permit conditions needed to resolve EPA concerns. The Region may wish to review the final permit
prior to public release to ensure that all special conditions and other relevant factors have been
included. Actions such as conditional concurrences should be limited to specific cases.
2.3 Planning and Implementation of Civil Works Projects
The evaluation of Civil Works project dredged material that is proposed for ocean disposal is similar
to the evaluation of USACE-permit dredged material. Section 103(e) of MPRSA provides that the
Secretary of the Army may, in lieu of permit procedures, issue regulations for Civil Works projects
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that apply the same criteria, procedures, and requirements as those for ocean disposal permits for
dredged material. This subsection describes the planning process for Civil Works projects, based on
the most recent guidance found in the USAGE'S "Planning Guidance Notebook" (1990a); EPA
Regions are encouraged to refer to the Notebook as well as to the regulations (33 CFR 335-338) for
more information about these processes. However, the process by which projects are evaluated is
continuously evolving as more sophisticated methods of evaluation are developed. Moreover, EPA
Regions should be aware that EPA and the USAGE are holding discussions to improve methods of
interagency coordination and communication during the planning of Civil Works projects.
The USAGE developmental process for Civil Works projects has five phases comprising a series of
studies to be undertaken prLr to prelect implementation. As the USAGE progresses through the
phases, the analysis of the project and the studies becomes more detailed and sophisticated. The
phases, in order, are the Reconnaissance Phase, the Feasibility Phase, the Preconstruction Engineering
and Design Phase, the Real Estate Acquisition Phase, and the Construction Phase. Planning studies
are the product of the first two phases, the Reconnaissance and Feasibility phases. The studies
developed under each phase are reviewed by a study management team, a multidisciplinary group that
consists of at least one representative of the affected functional elements in the District (i.e.,
Planning, Engineering, Environmental, Construction, Operations, Real Estate, Counsel, etc.).
Whenever it becomes apparent that implementation of the project is not likely, the District Engineer
prepares a negative report and notifies the Division Engineer.
Civil Works projects may be conducted under individually authorized studies and programs or under
the continuing authorities program by Congress. There are two different types of Congressional
action: authorization and appropriation. An authorization provides a Federal agency with the
statutory authority to conduct an activity. An appropriation funds the activity. To get started,
individual projects must receive both a study authorization and an appropriation. Some smaller
projects with specific purposes can be funded without specific Congressional authority through the
continuing authorities program. The Congress provides the Secretary of the Army with the authority
under six statutes to plan, design, and construct six types of water-resource improvements without
specific Congressional authorization. The type of projects qualifying under these authorities, as well
as the funding limitations, is listed in Table 2-2.
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Table 2-2. Continuing Authority Projects
[Source: Digest of Water Resources Policies and Authorities (USAGE 1989)]
Authority
Section 14
1946 FC Act b
Section 103
1962 R&H Act b
Section 107
1960 R&H Act b
Section 111
1968 R&H_Act b
Section 205
1948 FC Act b
Section 208
1954 FC Act b
Type of Project for which Used
Streambank and Shoreline Protection
for Public Facilities
Small Beach Erosion-Control Projects
Small Navigation Projects
Mitigation of Shore Damage due to
Federal Projects
Small Flood Control Projects
Snagging and Clearing for Flood
Control
Statutory Limit of Federal
Costs per Project tt
$500,000
$2,000,000 c
$4,000,000 d
$2,000,000 c'e
$5,000,000
$500,000
* Initial implementation, include Federal share of preauthorization study costs.
b As subsequently amended.
c Includes actual costs for subsequent period nourishment, if part of the adopted project, as
well as for initial implementation.
d Also, the Federal share of total costs (initial implementation costs plus the capitalization
value of future maintenance costs) may not exceed 2.25 times the initial Federal cost or
$4.5 million, whichever is greater.
e A project involving Federal costs in excess of $2 million will be transmitted to Congress
for specific authorization.
FC: Flood Control
R&H: Rivers and Harbors
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The following discussion describes the typical steps in the different planning phases of both types of
Civil Works projects based on the Planning Guidance Notebook (USAGE 1990a). For convenience,
proposed Civil Works projects are discussed in terms of those specifically authorized by Congress or
those funded under continuing authorities. Like Section 2.2, end products (studies or other types of
supporting documents) of the USAGE are listed under each step, and EPA guidance on coordination
is highlighted in bold and summarized after each subsection.
2.3.1 Individually Authorized Projects
The steps in the planning process for projects specifically authorized by Congress are as follows (see
Figure 2-4).
1. Inquiry Received
The process for new USAGE projects usually begins with a request from either local citizens
and/or Congressional representatives for a study to address a water-resource problem.
2. Planning Study Authorized by Congress
3. Funding for Reconnaissance Study Received by USAGE
The Reconnaissance Phase of the project begins upon the receipt of funding. The study and
report accomplish the following four tasks.
« Defines the water resource problems and opportunities and identify potential solutions
» Determines whether to proceed to the next phase of planning, the Feasibility Phase, based
on a preliminary appraisal of consistency with Army policies, costs, benefits, and
environmental impacts of the identified potential solutions
• Estimates the cost and time necessary to complete the Feasibility Phase
• Assesses the potential local sponsor's level of interest and support in the identified
potential solutions
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Inquiry Received
Reconnaisance
Report Prepared
H
H
Planning Study
Authorized by
Congress
H
Funding for
Study Received
byCOE
Reconnaisance
Study Conducted ]
(12-18 Months)
Distrfoute Public
Notice
Funding for
Feasfofl'rty Study
Received
Feasfoilrty Sf j
Conducted
(36 Months)
Prepare NEPA
Documentation
Feasibility Report |
Prepared
fConj
iProji
Congress Authorizes
Project Construction
H
Report Forwarded to
Congress
Preconstruction
Engineering and
Design
}
Distribute
Public Notice
Construction of Project!
Initiation of Study|
Announced
Reconnaisance
Phase
(Phase I)
Feasibility
Phase
(Phase II)
Review by Local
Sponsors, COE,
and OMB
EPA
Review
(Figure 2-3)
Figure 2-4. USACE Civil Works Project Planning Process
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4. Initiation of Study Announced
When a study is started, the Planning Districts are encouraged to inform the public, including
EPA. As stated in the Planning Guidance Notebook (1990a), the USAGE should announce
the study by mailing an announcement, at a minimum, to all potentially interested parties and
using other media methods (such as television, newspapers, etc).
5. Reconnaissance Study Conducted
The USAGE has a general deadline of 12 months to complete a Reconnaissance Study, which
is a preliminary examination of the proposed project. Extensions for as long as 18 months
are granted under unusual conditions. The Federal Government pays the cost of the entire
study.
6. Reconnaissance Report Prepared
Table 2-3 outlines the general content of the Reconnaissance Report. The most important
features of the report are the recommendation and plan formulation sections. The recommen-
dations suggest whether or not to proceed with the Feasibility Study, based on the preliminary
assessment of Federal interest, and if solutions are hi concert with current Army policies and
budget priorities. The section addressing plan formulation discusses alternative plans,
including an evaluation and screening of alternative plans on significant environmental
resources hi the study area, local sponsors' views and preferences, and results of completed
technical studies regarding the economic, environmental, and engineering aspects of the
project.
For major Civil Works projects, the USAGE assigns a life-cycle project manager to coordi-
nate the entire planning process for a project from the commencement of planning to
completion. Upon completion of the Reconnaissance Study, a Reconnaissance Review
Conference may be held by the USAGE to ensure that the report is consistent with current
policies and budgetary priorities, prior to the release of the report to the public and prior to
Division approval of the Reconnaissance Report and the Feasibility Cost Sharing Agreement
(FCSA) between the USAGE and the local sponsor. The FCSA details the Feasibility Study
costs to be borne by the USAGE and the local sponsors. Local sponsors provide 50% of the
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Table 2-3. Reconnaissance Report Content
[Source: Planning Guidance Notebook (USAGE 1990a)]
1. Study Authority. Include the full text of principal resolutions) or other authority.
2. Study Purpose and Scope. State whether the report is an interim or final response to study
authority. State that the Reconnaissance Phase is to make a determination whether the planning
should proceed further based on a preliminary appraisal of the Federal interest and if potential
solutions are in concert with current policies and budgetary priorities.
3. Concise Discussion of Prior Studies, Reports, and Existing Water Projects.
4. Plan Formulation.
a: Assessment of water and related land resource problems and opportunities specific to the
study area:
(1) Existing conditions;
(2) Expected future conditions; and
(3) Concise statement of specific problems and opportunities.
b. Planning objectives and constraints.
c. Alternative plans:
(1) Measures available to address identified problems and opportunities;
(2) Reasons for selecting and combining measures to formulate alternative plans that meet
identified problems and opportunities;
(3) Preliminary evaluation and screening of alternative plans, including a preliminary •
determination of likely effects on significant environmental resources in the study area;
(4) Description and discussion of the likely array of alternatives to carry into the Feasibili-
ty Phase, including potential mitigation measures; and
(5) Non-Federal sponsors' views and preferences.
5. Preliminary Financial Analysis. Assessment of the level of interest in and support of potential
solutions. A letter from the sponsor indicating an understanding of the cost-sharing requirements
for implementation and the financing options available should be included.
6. Summary of Study Management, Coordination, Public Views, and Comments.
7. Recommendations. Recommend whether to continue to a Feasibility Study or not, based on
preliminary appraisal of consistency with Army and budgetary policies.
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costs. At the same time, the USAGE prepares an Initial Project Management Plan, describing
the work and schedule required as part of the study for project evaluation, which in turn
forms the basis for estimating the total study cost and local share. This document is added as
an appendix to the FCSA.
END PRODUCTS: Reconnaissance Report
Feasibility Cost Sharing Agreement
Initial Project Management Plan
7. Distribute Public Notice
The Division Engineer issues a Public Notice, following Washington-level approval, to inform
the public of a report's availability and recommendation.
8. Funding for Feasibility Study Received
If a favorable recommendation for the project is given in the Reconnaissance Report, further
funding is sought. The costs associated with this evaluation are shared equally by the USAGE
and the sponsor. Up to one-half of the local sponsor's contribution is cash and the remainder
may be provided by in-kind services.
9. Feasibility Study Conducted
Upon receipt of funding, the USAGE proceeds to the second and final step of the planning
phase, the Feasibility Phase, which is usually completed within 36 months. The purpose of
this phase is to investigate and recommend alternative solutions to water-resource problems.
The end product is a Feasibility Report that presents the results from both study phases.
10. Prepare NEPA Documentation
Documentation presenting the results of the NEPA evaluation is required at the same tune that
the Feasibility Report is prepared. The document, either an EIS or an EA, may be a separate
document, combined with or bound within the Feasibility Report, or integrated into the text of
the report. The EIS should be integrated into the text of the report, unless complex environ-
mental impacts preclude this alternative.
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11. NEPA Coordination
The report is submitted for a 90-day State and Federal agency review under NEPA. During
the NEPA review, EPA Regional Ocean Dumping Coordinators have an opportunity to review
all of the dredged material disposal alternatives considered hi the Feasibility Report. The
EPA Regional Ocean Dumping Coordinators will have another opportunity to conduct the
review required under Section 103 of MPRSA later hi the planning process during the
comment period for the Public Notice issued prior to project construction.
END PRODUCTS: Draft EIS
Final EIS
12. Feasibility Report Prepared
The Feasibility Report follows a format similar to the Reconnaissance Report (see Table 2-4).
As noted hi Step 11, the Feasibility Report is usually contained within NEPA documentation.
The basic principles for the USACE's selection of a preferred alternative are found hi the
Economic and Environmental Principles for Water and Related Land Resources
Implementation Studies [Presidential Memorandum (1983); Appendix M]. The principles
define the Federal objective of water and related land resources project planning as those
activities that "contribute to national economic development (NED) consistent with protecting
the Nation's environment pursuant to national environmental statutes, applicable executive
orders, and other Federal planning requirements." During the planning process, alternative
plans that contribute to the Federal objective should be systematically formulated. If ocean
disposal is one of the alternatives under consideration, the USACE evaluates the ocean
disposal activity in accordance with requirements of the MPRSA, using the EPA criteria (40
CFR 227 and 228). Where ocean dumping is determined to be necessary, the USACE, to the
fullest extent practical, identifies and evaluates alternatives in the Feasibility Report, as
required in 40 CFR 228. An evaluation is made as early as possible hi the process so that
other alternatives can be compared.
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Table 2-4. Feasibility Report Content
[Source: Planning Guidance Notebook (USAGE 1990a)]
1. Study Authority. Include the full text of principal resolution(s) or other authority.
2. Study purpose and scope. State whether the report is an interim or final response to
study authority.
3. Concise Discussion of Prior Studies, Reports, and Existing Water Projects.
4. Plan Formulation. (To include the results of public involvement.)
a. Assessment of water and related land resource problems and opportunities specific
to the study area:
(1) Existing conditions;
(2) Future without project conditions; and
(3) Concise statement of specific problems and opportunities.
b. - Planning constraints.
c. Alternative plans:
(1) Measures available to address identified problems and opportunities;
(2) Reasons for selecting and combining measures to formulate alternative plans
that meet identified problems and opportunities;
(3) Screening of alternative plans; and
(4) Reformulation of alternative plans, as necessary.
d. Presentation and evaluation of final array of alternative plans.
e. Trade-off analyses.
f. Selection of the final plan, to include rationale for selection and a discussion of
sensitivity analysis and risks and uncertainties.
(continued)
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Table 2-4. Feasibility Report Content (Continued)
5. Description of the Selected Plan.
a. Plan components, including mitigation.
b. Design and construction considerations.
c. Operation and maintenance considerations.
d. Plan accomplishments.
e. Summary of economic, environmental, and other social effects.
6. Plan Implementation.
a. Institutional requirements.
b. Division of plan responsibilities, including local cooperation requirements and other
non-Federal responsibilities.
c. Views of non-Federal sponsor(s) and any other agencies having implementation
responsibilities.
7. Summary of Coordination, Public Views, and Comments.
8. Recommendations. (Including disclaimer.)
The development of alternative plans must take into consideration four separate accounts:
NED, environmental quality (EQ), regional economic development (RED), and other social
effects (OSE). These four components are designed to comply with the requirements of
NEPA. The NED identifies adverse and beneficial effects to the economy and includes the
cost of goods and services, the changes hi net income, the cost of most likely alternatives, the
use of otherwise unemployed or underemployed labor resources, and the actual or simulated
market prices. The EQ includes significant effects on three environmental quality attributes:
ecological, cultural, and esthetic. The impact of the project on regional income and employ-
ment is examined in the RED, while the OSE examines community impacts; life health and
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safety impacts; long-term productivity of the projects; and displacement effects on people,
businesses, and farms.
In addition to formulating a plan that reasonably maximizes NED, other plans may be
formulated which reduce NED benefits hi order to further address other concerns not fully
addressed by the NED plan. In presenting the NED plan, all reports must include appropriate
information and data on a sufficient number of alternatives to define the lower and upper
portion of the net NED benefit curve. It is important that all environmental mitigation and
losses are included in the final array of alternatives before the NED plan is selected, rather
man afterward. The alternative plan with the greatest net national economic benefit consistent
with protecting the Nation's environment is tc be selected as the NED plan, unless the
secretary of a department or head of an independent agency grants an exception when there is
some overriding reason for selecting another plan, based on Federal, State, local, or
international concern.
The NED plan must be presented m detail hi the Feasibility Report and carried forward
through for comparative purposes, even if it is not the recommended plan for implementation.
The NED is the Federally supportable plan. If there is no such plan, the USAGE prepares a
negative report. It is beneficial to both agencies for Regional EPA Ocean Dumping
Coordinators to be actively involved in the review process so that all costs have been
accounted for and all alternatives have been considered as early as possible.
13. Review by Local Sponsors, USAGE, and OMB
Upon completion of the draft Feasibility Report, a Feasibility Review Conference is held to
seek Washington-level commitment to the project. The local sponsor and interested Federal
and State agencies are invited to attend.
Once the draft Feasibility Report is approved by the Washington level, a Public Notice is
prepared to announce completion of the report and its submission for a Washington-level
review, i.e., review by local sponsors, USAGE Headquarters, and the Office of Management
and Budget. The notice provides a 30-day comment period. Another major document
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produced during this phase is the project management plan, which describes the project
schedule and cost estimate.
It is important for EPA Regions to realize that the Feasibility Report also should address
future O&M activities. Therefore, when EPA reviews the Feasibility Report relative to
ocean dumping, consideration should be given to foreseeable conditions that may arise
during preconstruction engineering and design (PED) and O&M of the project, which
may have been overlooked in the Feasibility Report. For example, Regions may wish to
recommend sediment testing and schedules or specify appropriate testing after spills as
requirements for future O&M activities.
END PRODUCTS: Feasibility Report
Project Management Plan
14. Feasibility Report Forwarded to Congress
The final Feasibility Report, with a recommendation, usually is provided to the Congress as
supporting documentation for the initial construction authorization. While parties are
reviewing the Feasibility Report, the District Engineer may initiate the PED. Favorable
consideration of the project by the Congress may result hi the Congress passing a bill
containing an authorization for initial construction of the project.
15. Congress Authorizes Project Construction
By authorizing construction of the project, Congress has determined that the project is hi both
the Federal interest and public interest. After the project is authorized, Congress must also
pass a bill containing appropriations (funding) for the project.
Changes hi current projects (commonly called post-authorization changes) require Congressio-
nal approval if the change exceeds the authorized funding level by 20%. In addition, any
changes in the purpose of the project, such as the addition of fish and wildlife mitigation
measures, and/or deepening of navigation channels, require Congressional approval. Other
changes, provided that the scope of the project is not increased more than 20%, can be made
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at the discretion of the USAGE. Should any changes impact the environment, a supplemental
E1S is required.
END PRODUCTS: Post-Authorization Report (if warranted)
Revaluation Report Of warranted)
Supplemental E3S Of warranted)
16. Preconstruction Engineering and Design
In the FED phase, all of the detailed, technical studies and design needed to begin construc-
tion of the project are completed. The FED phase usually overlaps with the end of the
Feasibility Phase, beginning soon after the Division Engineer's Public Notice is issued. This
phase usually requires about 3 years to complete. The costs are shared between the USAGE
and the local sponsor in the same proportions as me costs of construction. The major
documents prepared during this phase are the design memorandum, which includes the results
of technical engineering studies and design; the plans and specifications, which are detailed
drawings and instructions for building the project; and the Local Cooperation Agreement
(LCA), an agreement with local sponsors that outlines financial and operations and mainte-
nance responsibilities of the USAGE and local sponsors.
The LCA is often negotiated at the same tune that Congressional construction appropriations
are sought. Either the local sponsor or the USAGE accepts responsibility for operating,
maintaining, repairing, and rehabilitating the project once the project is completed. Opera-
tions and maintenance, repair, or rehabilitation of a project are undertaken by either the
USAGE or the local sponsor, depending on the terms of the LCA and purposes of the project.
END PRODUCTS: Design Memorandum
Plans and Specifications
Local Cooperation Agreement
17. Distribute Public Notice
For a Civil Works project, the Public Notice for proposed ocean disposal of dredged material
may be issued coincident with other required notices, such as the Notice of Intent to Prepare
an EIS or Notice of Availability of an EIS, or issued independently. The required content of
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a Public Notice issued in connection with the proposed ocean disposal of dredged material
from Civil Works projects is in accordance with 33 CFR 337.1 (a) and is outlined in Table 2-
5. An example of a Public Notice for a proposed Civil Works project is found in Appendix I.
END PRODUCT: Public Notice
18. EPA MPRSA Review
As with proposed permits, the Regional Administrator reviews the information contained in
the Public Notice and any information provided to determine whether the disposal activity
complies with the criteria found in 40 CFR 227 and 228. Figure 2-3 illustrates the proce-
dures for EPA's revit: of the proposed ocean disposal activity. Evaluation and/or testK.e of
the proposed dredged material is best undertaken after final PED has delineated the exact
area. For guidance in conducting this review, refer to Section 3.0, Technical Evaluations of
Proposed Disposal Action. After completing the review, the EPA Regional Administrator
informs the District Engineer hi writing about whether the activity meets EPA criteria (40
CFR 227 and 228) or not. If the EPA can construct "special conditions" that would bring
the proposed discharge into compliance with the EPA criteria (40 CFR 227 and 228),
then these conditions should be recommended to the District Engineer as conditions
necessary to come into compliance.
19. Construction of Project
The Construction Phase begins after the Congress has appropriated funds specifically for the
initiation of construction and these funds are allotted to the local USAGE District. Projects
may be reevaluated during construction should additional concerns arise. If warranted, a
Reevaluation Report may be prepared. In cases where substantial changes to the project have
been made, another EIS may be prepared depending on the amount and type of project
changes.
END PRODUCTS: Reevaluation Report Of warranted)
Supplemental EIS Of warranted)
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Table 2-5. Checklist for Public Notice Information
for Civil Works Projects under MPRSA [33 CFR 337.1 (a)]
D Name and location of the project and proposed disposal site
D A general description of the proposed project and a description of the estimated type, composition,
and quantity of the dredged material to be discharged or disposed of in the ocean, the proposed time
schedule for the dredging activity, and the types of equipment and methods of dredging and
conveyance proposed to be used
D A sketch showing the location of the project, including depth of water in the area and all proposed
disposal sites
D The nature, estimated amount, and frequency of known and anticipated dredging and discharge to. be
conducted by others
D A list of Federal, State, and local agencies with whom the activities are being coordinated
D A statement concerning a determination of the need for/or availability of an EIS.
D Any other available information that may assist ir nested parties in evaluating the likely impact of
the proposed activity, if any, on factors affecting the public interest
D The comment period (generally 30 days but not less than IS days)
D A statement that any person may request, in writing, within the comment period specified in the
notice, that a public hearing be held to consider the application; that a request for a public hearing
state the particular reasons for holding a public hearing
D A description of the activity's relationship to the baseline from which the territorial sea is measured
D A statement on the status of State water-quality certification for the proposed dredging under Section
401 of the Clean Water Act
D A statement (if appropriate) on whether or not the proposed disposal of dredged material will be
undertaken in a manner consistent, to the maximum extent practicable, with an approved State CZM
program and sufficient information to support the consistency determination
D A statement of the District Engineer's current knowledge on impact of the proposed activity on
historic properties
D A statement of the District Engineer's current knowledge on impact of the proposed activity on
endangered species
D A statement on the various evaluation factors on which decisions are based
D Name or title and address of the USAGE employee from whom additional information concerning the
application can be obtained
D Signature of the District Engineer or his designated replacement
D A statement as to whether the proposed disposal site has been designated by the Administrator, EPA,
pursuant to Section 102(c) of the MPRSA; if the site has not been designated by the Administrator, a
description of the characteristics of the proposed disposal site and an explanation as to why no
previously designated site is feasible
D A brief description of known dredged material discharges at the proposed site
D Existence and documented effects of other authorized discharges of dredged material that have been
made in the disposal area (e.g., heavy-metal background reading, organic-carbon content)
D Estimate of how long disposal would continue at the site
D Information on the characteristics and composition of the dredged material (results of dredged
material testing and evaluation)
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2.3.2 Continuing Authorities Program
The process for projects under continuing authorities generally follows the same planning process for
other Civil Works projects, with the following exceptions.
• Projects under continuing authorities skip the steps to obtain Congressional authorizations
or appropriations. Instead, the project proceeds when the District Engineer receives
funding from USAGE Headquarters through the Division.
• During the Feasibility Phase, the USAGE prepares a Detailed Project Report, rather than
a Feasibility Report.
• The Continuing Authorities Fact Sheet is ^ised as a review document and serves zb the
primary source of study and/or project-specific information.
• Whenever a significant question/issue arises, the Division Engineer consults with
Headquarters for resolution of the issue, rather than holding an Issue Resolution Confer-
ence.
233 EPA Coordination Review for Civil Works Projects
This subsection summarizes the procedures hi terms of EPA's role hi the project-evaluation process.
Throughout the USAGE'S process for evaluating a Civil Works project, there are several points when
EPA may communicate their concerns, recommend further analysis, or suggest project modifications.
As with the permitting process, EPA has two opportunities for formal coordination with the USAGE:
the review under NEPA and the review of USAGE evaluations under Section 103 of MPRSA. To
ensure participation hi the NEPA review of potential ocean disposal actions, it is important for Ocean
Dumping Coordinators to work closely with their Regional NEPA Coordinator so they are informed
of Public Notices about NEPA documents and Feasibility Reports and of other concerns, issues, or
alternatives being raised by other EPA offices regarding the disposal alternatives. The only formal
coordination with the USAGE under NEPA is EPA's review of the draft, final, and supplemental
EISs and Feasibility Report. Other potential opportunities for informal coordination with the USAGE
during NEPA are during the following.
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• Scoping process
• Review of the preliminary DEIS
• Public hearing for the EIS, if held
EPA's formal review under Section 103 begins with the issuance of the Public Notice following the
initiation of the PED Phase. In addition to the Public Notice and the Feasibility Report, the USAGE
prepares many other documents during the planning process, some of which contain information that
would assist EPA Regions in their evaluation of the proposed project under NEPA or MPRSA,
depending on the timing of these reviews. In addition to examining the Feasibility Report and/or EIS,
the Regions and Districts may wish for EPA's participation in the review of the following docu-,?nts,
which EPA is not required to review, to identify issues and other alternatives early hi and throughout
the .planning process.
• Sampling plans
• Draft Feasibility Report1
• Draft Reconnaissance Report
• Reconnaissance Report
• Engineering and Design Reports, such as Revaluation Reports (or Detailed Project
Report, in the case of projects funded under Continuing Authorities)
• General Design Memorandum
• Feasibility Cost-Sharing Agreement
• Initial Project Plan
• Project Management Plan
• Design Memorandum
'or Detailed Project Report, in the case of projects funded under the continuing authorities program.
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In the interest of improving interagency coordination on planning studies and trying to avoid issues
arising very late in the planning process, the Planning Guidance Notebook (1990a) provides the
following guidance regarding interagency coordination.
(1) Appropriate Federal and State agencies shall be invited to participate in the Reconnais-
sance Review Conference and the Feasibility Review Conference.
(2) Appropriate Federal and State agencies shall participate in the development of the Initial
Project Management Plan and the Project Management Plan.
(3) Feasibility cost-sharing agreements shall have input from the appropriate Federal and State
agencies.
(4) Federal agencies shall be invited to be cooperating agencies as defined under NEPA.
(5) All issues involving other agencies (concerns or nonagreement) should be raised and
discussed hi a separate section of the Memorandum for the Record (MFR) of the
Reconnaissance Review Conference or Feasibility Review Conference. The Memorandum
summarizes major points of discussion, decisions, remaining issues, guidance, and any
other appropriate points brought out during the conference. Unresolved issues will be
pursued at the Washington level.
Under 40 CFR 227.5(c), dredged material that is insufficiently described must not be approved for
ocean disposal by EPA or the USACE. If the Regional Administrator determines that the proposed
activity is not in compliance with the EPA criteria at 40 CFR 227 and 228, then the Regions should
pursue all avenues for cooperation between the EPA and the USACE prior to the EPA Regional
Administrator's final determination. After submitting EPA's Finding of Noncompliance to the
USACE, all remaining coordination with the USACE occurs at the EPA Administrator's level.
When issues arise, EPA Regions and USACE Districts should work together to develop the project
conditions to ensure compliance with the criteria at 40 CFR 227 and 228. The Region may wish to
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review the final project specifications to ensure that all special conditions and other relevant factors
have been included.
2.4 USAGE O&M Activities
O&M dredging activities refer to the day-to-day management, repair, and rehabilitation of existing
Congressionally authorized USAGE projects. Completed USAGE projects are operated and
maintained by either the sponsor or the USAGE, depending upon the project purposes and the terms
of the local cooperation agreement. The USAGE regulates locally sponsored O&M activities under
33 CFR 320-330. The USAGE regulates O&M activities conducted by USAGE under 33 CFR 335-
338. The Feasibility Report for the project should describe all USAGE O&M activities related to the
project.
An example of a Public Notice for an O&M activity is given in Appendix J. As explained in the
preamble for 33 CFR 337.1, Public Notices for ocean disposal of O&M sediments from Civil Works
projects are normally issued for an indefinite period and are not reissued unless changes in the
disposal plan warrant reevaluation under Section 103 of MPRSA. It is only when there are significant
changes in the O&M activities of a project that the USAGE must issue a Public Notice and open the
administrative record. The Public Notice describing the activity is published at the earliest practicable
date. As long as the Public Notice accurately describes the dredging and disposal activity, a new
Notice need not be issued. Often, there are circumstances in which O&M activities that are otherwise
routine or minor must be performed more quickly than would be possible if another Public Notice
was issued. In such cases, the USAGE can determine that it is unnecessary to issue a Public Notice
or to employ the emergency procedures of Section 337.7.
The USAGE NEPA regulations at 33 CFR 230 contain guidance in making this determination. In
relation to operations and maintenance, certain activities are excluded from NEPA, specifically
activities at completed USAGE projects such as routine operation and maintenance, and minor
maintenance dredging using existing disposal sites. As a general rule, the regulations require EISs for
proposed changes in projects that increase substantially in size or add additional purposes and
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proposed major changes in the operation and maintenance of completed projects. EAs are usually
sufficient for projects recommended for approval under the continuing authorities program, including
small navigation projects, small beach-erosion control projects, and mitigation of shore damage
attributable to navigation projects; and, for the O&M of other types of projects, changes in environ-
mental impacts that were not considered in the project EIS or EA. The selection of a preferred
alternative for an O&M activity is called the Federal standard. As defined by 33 CFR 335.7, the
Federal standard means "the dredged material disposal alternative or alternatives identified by the
Corps which represent the least costly alternatives consistent with sound engineering practices and
meeting the environmental standards established by the 404(b)(l) evaluation process or ocean dumping
criteria." The selection of the Federal standard differs from that of the NED plan for Civil Works
projects in that selection of the NED allows for offsetting project costs against benefits related co _:.
project purpose.
Upon completion of all required documentation, the USAGE signs the SOF for the proposed O&M
activity. This signifies that the USAGE may proceed with advertisement for a contract. Often, for
routine recurring O&M projects, the USAGE advertises for bids during the compliance process
because bid advertisement may take 2 to 6 months to complete. However, the USAGE should not,
except under unusual circumstances, open bids before completion of all environmental compliance
items and signing of the SOF.
As prescribed by 33 CFR 337.10, the contracting officer is responsible for ensuring that special
conditions resulting from the compliance process are included in project specifications and that
contractors are aware of their responsibilities for compliance with the terms and conditions of State
certifications and other conditions in the SOF.
2.4.1 EPA Coordination Opportunities
The USAGE procedures for Public Notices and determination follow the same procedures for other
Civil Works projects found in 33 CFR 335-338. Current EPA and USAGE guidance suggests that
activities be reevaluated once every 3 years. This is a general guideline and the need to reevaluate an
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activity depends on dredged material and site-specific conditions. In areas where the dredged material
is relatively distant from known sources of pollutants and/or areas where sediments have historically
had low levels of associated contaminants, the reevaluation interval may be longer. Dredging in
highly industrialized areas or in urban areas may require more frequent evaluation. For other
situations, such as spills, reevaluation should take place before any O&M dredging.
Prior to each O&M dredging episode in which evaluation/testing of sediments might be required,
District and Regional personnel should cooperatively determine testing needs and evaluate testing
results. If ocean disposal of the dredged material is proposed, the independent evaluation of the
proposed discharge by the Regional Administrator is warranted.
2.4.2 Funding "
As a general rule, the USAGE provides total funding for maintaining completed navigational
improvements and commercial navigation projects, with the exception of deep-draft harbors. In the
case of deep-draft harbors, the local sponsor must provide 50% of the incremental O&M costs for
depths greater than 45 ft. Local sponsors are responsible also for the costs of all public berthing
areas, public terminals, wharves, transfer facilities, bulkheads, spillways, and embankments related to
the project. The costs for recreational dredging projects generally are paid by the local sponsor. The
USAGE also provides O&M services in navigational areas outside the project area to other Federal
agencies on a reimbursable basis.
Portions of O&M funding are generated through tax revenues. Inland dredging and various
construction projects are financed in part through an inland waterways fuel tax, an excise tax on fuel
used by certain commercial cargo vessels, and a harbor-maintenance tax, which is levied on the value
of commercial cargo loaded or unloaded hi any port that had received Federal funding for construc-
tion, maintenance, or operation since 1977. The amount of this ad valorem tax is 0.125% of the
cargo value. Revenues from both of these taxes are placed in the Inland Waterways Trust Fund and
the Harbor Maintenance Trust Fund, respectively. In the case of coastal dredging projects, funds
may be appropriated from the trust for as much as 100% of the O&M costs. The remaining money is
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provided in the Federal budget under the general revenues appropriation. Unless specifically limited
by the Congress, the USAGE is permitted to reallocate funds between O&M items in the budget on a
case-by-case basis, depending on the urgency, justification, and availability of funds.
2.5 USAGE Procedural Difference Between Civil Works Projects and Permits
The primary difference between the two planning processes in terms of EPA coordination is the
length of elapsed time between EPA's review under NEPA and MPRSA. In Civil Works projects,
the initial point of EPA interaction is during EPA's review of the NEPA documentation in the
Feasibility Phase. The next p,: * for formal EPA interaction is EPA's review under MPRSA thi.:
occurs following the issuance of a Public Notice prior to project construction. Several years may pass
between these two" points, and several design/engineering modifications may have been made, and
staff involved in early review may no longer be with either agency. In contrast, the time taken to
process the permit application is much shorter, so there is less chance of changes hi staff or technical
understanding.
2.6 EPA/USAGE Coordination Guidance
This subsection provides procedural guidance to EPA Regions in coordinating with the USAGE hi the
planning of permitted actions and Civil Works projects. The USAGE consists of 11 Divisions and 36
Districts; as a result, EPA Regions usually interact with more than one USAGE Division/District and
vice versa. There is a strong need among EPA Regions and USAGE Districts/Divisions to build an
understanding of data and information requirements so that the Regions and Districts avoid unneces-
sary delays caused by unaddressed or unresolved issues. Establishing a consistent level of expectation
for data with the USAGE Districts will benefit both agencies by creating a predictable process of
coordination, as well as giving the two agencies a greater understanding of each other's concerns. As
the agencies begin to understand each other's concerns, future delays in the planning process can be
avoided because each can anticipate actions required by the other. To facilitate this, some EPA ,
Regions are working with their respective USAGE Districts and Divisions to incorporate planning
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procedures in their regional Memorandum of Understanding. They are also developing regional
agreements and manuals as part of the implementation of the Green Book guidance about expectations
of data requirements. Naturally, the number of, samples and level of testing depend on specific
situations, but it is useful to establish uniform testing requirements for similar circumstances.
The best approach for avoiding future conflicts is early involvement and strong communication. It is
highly recommended that EPA Regions participate in the USAGE'S planning process and express their
concerns as early as possible. In the case of permits, consultation would occur in the preapplication
meeting (if held) or the Public Notice period. For projects, the earliest opportunities may arise in the
Reconnaissance Review Conference, Feasibility Review Conference, or review of the Feasibility
Report. To do so, EPA Regie TC encouraged to work with their District counterparts to obtain
active participation in these activities.
2.6.1 Communication Guidelines
At present, EPA Regions use a wide variety of communication mechanisms to integrate concerns
about environmental quality into the USAGE evaluation process. Lack of early and effective
communication can result in the need for further data collection and analysis in late stages of the
USAGE planning process, especially for Civil Works projects, where many years pass between the
original environmental assessment and project completion. Late demands on the USAGE, due to lack
of early coordination, may lead to increased frustration and tension between EPA Regional staff and
USAGE Division/District personnel and can increase project costs.
The legislative history of the MPRSA encourages a cooperative approach in ocean-disposal projects
for dredged material. As stated in the House Report accompanying H.R. 9727, "the Administrator
and the Secretary are expected to consult together closely at all stages." In many Regions, there are
excellent examples of good EPA Region - USAGE District relationships, many of which were built
over time, based on trust, a strong understanding of the USAGE, and familiarity with EPA expecta-
tions.
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EPA Regional staff should ensure that they are voicing their concerns to the appropriate staff within
the USAGE. Environmental concerns should be directed to the USAGE environmental staff who act
as counterparts to EPA's Regional Ocean Dumping Coordinators. Testing questions should be
directed to the Sediment Testing Specialists. These two contacts should be able to address the
majority of EPA's questions. Procedural inquiries should be directed to the regulatory office for
permits, the planning office for proposed Federal actions, and the Navigation/Dredging office for
O&M activities. For major Civil Works projects, Regions should coordinate with the USAGE project
life-cycle manager or team project managers and consider assigning a staff member to act as an EPA
equivalent to these managers.
Moreover, EPA Regional staff are encouraged to incorporate different mechanisms for communication
and coordination in their field agreements (Memoranda of Understanding, regional Green Book
implementation manuals) with the USAGE Divisions/Districts. Because the responsibility for
regulating the ocean disposal of dredged material is shared between the two agencies, it is wise to
build a strong, pragmatic relationship based on trust and fairness with each District Engineer and his
supporting staff.
If there is uncertainty about the number and type of USAGE activities, Regions may wish to double-
check their records with the USAGE. This may entail requesting that each USAGE District provide a
list of present and proposed permits and Civil Works projects that could involve the ocean disposal of
dredged material. To ensure that both agencies' records are the same, the Region may want to
request the latest date of EPA Regional concurrence or Statement of Findings, the basis of the
Regional concurrence (whether it was granted or assumed), the expiration date of the activity, the
latest date on which bioassay testing was performed, and the revaluation interval.
2.6.2 Communication Mechanisms
Regions that have the greatest success in coordinating with the USAGE get involved as early as
possible in the planning process for permits and Civil Works projects. Often, many routes of
communication are used, but the emphasis should clearly be placed on using informal modes, such as
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telephone calls, to decrease the need for paperwork and to minimize processing tune. Written
communication should be reserved for documenting agreements, differences, and the need for future
EPA reviews. Suggestions for possible coordination mechanisms include the following.
• Hold or sponsor regularly scheduled meetings (monthly/bimonthly/quarterly) with the
different USAGE District staff to discuss future plans and progress.
• Request periodic progress reports (once or twice a year) from the USAGE Districts.
• Explore the potential to receive progress reports prepared by each District for the
Division Engineer.
• Schedule periodic telephone discussions with USAGE District staff. Select a consistent
tune frame, e.g., the fini Monday of every month.
• Encourage planners of joint EPA/USAGE conferences to allot time for Regional/Division
meetings to discuss current and future plans and issues.
• Encourage USAGE contacts to invite EPA Regional staff to annual meetings in which
USAGE plans for the next year are discussed. EPA should aid in providing manpower
and funding, if possible, and explore opportunities for joint EPA/USAGE efforts/studies.
• Work with USAGE staff to align budget and data needs.
• Advise the USAGE of EPA mandates and Regional policy towards review of proposed
actions and environmental protection.
• Develop procedures for standardizing permit conditions, reviewing unique permit
conditions, and conducting joint enforcement actions.
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Section 3
TECHNICAL EVALUATIONS OF PROPOSED DISPOSAL ACTIONS
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3.0 TECHNICAL EVALUATIONS OF PROPOSED DISPOSAL ACTIONS
Under Section 103 of the MPRSA, the USAGE issues dredged material disposal permits and has the
responsibility for regulating the tune, rates, methods, types, and quantities of dredged material
disposal; it also must work with EPA to implement effective monitoring programs for ocean dredged
material disposal sites (ODMDS). EPA is responsible for evaluating the effects of dredged material
disposal under USAGE dredged material permits and Civil Works projects. Under Section 102, EPA
is also responsible for designating ODMDSs and recommending modifications to or use of USACE-
selected ODMDSs.
Under 40 CFR 225(c), EPA Regional Administrators are charged with making independent evalua-
tions of all proposed dredged material disposal actions. The material hi this Section provides practical
guidance to EPA decisionmakers, such as the Ocean Dumping Coordinators, who must
• Evaluate permit/project-specific information and data submitted by
USAGE staff and/or permit applicants
• Request or consult additional information and data, as appropriate
• Determine compliance with criteria under 40 CFR 227 (Table 3-1).
3.1 Federal Regulation and Guidance
Federal guidance for evaluating dredged material is provided in Evaluation of Dredged Material
Proposed far Ocean Disposal — Testing Manual (EPA/USACE 1991), commonly referred to as the
Green Book. The Green Book stresses the use of bioassay and bioaccumulation testing as evaluative
tools and contains technical guidance on the use of such tests. If the results of the appropriate tests
show that the proposed dredged material meets the criteria under 40 CFR 227, disposal of the
material at a designated ODMDS is supported. If the test results show that the material does not meet
the criteria set forth under 40 CFR 227, the potential for significant adverse impact1 on the ocean
'Significant adverse impact may include adverse consequences to the marine ecosystem and negative
human-health effects from uses of the marine environment.
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Table 3-1. Subparts and Sections of 40 CFR Part 227
Applicable to Ocean Disposal of Dredged Material
Subpart A: General
Section 227.1 Applicability
Section 227.2 [Dredged] Materials which satisfy the environmental impact criteria of
Subpart B
Section 227.3 [Dredged] Materials which do not satisfy the environmental impact criteria
of Subpart B
Subpart B: Environmental Impact
Section 227.4 Cri^-ia for evaluating environmental impact
Section 227.5 Prohioited materials
Section 227.6 Constituents prohibited as other than trace contaminants
Section 227.9 Limitations on quantities of waste [dredged] materials
Section 227.10 Hazards to fishing, navigation, shorelines, or beaches
Section 227.13 Dredged materials
Subpart C: Need for Ocean Dumping
Section 227.14 Criteria for evaluating the need for ocean dumping and the alternatives to
ocean dumping
Section 227.15 Factors considered
Section 227.16 Basis for determination of need for ocean dumping
Subpart D: Impact of the Proposed Dumping on Esthetic, Recreational, and Economic Values
Section 227.17 Basis for determination
Section 227.18 Factors considered
Section 227.19 Assessment of impact
Subpart E: Impact of the Proposed Dumping on Other Uses of the Ocean
Section 227.20 Basis for determination
Section 227.21 Uses considered
Section 227.22 Assessment of impact
Subpart G: Definitions
Section 227.27 Limiting permissible concentration (LPC)
Section 227.28 Release Zone
Section 227.29 Initial mixing
Section 227.31 Applicable marine water quality criteria
Section 227.32 Liquid, suspended paniculate, and solid phases of a [dredged] material
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environment is predicted, and ocean disposal is not supported unless a waiver of the criteria is granted
by the Administrator of EPA.
Per 40 CFR 227.13(c), evaluation of dredged material focuses on biological effects rather than the
presence/absence of contaminants. Bioassays are used to predict environmental effects because they
are regarded as the best methods available for integrating the effects of multiple contaminants and for
comparing the relative impacts of different dredged materials. Test organisms integrate and quantify
the effects of chemical and physical constituents of a dredged material. Contaminant-based effects in
the sediment can then be assessed in holistic manner.
Under 40 CFR 227.27 of the ocean dumping regulations, the impact of the liquid, suspended-
paniculate, and solid phases of a material proposed for ocean disposal must be evaluated. For most
projects, the impact of the solid phase on the benthic environment deserves the most rigorous
evaluation. This is because the dredged material mat is deposited on the seafloor usually causes
greater impact to a smaller area for a longer period than the fraction of dredged material that is
exposed to the water column. In most cases, the environment of concentrated impact exposure is
more likely to present an adverse effect (e.g., contaminant bioaccumulation among bottom-dwelling
organisms). Therefore, unless the disposal site is exceptionally deep (e.g., > 100 m), or readily
disperses deposited material, or the surrounding ecosystem warrants special protection, EPA
evaluators should focus their work toward understanding the potential impacts to the benthic environ-
ment.
Whole-sediment bioassays should be used to evaluate potential impact of the solid phase of the
dredged material (wet sieving and layering of test sediment over clean or reference sediment is no
longer recommended). Chemical analyses of dredged material may be needed to determine the
presence and concentration of contaminants that might be of environmental concern, including
concerns about bioaccumulation. At present, contaminant concentrations alone can only be used to
determine compliance with water quality criteria (WQC) and compliance with the limiting permissible
concentration (LPC) for nonpolar organic contaminant bioaccumulation.1 EPA and the USAGE are
'by calculation of the theoretical bioaccumulation potential (TBP)
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presently conducting research to develop and evaluate sediment quality criteria (SQC). When
technically sound SQC are developed and the corresponding Final Notice of Availability is published
in the Federal Register by EPA, these criteria will be incorporated into Tier n of the Green Book
evaluation procedure by the insertion of a new section in the manual. The new section will be devel-
oped jointly by EPA and the USAGE. It will provide guidance on how to use the SQC to determine
compliance with the LPC. In the meanwhile, test animals must be used to determine dredged material
toxicity and the biological availability of contaminants in the material.
3.2 Regional Guidance
The Green Book is the primary guidance manual for EPA evaluators who must independently evaluate
dredged material for proposed projects. However, the manual is National in scope and cannot
address all local concerns and issues that are often ODMDS or dredged material specific. Therefore,
USACE District/EPA Region guidance manuals (or other technical instructions/agreements) are
necessary to adequately implement the National procedures at the local level. These District/Region
manuals are [to be] developed jointly and cooperatively by EPA Region and USACE District staff,
and other involved and interested parties (e.g., State CZMA agencies, port authorities, contract
laboratories, and environmental groups). Typically, District/Region manuals specify the following.
• Criteria for compliance determinations in Tier I (see below); weight of factors considered
in Tier I determinations
• Contaminants of concern; weight of factors employed to identify contaminants of concern
• Reference sediment/reference water
• Quality assurance (QA) plan submission/approval
• Sampling requirements
• Analytical methods and method detection limits
• Bioassay species and protocols
• Data presentation/analysis
• Factors and weight of factors to determine LPC compliance when bioaccumulation hi
dredged material exceeds that in reference sediment
The EPA evaluation of a USACE permit or Civil Works project should integrate the guidance of the
most up-to-date Federal and regional guidance. Section 3.3 presents (1) a summary of the tiered
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testing procedure in the Green Book, (2) typical data and information that an EPA evaluator would
need to conduct his evaluation, and (3) guidance for independent decisionmaking. Sections 3.4.1
through 3.4.4 present guidance on reviewing data under Tiers I through IV.
33 Green Book Tlered-Testing Procedure
The following overview of the tiered testing evaluation is taken verbatim from Section 3.2 of the
Green Book (EPA/USACE 1991). (Original Green Book text is printed in Universe* typeface; minor
edits and conforming changes are indicated by CG Times* typeface, the main typeface of this
document). Readers who are familiar with the Green Book guidance should proceed directly 10 :
Section 3.4. Readers who are unfamiliar with the Green Book guidance can consult the following text
as an overview; however, they should base project-specific evaluations on the full guidance contained
in me National testing manual (and in appropriate regional manuals/agreements).
The tiered approach used in the Green Book is designed to aid in generating necessary
toxicity and bioaccumulation information, but not more information than is necessary. This
allows optimal use of resources by focusing the least effort on dredging operations where
the potential (or lack thereof) for unacceptable adverse impact is clear, and expending the
most effort on operations requiring more extensive investigation to determine the potential
(or lack thereof) for impact. To achieve this objective, the procedures in the Green Book
are arranged in a series of tiers, or levels of intensity of investigation. The initial tier uses
readily available information that may be sufficient for evaluation in some cases. Dredging
operations that obviously have low environmental impact generally should not require
intensive investigation to reach a decision. Evaluation at successive tiers is based on more
extensive and specific information that may be more time-consuming and expensive to
generate, but that allows more and more comprehensive evaluations of the potential for
environmental effects.
A tiered, or hierarchical, approach to testing and evaluation allows the use of a necessary
and sufficient level of testing for each specific dredging operation. The initial tiers (Tiers I
and II; Figures 3-1 through 3-3) use existing information and relatively simple, rapid
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TIER I
Y«s
Is DM
(1)*and
or (ZltorbMchnourirtnwnt. ex
(3) similar todtepacaliil* and tmmara*
far mnowd fmn pofiutfon •ouitsas?
EvoJuait poUntial nwtar cotumn Impact
E^akat* pounUal btnthte Impact
OMmnkw cocnpeinc*
with WQC
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WQC Compliance
From Figure 3-1
Evaluate potential
miercolumn Impact
Water-Column Tojbetty
i
WQC Screen, model assumed total release of
sediment containments to the water-column
WQC tor al contaminants
Determine dfrsohed coiiteriliaUmt of
oontamlnanis of coryem In wtttercofunvi
coneentrattont > WQC
after WtJUmbdno?
•tfeetssuBMcled?
Model dunhvd eonoantattans of
contaminants of concern In water-column
Modeled oKsotwd
nations > WQC
•tier initial mixing?
DM exceeds
LPCtorWQC
evaluation needed
Model DM suspended phase In water-column
Determine ttxfclty of DM suspension
DM meets LPC
tor water-column
toxidty
of LCSO after initial mixing?
Figure 3-2. Tiered-Testing Procedure for Evaluating Potential
Water-Column Impact of Dredged Material Proposed for Ocean Disposal
[Green Book Figure 3-2 (EPA/USACE 1991)]
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BwnteToncrty
FromRqure 3-1
Evaluate PoMntttl BanWe Impact
BtaaeeuwuttUon
CaicUMtth«ofitictfbtoiesumU«ion
DMmMtsLPCfer
bwnnjetniejty
HER IV
Figure 3-3. Tiered-Testing Procedure for Evaluating
Potential Benthic Impact of Dredged Material Proposed for Ocean Disposal
[Green Book Figure 3-3 (EPA/USACE 1991)]
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procedures for determining potential environmental impact of the dredged material in
question. For certain dredged materials with readily apparent potential for environmental
impact (or lack thereof), information collected in the initial tiers may be sufficient for
making decisions. However, more extensive evaluation (Tiers III and IV; Figures 3-2 and
3-3) may be needed for other materials with less clear potential for impact or for which the
information is inadequate. Successive tiers incorporate more intensive evaluation proce-
dures that provide more detailed information about potential impact of the dredged material.
The intent of the tiered approach is to use resources efficiently by testing only as intensely
as is necessary to provide sufficient information for making decisions. The tiered approach
minimizes excessive testing of dredging operations for which this is unnecessary and
appropriately directs more intense testing to operations that require more technical
information for evaluation. Tiered testing results in more efficient completion of required
evaluations and reduced costs, especially to low-risk operations.
It is neither necessary nor desirable that all dredged material be evaluated through all tiers
in sequence. If information warrants, it is acceptable to proceed directly to Tier II, III, or IV.
It is also fully acceptable to carry water-column and benthic evaluations, or toxicity and
bioaccumulation evaluations, to different tiers to generate the information necessary and
sufficient to determine compliance with the regulations. •
Prior to initiating testing, it is essential that the informational requirements of preceding
tiers be thoroughly understood and that the information necessary for decision-making at
the advanced tier be assembled. For example, it is always appropriate to gather all relevant
available information and identify the chemicals of concern for the dredged material in
question. Although these activities are components of Tier I, they have to be conducted
even if a complete evaluation at the initial tiers is not considered appropriate. Similarly,
water-column evaluations require that Tier II be completed to obtain information sufficient
for an LPC determination in Tier II, III, or IV.
It is necessary to proceed through the tiers only until information sufficient to determine
compliance or noncompliance with 40 CFR 227.6 and 227.13 has been obtained. For
example, if the available information is sufficient to demonstrate that the LPC is met, no
further testing is required. Similarly, if historical data have consistently shown a particular
dredged material to exceed the LPC, an exhaustive evaluation may not be warranted. After
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any of the first three tiers is completed, one of three decisions can be made according to
the evaluative guidance in Sections 4 through 7 of the Green Book: (1) information is
sufficient to determine that the LPC is met, (2) information is sufficient to determine that
the LPC is not met, or (3) information is insufficient to make a determination. In the last
case, if ocean disposal is still to be considered, the evaluation would proceed to a higher
tier for further testing. In unusual circumstances, where a compliance determination cannot
be made after completion of the first three tiers, further testing in Tier IV may be appropri-
ate. Tier IV tests have to be carefully designed to supply all information necessary to make
a determination on whether the dredged material meets the LPC.
If the information is insufficient to determine LPC compliance after completing Tier I, II, or
III, further testing is not required if noncompliance with the LPC is assumed.
The Tier I evaluation helps to identify the needed information and to determine appropriate
tiers and tests necessary to collect this information. In all cases, it is appropriate to gather
the information used in Tier I, although it may be clear without formal Tier I evaluation that
further assessment will be necessary. It is, however, always necessary to identify the
contaminants of concern, if any, at the Tier I level. Tiers I, II, and III are intended to suffice
for almost all evaluations. Tier IV is intended only for extremely rare occasions.
With some dredged materials, biological effects will be easily determined, but bioaccumula-
tion potential will require more investigation, or vice versa. In other cases, determining
potential benthic effects may require more investigation than evaluating water-column
effects. The tiered-testing approach used in the Green Book accommodates such situations
by providing independent evaluation of biological effects and bioaccumulation and of water-
column and benthic effects only to the extent needed to make a decision about each.
The tests in the tiers presented in the Green Book reflect the present state-of-the-art
evaluation procedures for dredged-material evaluation. The procedures will be improved
and updated as scientific knowledge increases. Part III of the Green Book provides the
testing guidance for each tier, and includes specific guidance on topics such as test
selection, test design and conditions, determining acceptability of tests, and statistical
frameworks for interpretation of results. In Part II, evaluative guidance is provided for using
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bioassay and bioaccumulation data from each tier of testing to determine compliance with
the regulations.
It is important to emphasize that testing at every tier is not required for every situation.
However, evaluations conducted in Tiers II, III, and IV may utilize information that was
collected in preceding tiers. Thus, skipping tiers may not produce any time or resource
savings. At any tier, failure to satisfactorily determine the potential for unacceptable
environmental impact results in additional testing at a subsequent, more complex tier unless
a decision is made to seek other disposal alternatives. If there is reason to believe that
there is contamination and that the available information is not adequate to support a
decision, testing can begin at Tier II, III, or IV without conducting the evaluation at each
preceding tier.1 It woul( extremely unusual to go directly to Tier IV. The tiered-testing
approach permits the flexibility to evaluate dredged materials in the most efficient way.
More complex evaluation techniques are necessary only in those situations where the
potential effects of contaminants in the dredged materials can be evaluated only with
additional technical information.
Although the tiered-testing approach outlined in Green Book provides an effective means of
implementing the regulations, it is recognized that the evaluation of dredged material is an
evolving field. It is anticipated that, as new methods of evaluation are developed and
accepted, they can be integrated into the tiered framework. With the advent of acceptable
new evaluation procedures, the tiered approach will be maintained because of the efficiency
afforded by its hierarchical design.
3.4 EPA Evaluation of Tier I -IV Data
Sections 3.4.1 through 3.4.4 provide EPA evaluators with guidance for conducting independent
evaluations of Tier I - Tier IV data for proposed dredged material disposal projects. Included in these
sections is guidance to use the EPA Evaluator Worksheets (located at the end of Section 3 as Tables
*Note that Tier II water-column evaluation is required if water-column LPC compliance
cannot be shown in Tier I.
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3-8 through 3-15). These worksheets summarize the primary data categories necessary for an EPA
evaluator to accurately and comprehensively assess the adequacy of a project's:
• Sediment and water sampling
• Physical, chemical, biological test procedures
• Numerical modeling
• Technical and statistical analysis
• Quality assurance (QA) considerations.
If the information provided to the EPA does not convincingly show that the proposed dredged
material disposal meets or does not meet the LPC for both water-column and benthic impact, the EPA
evaluator should request add! • nal information from the USAGE District/Division or consult oi_-.
information sources. Independent sources can include those listed in Section 4.1 of the Green Book,
region files and databases, and other repositories of quality (validated) data.1
Under 40 CFR 225.2(c), the EPA Regional Administrator has 15 days to complete an evaluation on a
proposed permit or Civil Works project, unless he requests an extension (additional 15 days) from the
USAGE District Engineer. Although these tune frames may appear to be tight, in practice, EPA and
the USAGE staff should be working cooperatively and concurrently to evaluate the proposed disposal;
if so, the 15-day period should be ample time for EPA to reach a final decision.
3.4.1 Tier I
In Tier I, decisions are made on the basis of a comprehensive analysis of all existing and readily
available, assembled, and interpreted information on the proposed dredging project, including all
previously collected physical, chemical, and biological data (Figure 3-1). Detailed guidance for
conducting Tier I evaluations are contained in Section 4 of the Green Book.
*Data validation involves all procedures that are used to accept or reject data after collection and prior
to use, including editing, screening, checking, auditing, verifying, and reviewing. Data-validation
procedures ensure that the standards for data accuracy and precision were met, that data were
generated in accordance with the QA study plan and SOPs, and that data are traceable and defensible.
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Table 3-8 is a worksheet for typical Tier I data that an EPA evaluator should receive from the
USAGE. If LPC compliance is to be established for either benthic and/or water-column impact
within this tier, accurate and comprehensive data are required for most of the elements in the top
section of the checklist. Additionally, as with LPC determinations at any tier, the adequacy of
sediment and/or water sampling, and QA verification of all analytical procedures and results, should
be confirmed. If the Tier I information provided does not convincingly show that the proposed
dredged material disposal meets the LPC for both water-column and benthic impact, the EPA
evaluator should (1) request additional information from the USAGE, (2) independently consult other
information sources (refer to Section 4.1 of the Green Book), or (3) evaluate the proposed dredged
material under higher tiers. Because review of sample plans is important, EPA evaluators may want
to develop a checklist of quss. - to evaluate sam- - and testing plans; Appendix G contains an
example checklist of questions used by EPA Region K (Cotter 1992).
3.4.2 Tier H
In Tier U, marine WQC compliance is determined using a numerical mixing model (Figure 3-2), and
benthic impact is evaluated by calculating a TBP for nonpolar organic contaminants (Figure 3-3). For
the evaluation of most projects, definitive LPC evaluations will not be reached within the Tier H
water-column or benthic impact evaluations; however, the tier provides a reliable, rapid screen for
assessing potential impact and thereby reduces or eliminates the need for further testing under
subsequent tiers. Detailed guidance for conducting Tier U evaluations is contained in Sections 5 and
10 of the Green Book.
Elements 1 through 7 of Table 3-4 list typical Tier H data that an EPA evaluator needs to determine
compliance with marine WQC. If a non-ADDAMS model is used to evaluate initial mixing of the
contaminant concentrations of the bulk sediment or the elutriate, other model input and output
information might be needed. EPA evaluators should not rely on only USACE/applicant model-
output summary tables for decisionmaking. Review of the numerous input parameters particular to
each project should be an essential component of the evaluations. The model output, and in turn the
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December 1992
LPC determination, can be vary sensitive to some of the input parameters. Use of wrong values or
units could significantly impact either the marine environment or the USACE/applicant's project.
Elements 8 through 10 of Table 3-4 are of lesser importance. As discussed in Section 5.1 of the
Green Book, for most projects, synergism of contaminants should be assumed and the LPC determi-
nation for water-column toxicity should be conducted hi Tier m. A determination of no synergistic
effects should be substantiated with definitive project-specific data.
Presently, Tier n tests for benthic-impact evaluation are not comprehensive; in most projects, the
benthic-impact LPC determination will have to be reached in Tier m. When suitable toxicity tests,
bioaccumulation tests, and/or SQC ?-e established, th:y will be incorporated into the Tier n guidance
and a new/revised section of the Green Book will be published. The new section will provide explicit
guidance on how to use the tests and/or apply SQC to determine LPC compliance. In the meantime,
the only Tier n benthic-impact evaluation is the bioaccumulation analysis for nonpolar organic
compounds. The analysis uses a calculation for determining the TBP hi test organisms. The TBP
calculation factors the concentration of the nonpolar organic contaminant hi the sediment, the total
organic carbon (TOC) in the sediment, and the percent lipid concentration (%L) hi the organism.
The calculation is run for both the proposed dredged material and the reference sediment; if TBPs hi
the dredged material are less than or equal to reference-sediment TBPs, the LPC is met for those
nonpolar contaminants.
Table 3-10 contains categories of data necessary to evaluate the TBP for sediments. Particular
attention should be focused on the appropriateness of laboratory methods, method detection limits
(MDL), sampling, and statistical analyses. If USACE/applicant TBP data cannot be independently
evaluated for all or some of the contaminants, those contaminants should be evaluated hi Tier m. It
is cost and time efficient, and of clear benefit to the USACE/applicant, to rigorously show Tier n
LPC compliance for nonpolar contaminants, rather than conducting bioaccumulation exposure tests
and tissue analyses for all of the contaminants of concern hi the dredged material.
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3.4 J Tier ID
Tier m tests include (1) determination of water-column toxicity and (2) assessment of contaminant
toxicity and bioaccumulation from the material to be dredged. The evaluations in this tier are based
on the output from Tiers I and n and comprise standardized bioassays. Detailed guidance for
conducting Tier m evaluations is contained in Sections 6, 11, and 12 of the Green Book.
At present, tests for chronic sublethal exposure to benthic contaminants are being developed. When
the tests are approved by EPA and the USAGE, they will be incorporated in Tier m in an update to
the Green Book.
Table 3-11 lists the typical Tier m data mat an EPA evaluator needs to evaluate water-column
toxicity. The data listed is similar to that identified in Table 3-6, with the addition of organism
treatment data. Particular attention should be focused on the appropriateness of the test-organism
selection, the dilution series ratios, 90+% survival in the control chambers, and reference-toxicant
results, in addition to the evaluation of the numerical modeling, laboratory methods, MDLs,
sampling, and statistical analyses.
Table 3-12 contains checks for benthic-toxicity data that are similar to the tests for water-column
evaluations. EPA evaluators should take special note of laboratory storage and preparation of the
sediment. Inappropriate storage conditions (e.g., freezing) and lengthy holding times prior to testing
can invalidate or reduce the confidence of test results. Similarly, the wrong methods for compositing,
sieving, and homogenating the sediment, and improper laboratory measurements, records, or
organism care can affect test results. Quick checks that can indicate high-quality results include high
survival in the control tests, clear documentation of procedures and laboratory personnel training, and
complete and orderly chain-of-custody and project records.
The worksheet for Tier m bioaccumulation data, Table 3-13, has checks similar to Table 3-12, with
the exclusion of the 90+% survival in the control tests requirement. Because the typical bioaccumula-
tion tests take 28 days, starvation may be a factor for some organisms under some test conditions, and
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Dredged Material Permit/Project Review Manual
December 1992
control-test mortality can exceed 10% without significantly affecting the test results. However,
reference-toxicant tests should be performed on all bioaccumulation test organisms to ensure that the
organisms are healthy at the start of the test. Only the tissues of organisms that are recovered alive at
the conclusion of the tests should be evaluated for bioaccumulation. Good testing laboratories will
have these procedures clearly documented in their records and QA plans, although they are not likely
to deliver them with the test results unless requested to do so.
3.4.4 Her IV
As discussed in Section 3.3, *, a compliance determination cannot be made after completion of the
first three tiers, further testing in Tier IV might be appropriate. However, Tier IV testing is intended
for exceptional circumstances only; it should not be routinely applied. Presently, Tier IV consists of
bioassay and bioaccumulation tests to evaluate the long-term benthic impact of dredged material (no
methods for Tier IV water-column tests have yet been developed). Tests at this level should be
selected to address specific project issues for a specific dredging operation that could not be fully
evaluated in the earlier tiers. Because these tests are case specific and require significant time and
money to complete, criteria for determining compliance with 40 CFR 227 should be agreed on in
advance among EPA Region and USAGE District staff.
Conducting Tier IV benthic testing is possible with current methods. However, because the
evaluation consumes significant resources of the dredging applicant and of the regulatory authority,
and a final noncompliance determination is still possible, all parties should weigh the options and de-
cide whether to perform Tier IV testing or to consider an alternative that does not involve ocean
dumping, such as upland disposal. If Tier IV tests are conducted, the EPA evaluator actively
participates in the design of the project-specific tests and the determination of evaluation/decision
points.
Under Tier IV evaluations, bioaccumulation testing should measure the steady-state body burden of
contaminants of concern in tissues of organisms subjected to long-term laboratory exposures or in
tissues of appropriately sampled field organisms. In these tests, the contaminant concentration in the
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tissues of dredged material test organisms is compared against the appropriate FDA action levels and
against bioaccumulation data obtained from organisms that are exposed to reference-material
sediment. If contaminant bioaccumulation in the dredged material organisms is less than the FDA
levels but greater than in the reference-material organisms, organisms are collected from the vicinity
of the disposal site and analyzed for the contaminants of concern. If the contaminant bioaccumulation
of the dredged material organisms is lower than the steady-state body burden of the field-collected
organisms, the LPC for bioaccumulation is met. If field-collected organisms have contaminant levels
lower than those of the dredged material organisms, case-specific criteria are developed to make a
final LPC compliance determination for bioaccumulation.
There is no specific guidance for EPA evaluate :s of Tier IV data other than that described above.
Because Tier IV data and criteria will be project specific, expensive to generate and evaluate, and
probably of significant public interest, the EPA evaluator should solicit assistance from the appropri-
ate EPA Headquarters staff to seek review and approval of evaluation criteria prior to their applica-
tion.
Tier IV will likely be applied only to those few large projects in which non-ocean disposal options are
unavailable or prohibitively expensive, and the project (or abandonment of the project) has significant
economic or National-defense implications.
3.5 Compliance Determination of Subparts B, C, D, and E of 40 CFR 227
If proposed dredged material is found to meet the LPC, ocean disposal is supported. However,
Subparts B, C, D, and E of 40 CFR 227 must also be met before ocean disposal is acceptable. These
Subparts enact those portions of MPRSA §103 that specify that proposed dredged material disposal
must be evaluated to determine if the project will "not unreasonably degrade or endanger human
health, welfare, or amenities, or the marine environment, ecological systems, or economical
potentialities." EPA makes this determination through evaluation of 40 CFR 227, which includes the
following.
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• Subpart B — Environmental Impact
• Subpart C — Need for Ocean Dumping
• Subpart D — Impact of the Proposed Dumping on Esthetic, Recreational, and
Economic Values
• Subpart E — Impact of the Proposed Dumping on Other Uses of the Ocean
Information for these evaluations should be provided to the EPA regulator(s) by either the USAGE or
the permit applicant. As with the LPC evaluation of the dredged material, if the provided information
is insufficient to determine compliance, the EPA evaluator should (1) request additional information
from the USAGE or (2) independently consult other information sources. If, after exerting reasonable
time and effort to obtain adequate and verified information, the evaluation cannot be acceptably
conducted, the EPA evaluator should conclude that the project is noncompliant with the regulations
and that ocean disposal is unacceptable.
3.5.1 Subpart B — Environmental Impact
In all dredged material disposal projects, evaluation of the applicable sections of Subpart B (40 CFR
227.4 - 227.13) is included in the LPC evaluation (Tiers I - IV; refer to Sections 3.4.1 through 3.4.4
above). If the proposed dredged material meets die LPC, the dredged material satisfies the require-
ments of Subpart B. This determination indicates that the disposal will not unduly degrade or
endanger the marine environment, and that the disposal will present:
40 CFR 227.4
(a) no unacceptable adverse effects on human health and no significant damage to the
resources of the marine environment;
(b) no unacceptable adverse effect on the marine ecosystem;
(c) no unacceptable adverse persistent or permanent effects due to the dumping of the
particular volumes or concentrations of these materials; and
(d) no unacceptable adverse effect on the ocean for other uses as a result of direct environ-
mental impact.
Pertinent sections and subsections of Subpart B are discussed below.
Section 227.5 prohibits the disposal of dredged material containing
• High-level radioactive wastes
• Material used for radiological, chemical, or biological warfare
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• Persistent inert synthetic or natural material that may float or remain in suspension in such
a manner that it may interfere materially with fishing, navigation, or other legitimate uses
of the ocean.
Section 227.5 also prohibits disposal of dredged material that is insufficiently described to allow clear
application of the all environmental impact criteria. Sections 227.6 and 227.13 contain criteria for
determining the acceptabUity of dredged material for ocean disposal. Section 227.6 focuses on
specific constituents in dredged material prohibited "as other than trace contaminants," and Section
227.13 addresses all constituents of the dredged material. Sections 227.9 and 227.10 set limitations
on the quantity of dredged material that may be discharged at a specific site or tune, and they state
that the disposal must not unacceptably interfere with fishing or navigation, or endanger shorelines
and beaches.
Constituents in dredged material prohibited "as other than trace contaminants" by Section 227.6 are
qrganohalogen compounds; mercury and mercury compounds; cadmium and cadmium compounds; oil
of any kind or hi any form; known carcinogens, mutagens, or teratogens; or suspected carcinogens,
mutagens, or teratogens. These constituents are considered to be present as trace contaminants only
when they are present in dredged material that is otherwise acceptable for ocean disposal in such
forms and amounts in liquid, suspended paniculate, and solid phases that dumping of the material will
not cause significant undesirable effects, including the possibility of danger associated with bio-
accumulation in marine organisms.
The prohibitions and limitations of Section 227.6 do not apply to the constituents that are present in
the dredged material as chemical compounds or forms that are:
• Nontoxic and nonbioaccumulative in the marine environment upon disposal and thereafter
or
• That, at the time of disposal and thereafter, will be rapidly rendered nontoxic to marine
life and nonbioaccumulative in the marine environment by chemical or biological
degradation;
provided thai the constituents will not make edible marine organisms unpalatable nor endanger human
health or that of domestic animals, fish, shellfish, or wildlife.
Subsection 227.13(a) defines dredged material and Subsection 227.13(b) contains the exclusionary
criteria that are evaluated under Tier I (refer to Section 3.3 above).
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3.5.2 Subpart C — Need for Ocean Dumping
Subpart G contains criteria for evaluating the need for ocean disposal and alternatives to ocean
disposal for dredged material. Section 227.15 contains some factors that should be considered to
establish the need for ocean disposal. These factors include assessing the following.
• Utility and feasibility of treatment processes to minimize environmental impact and risk,
or to apply nonocean-disposal alternatives
• Feasibility of limiting lite volume of or environmental risk of the dredged material (e.g.,
by reducing contaminant input to the sediment or by reducing siltation and thereby
reducing volume to be dredged)
• Environmental risk, imp^.r, and costs for ocean disposal relative to feasible alternatives,
including landfilling and recycling
• Consequences of the nonocean-disposal alternatives
No ocean- or nonocean-disposal alternative is initially considered to be more desirable than any other;
the evaluations should be made on a case-by-case basis. That is, confined or upland disposal must not
be considered environmentally preferable to ocean disposal unless consideration of potential
environmental impact (e.g., groundwater contamination, leachate and runoff impact, permanent
alteration of the site) shows it to be so. Similarly, ocean disposal cannot automatically be considered
the most desirable alternative. .
The alternatives identified in Section 227.15 of the regulations primarily are relevant for non-dredged
material. However, under MPRSA §103, the USAGE is required to consider alternatives to ocean
dumping, and it is important for the EPA Regions and USAGE Districts/Divisions to cooperatively
work to identify such potential alternatives. This should be done as early in the process as feasible.
A joint EPA/USAGE document discussing alternatives to ocean dumping for dredged material and
identifying key environmental factors affecting the various alternatives has been prepared
(EPA/USAGE 1992). This document establishes a framework for evaluating dredged material
management options and should be consulted for further guidance.
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3.53 Subpart D — Impact of the Proposed Dumping on Esthetic, Recreational, and
Economic Values
Under Subpart D, impact of proposed dredged material disposal must be assessed relative to esthetic,
recreational, and economic values, including the recreational and commercial use and values of ocean
waters, inshore waters, beaches, and shorelines and living marine resources. Consideration must
include actual, possible, and abstract impacts to the public, municipalities, and industries with interest
in the project. Factors to be considered are the following.
• Nature and extent of present and potential recreational and commercial use of
areas that might be affected by the proposed dumping
• Existing water quality and the nature and extent of disposal activities in the area
that might be affected by the proposed dumping
• Applicable water quality standards
• Visible characteristics of the dredged material that may result in unacceptable
esthetic nuisance hi recreational areas
• Presence hi the dredged material of pathogenic organisms that may cause a public
health hazard either directly or through contamination of fisheries or shellfisheries
• Presence hi the dredged material of toxic chemical constituents released hi
volumes that may affect humans directly
• Presence hi the dredged material of chemical constituents mat may be bio-
accumulated or persistent and may have an adverse effect on humans directly or
through food-chain interactions
• Presence hi the dredged material of any constituents that might significantly affect
living marine resources of recreational or commercial value (40 CFR 227.18)
The overall assessment of the proposed disposal of dredged material and of the alternatives to the
proposed ocean disposal must be based on the effects on esthetic, recreational, and economic values,
including enhancement of these values, when applicable. Whenever possible, results should be
expressed quantitatively, such as percentage of a resource lost, reduction hi use days of a recreational
area, dollars lost hi commercial fisheries profits, or profits of other commercial enterprises.
3.5.4 Subpart E — Impact of the Proposed Dumping on Other Uses of the Ocean
Subpart E calls for a directed assessment of the proposed dredged material disposal hi relation to its
potential for long-range impacts on other legitimate uses of the ocean. The focus of this assessment
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December 1992
should be on specific alternative uses of the ocean rather than on the overall esthetic, recreational, and
economic values that are considered under Subpart D. The assessment should place particular em-
phasis on any irreversible or irretrievable commitment of or change to resources caused by the
disposal. Specific uses that must be considered include the following.
• Commercial fishing in open-ocean areas
• Commercial fishing in coastal areas
• Commercial fishing in estuarine areas
• Recreational fishing in open-ocean areas
• Recreational fishing in coastal areas
• Recreational fishing in estuarine areas
•. Commercial navigation
•• Recreational navigation
• Actual or anticipated exploitation of living marine resources
• Actual or anticipated exploitation of nonliving marine resources
• Scientific research and study
3.6 Evaluation of Dredged Material
Proposed for Disposal at USACE-Selected ODMDSs
Most sediments dredged under Civil Works projects and USACE permits are disposed of at interim or
final designated EPA-designated ODMDSs. However, some projects evaluated by EPA propose
dredged material disposal at USACE-selected ODMDSs This can be for a variety of reasons,
including, but not limited to the following.
• EPA-designated ODMDS is unavailable (i.e., the nearest EPA site is far from the
dredging site and economically prohibitive to use for the project)
• Dredged material is unsuitable for disposal at EPA-designated ODMDSs (e.g., incompati-
ble grain-size distribution)
• Dredged material is suitable for beneficial uses (e.g., reef construction)
Whether proposed for an EPA-designated or a USACE-selected ODMDS, dredged material must meet
the water-column and benthic LPC (refer to Sections 3.3 through 3.4.4). For disposal at a nonEPA-
designated ODMDS, the project must also meet the criteria under 40 CFR 228. For guidance on
reviewing compliance with criteria under 40 CFR 228 see EPA (1986) and Pequegnat et al. (1990)
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until the joint EPA/USACE manual (EPA 1992b) on ocean disposal site management is completed at
the end of 1993.
3.7 Sampling
To adequately and efficiently conduct a dredged material evaluation, a comprehensive sampling plan
should be in place before sampling begins. Sufficient amounts of sediment and water should be
collected to conduct the necessary evaluations (Table 3-7). Careful consideration of maximum
allowable and recommended holding times for sediments as well as the exigencies of resampling
should be given careful consideration. Additionally, sample size should be small enough to be
conveniently handled and Iran ;^ted, but large enough to meet the requirements for all planned
analyses. The overall confidence of the final LPC determination is based on the following three
sampling factors. ~
• Collecting representative samples
• Using appropriate sampling techniques
• Protecting or preserving the samples until they are tested
All sampling plans should either be in strict conformance with District/Region guidance and/or
reviewed and approved by appropriate USACE/EPA personnel. In all cases, a written sampling plan
should become part of the project record. Table 3-7 contains the components of a typical sampling
plan for a dredging project. Detailed guidance on sampling is included in Section 8 of the Green
Book. Additional guidance is available in other EPA/USACE documents and in PTI (1992).
3.8 Methods
Proper sample collection, handling, preservation, and analysis is critical to the accurate evaluation of
dredged material test results. Sampling methods are usually developed by individual testing labo-
ratories and documented in standard operating procedure (SOP) documents. Consistent use of field
and laboratory SOPs will ensure that sampling errors are minimized. Analytical methods for dredged
material are typically those developed by EPA and/or the USAGE. Some contract laboratories may
apply additional procedures or refinements to approved EPA/USACE analytical methods to increase
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Table 3-2. Sample-Collection Checklist for Dredged Material Evaluations
[Green Book Table 8-1 (EPA/USACE 1991)]
Tests
Water Samnles
Sediment Samples
Disposal Dredging Control8 Dredging Reference Control8
Site Site Site Site
Hern
Water column
Screen . D
Elutriate D D
Hern
Benthic
Tier III
Water column Db D D
Tierm
Benthic
Tier IV
Water column D D D
Tier IV
Benthic
D
D
D
D
D
D
D
D
D D
D D
"May or may not have to be field collected
water; disposal-site water, clean artificial water, or clean seawater
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Dredged Material Permit/Project Review Manual
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analytical efficiency or lower MDLs (e.g., application of special clean-up techniques to minimize salt
interference). Any deviations from approved methods should be fully justified and documented in
project records.
It is good practice for all dredged material evaluators to (1) be familiar with all methods and SOPs,
(2) conduct field and laboratory site visits, and (3) be able to assess the quality of data generated by
the permit/project applicant. Methods necessary to conduct toxicity and bioaccumulation evaluations
in Tier D and Tier m may include the following.
Sieving
Combustion
Gravimetry
Gas chromatography (GO
Electron-capture detection (BCD)1
Mass spectrometry (MS)1
Atomic absorption spectroscopy (AAS)
Inductively coupled plasma (ICP) techniques
96-h elutriate toxicity bioassays
10-day whole-sediment toxicity bioassays
10-day whole-sediment bioaccumulation tests (for trace-metals analysis only)
28-day whole-sediment bioaccumulation tests
Methods necessary to conduct Tier IV water-column and benthic evaluations may include laboratory
and/or field evaluations of long-term toxicity or bioaccumulation effects on the dredged material,
including the following.
• Population-survival assessments
• Community-change assessments
• Reproduction assessments
Sections 9, 10, and 11 of the Green Book provide a comprehensive overview of chemical analyses
and biological testing for dredged material evaluation. Exceptionally good guidance on conducting
and evaluating chemical and bioaccumulation data is also available, respectively, in PTI (1992) and
Lee et al. (1989), as well as in several EPA and USAGE Headquarters and laboratory publications
and documents.
'usually combined with gas chromatography
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3.9 Necessary Hardware and Skills
The hardware and skills necessary to conduct LPC evaluations are relatively specialized. Many
Federal, State, and contract laboratories have capabilities to conduct most or all of the necessary
evaluations. However, to conserve time and resources, field sampling, laboratory work, data man-
agement, and analysis of the results are often conducted by separate organizations according to apti-
tude, cost, and scheduling parameters.
The general categories of capabilities necessary to reach a Tier m LPC compliance determination
include the following.
Regulation and literature research
Field sampling at the dredging site, disposal site, and reference site
Physical analysis of sediment samples
Trace-metal (chemical) analysis of water and sediment samples
Organic-compound (chemical) analysis of water and sediment samples
Numerical modeling for initial-mixing analysis
Toxicity bioassay testing of elutriate samples
Toxicity bioassay testing of whole-sediment samples
Bioaccumulation testing
Chemical analysis of tissue samples
Statistical analysis of test results
Quality-assurance implementation (throughout evaluation)
Compliance determination
3.10 Documentation
Throughout the Green Book, references are provided for the recommended sampling and testing
methods, data analyses, QA procedures, and additional testing guidance. For convenience to users, a
copy of the U.S. Ocean Dumping Regulations (40 CFR 220-228) is included as Appendix A of the
Green Book. District/Region manuals should also contain similar references, including references for
methods that are appropriate and acceptable to the EPA Region and USAGE District, and any
applicable Federal, State, or local regulations that are pertinent (e.g., State water-quality regulations
for dredging and/or disposal sites).
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Information on test-method documentation and recordkeeping intersperses the guidance of the Green
Book. EPA evaluators should confirm the test data for proposed Civil Works projects and USAGE
permits contain adequate sampling and test documentation.
Similar requirements for recordkeeping should be provided in the District/Region manuals. Records
ensure that all aspects of the field and laboratory work are documented so that the resulting data may
be properly interpreted and defended. Dredged material test data should be rejected if their history
cannot be confidently traced.
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Dredged Material Permit/Project Review Manual
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December 1992
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Dredged Material Permit/Project Review Manual
December 1992
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-------
Section 4
WAIVER OF CRITERIA
-------
-------
4.0 WAIVER OF CRITERIA
This section provides Regional staff with guidance for coordination with the USAGE when the EPA
Regional Administrator is considering a finding of noncompliance for a proposed permit activity or
Civil Works project. If the Secretary of the Army determines that there is no economically feasible
method or dumping site that would not violate EPA criteria at 40 CFR 227 and 228, he is authorized
under the MPRSA to request the EPA Administrator for a waiver of the criteria at 40 CFR 227 and
228 (pertaining to critical areas) [33 U.S.C. 1413(d), or Section 103(d)]. Once he makes this request
for a waiver, no opportunities for the Region to coordinate with the USAGE remain; the process is
elevated to the level of the EPA Administrator. Specifically, Section 103(d) states:
If, hi any case, the Secretary finds that, in the disposition of dredged material, there is
no economically feasible method or site available other than a dumping site the
utilization of which would result hi non-compliance with the criteria established
pursuant to Section 102(a) relating to the effects of dumping or with the restriction
established pursuant to Section 102(c) relating to critical areas, the Secretary shall so
certify and request a waiver from the Administrator of the specific requirements
involved. Within thirty days of the receipt of the waiver request, unless the Adminis-
trator finds that the dumping of the material will result hi an unacceptably adverse
impact on municipal water supplies, shellfish beds, wildlife, fisheries (including
spawning and breeding areas), or recreational areas, the Administrator shall grant the
waiver.
The USAGE has developed regulations that set forth the process for determining whether a waiver
request is in order and for submitting a request to the EPA Administrator hi 33 CFR 324.4(d),
relating to permits, and 33 CFR 336.2(d)(5), for Civil Works projects. EPA's regulatory guidance
for addressing a waiver request is located in 40 CFR 225.3 and 225.4. When an EPA Regional
Administrator rejects a proposed USAGE permit or USAGE project for the ocean disposal of dredged
material, the District Engineer must determine whether there is an economically feasible alternative
method or site available. If he cannot find an alternative method or site, he shall notify the Regional
Administrator of this determination and its basis, and the case is elevated to the Secretary of the
4-1
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Dredged Material Permit/Project Review Manual
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Army, who may seek a waiver of the criteria at 40 CFR 227 or 228 (pertaining to critical area
designation) from the EPA Administrator. The EPA Administrator is to grant the waiver within 30
days unless he finds that the proposed dumping will result hi an unacceptably adverse impact upon
municipal water supplies, shellfish beds, wildlife, fisheries (including spawning and breeding areas),
or recreation areas.
The legislative history of the MPRSA indicates mat Congress intended a strong burden of proof on
EPA to justify denial of a permit that could terminate a Civil Works project. For this reason, it is
important that the two agencies communicate with each other to identify potential areas of conflict
early hi the decision process and resolve any problems before arriving at the point of a waiver
request. EPA staff should work cloirly with staff from the USAGE and the respective coastal States
to ensure the careful consideration of all appropriate alternatives before the need to request a waiver
arises.
4.1 Legislative History
To understand the level of interaction that Congress intended between the agencies, it is helpful for
EPA Regional Ocean Dumping Coordinators to be aware of the waiver provision's legislative history.
The waiver provision of Section 103 results from the Conference Committee's compromise between
the House and Senate bills during the passage of the 1972 MPRSA. The House Bill (H.R. 9727, 92d
Cong.)1 assigned EPA permit authority for dumping in all cases except those involving dredge and
fill operations, hi which permit authority is vested with the USAGE. In addition, the EPA Adminis-
trator was granted the authority to designate areas where such dumping could not take place.
Nevertheless, the USAGE would be allowed to permit dumping hi these prohibited areas if the
Secretary of the Army certified that there was no economically feasible alternative reasonably
available [H.R. Rep. No. 92-361, 92d Cong., 1st Sess. (1971)].
*A11 citations from: Legal Compilation: Statutes and Legislative History - Executive Orders,
Regulations, Guidelines and Reports (EPA 1979).
4-2
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Dredged Material Permit/Project Review Manual
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In contrast to the House version's strong role for the USAGE in dredged material dumping permits,
the Senate alternative vested permit authority over dredged material with EPA, requiring mat permit
applications be accompanied by a certificate from the Secretary of the Army that the area chosen for
dumping is the only reasonably available alternative. Unless the EPA Administrator found that the
material to be dumped would adversely affect municipal water supplies, shellfish beds, wildlife,
fisheries (including spawning and breeding areas), or recreation areas, the permit was to be issued.
Thus, the Senate version envisioned a stronger EPA role in the permitting of dredged material
dumping, giving EPA permit authority and the ability to veto permit issuance [S. Rep. No. 92-451,
92d Cong., 1st Sess. (1971)].
These differences were resolved in toe Conference Committee bill, which authorizes the Secretary of
the Army to issue permits for the dumping of dredged material, using EPA criteria at 40 CFR 227
and 228 relating to the effects of dumping under Section 102(a) of the Act. EPA retains an oversight
role through Section 103(c), so that when EPA determines that dumping will not meet established
criteria at 40 CFR 227 and 228, no permit may be issued unless a waiver is requested and granted
under Section 103(d).
The conference report explains that when the Secretary finds that there is no economically feasible
alternative to a site which, if used, would violate either the "effects" criteria (40 CFR 227) or the
"critical area" criteria (40 CFR 228), he shall certify that fact and request a waiver of the criteria at
40 CFR 227 and 228. To quote the report, "(t)hat waiver must be granted by the Administrator
[within 30 days], without option on his part, unless he finds that the result of the dumping would be
so unacceptable hi its adverse impact on one of the specifically named considerations as to justify
denial of the permit which could terminate the Civil Works project."
It seems clear from its legislative history that the provision was not intended to interfere in any way
with the processing of permit applications for "essential" dredging activities. The Joint Explanatory
Statement of the Conference Committee states that "(w)hile the Administrator is given a 30-day
review period over proposed waivers by the USAGE, this does not in any way indicate that the
review period should or could be protracted once all of the information required has been received
and processed .... The permit review process was not designed ... as a bottleneck." [Conference
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Dredged Material Permit/Project Review Manual
December 1992
Report accompanying H.R. 9727, H.R. Rep. No. 92-1546, 92d Cong., 2d Sess. (1972)]. The report
further comments that "(i)t is expected that until such time as economic and feasible alternative
methods for disposal of dredge material are available, no unreasonable restriction shall be imposed on
dredging activities essential for the maintenance of interstate and foreign commerce," thus reinforcing
a high priority on the permitting of "essential" dredging activities.
43 Federal Regulations
Both EPA and the USAGE have promulgated regulations that address the waiver process, although
neither Agency's regulations eiauurate much beyond the statutory language. USAGE regulations are
codified in 33 CFR 324.4(d) for permits and 33 CFR 336.2(d)(5) for Civil Works projects; EPA's are
contained in 40 CFR 225.3 and 225.4.
It should be noted that there are inconsistencies between the EPA and USACE regulations. While the
USAGE provisions allow a 15-day period during which the EPA Regional Administrator may remove
his objection (for permits) or give notice of intent to take action to prohibit use of the site (for
USACE projects), such procedures do not exist in the statute or in EPA's regulations. There is no
MPRSA or EPA regulatory provision permitting the EPA Regional Administrator to rescind his
finding of noncompliance with criteria at 40 CFR 227 and 228.
4.2.1 USACE Regulations for Permits and Civil Works Projects
USACE Permits
Section 324.4 of 33 CFR contains provisions for a waiver request as a result of EPA's finding of
noncompliance of an ocean dumping activity proposed for a USACE permit. Section 324.4(c)
generally establishes procedures for the District Engineer's evaluation of permits using criteria (40
CFR 227 and 228) developed by EPA. If the EPA Regional Administrator advises the District
Engineer that the proposed dumping does not comply with EPA criteria at 40 CFR 227 and 228, the
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Dredged Material Permit/Project Review Manual
December 1992
District Engineer may proceed to determine whether there is an economically feasible alternative
method or site available other than the proposed ocean disposal site. If the District Engineer
determines that there is no such alternative and that the proposed project is otherwise in the public
interest, he will so inform the Regional Administrator, explaining his reasons for such a determina-
tion. If the Regional Administrator does not remove his objection within 15 days, the District
Engineer will submit a report of mis determination to the Chief of Engineers for further action.
Subsection (d) requires the Chief of Engineers to evaluate the permit application and make a decision
to deny the permit or recommend its issuance. If the Chief decides that ocean dumping at the
proposed disposal site is required because of the unavailability of economically feasible alternatives,
he shall so certify and request that the Secretary of the Army seek a waiver from the Administrator of
the criteria at 40 CFR 227 and 228, hi accordance with EPA's procedures at 40 CFR 225.4.
Civil Works Projects
Section 336.2(d)(5) of 33 CFR describes similar procedures for USAGE dredging projects. If EPA
has advised the USAGE that the project activity does not comply with EPA criteria at 40 CFR 227
and 228, and the District Engineer subsequently determines that there is no economically feasible
alternative, he is to advise EPA of his intent to proceed with the project and explain his reasons for
doing so.
The EPA Regional Administrator then has 15 days to advise the USAGE that he will commence
procedures under Section 103(c) of MPRSA to prohibit use of a proposed disposal site [33 CFR §
336.2(d)(5)(iii)]. In this event, the case is elevated to the Secretary of the Army for further
coordination with the EPA Administrator. At this level, the USAGE is to evaluate the proposed
project and make a final determination on the proposed disposal. If it is determined that the project is
required because of the unavailability of economically feasible alternatives, the Secretary will seek a
waiver of the criteria at 40 CFR 227 and 228.
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Dredged Material Permit/Project Review Manual
December 1992
4.2.2 EPA Regulations
EPA's regulations [40 CFR 225.3 and 225.4] state that the Administrator is to grant the requested
waiver unless within 30 days of receiving the waiver request he determines that the proposed dumping
will have an unacceptably adverse effect on municipal water supplies, shellfish beds, wildlife,
fisheries (including spawning and breeding areas), or recreational areas. Notice of EPA's final
determination must be directed to the Secretary of the Army.
43 Guidance
If the USAGE chooses to seek a waiver of the criteria at 40 CFR 227 and 228, there are no further
opportunities for EPA Regions to coordinate with the USAGE because all remaining coordination
between the agencies is the responsibility of the EPA Administrator. Therefore, Regional EPA staff
should avail themselves of the many opportunities provided hi the regulations to work with their
USAGE counterparts early in the process to identify and address areas of conflict and to seek changes
to the project that can bring it into compliance. Early and effective coordination between EPA and
the USAGE ensures that all appropriate alternatives are considered carefully before reaching the point
of a waiver request. Alternatives to consider may include upland disposal of dredged material,
mitigation of dredging practices (e.g., seeking to avoid toxic hot spots in near-shore environments, if
possible), or measures to reduce impacts (e.g., capping contaminated material on flat bottom or hi
natural or man-made depressions with clean sediment to isolate the contaminants from the environ-
ment).
Because the EPA Administrator addresses the waiver request, EPA Regional staff should strive to
keep Headquarters informed of any potential waiver requests or of any Regional vetoes of USAGE
permits that could give rise to a waiver request, so that the Administrator may provide a well-
informed response to deny or grant the waiver within the 30-day period provided by the statute. A
denial requires a demonstration of unacceptable adverse effects on municipal water supplies, shellfish
beds, wildlife, fisheries (including spawning and breeding areas), or recreational areas. Therefore,
EPA staff should carefully document any identified effects, and report them along with any notice to
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Dredged Material Permit/Project Review Manual
December 1992
Headquarters of potential waiver requests, to provide the Administrator with complete information
with which to reach a decision.
In the event that a waiver is granted, every effort should be made to ensure that the disposal activity
undertaken as the result of a waiver is carried out in a manner that minimizes environmental impacts,
with special attention paid to its effects on municipal water supplies, shellfish beds, wildlife, fisheries
(including spawning and breeding areas), and recreational areas. If the Regional Administrator
withdraws his objection to proposed dumping activity or if the Administrator grants the waiver, EPA
should request in these communications that the USAGE review the alternatives considered earlier in
the planning process for the activity, as well as specific measures used to reduce impacts and plans to
monitor impacts of the dumping activity on these resources.
4-7
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-------
Section 5
ENFORCEMENT ACTIVITIES AND CIVIL PENALTY ASSESSMENT
-------
-------
5.0 ENFORCEMENT ACTIVITIES AND CIVIL PENALTY ASSESSMENT
This section briefly describes provisions of the MPRSA for penalty assessment and enforcement, as
well as current Federal enforcement regulations and activities, including USAGE regulatory
enforcement procedures for its Section 103 permit program (33 CFR 326). This section concludes
with EPA guidance on enforcement options and opportunities to work cooperatively with the USAGE
and the Coast Guard in the development of enforceable permit conditions and the assessment of
penalties for violations under the Act.
Sections 105 (Penalties) and 107 (Enforcement) of MPRSA assign various responsibilities related to
enforcement activities under the MPRSA. These enforcement-related responsibilities clearly require
close cooperation among the -><"»ncies. To assess penalties for violations under the act, EPA an^' be
USAGE must work together during the permit review and evaluation process to see that permit
conditions are drafted hi a manner to make them legally enforceable. In addition, the USAGE must
communicate information pertaining to MPRSA violations to EPA hi a timely manner to ensure an
informed decision about penalty assessments and coordinated enforcement responses. Similarly, EPA
and the Coast Guard must communicate effectively with each other regarding information needs of
EPA for penalty assessment and evidentiary data related to MPRSA violations.
5.1 Statutory Framework
Section 105 of the MPRSA provides for both administrative and criminal penalties for violations of
the Act, or regulations or permits issued pursuant to the Act. Under Section 105(a), EPA is
responsible for administrative penalty proceedings, which typically involve adjudicatory hearings.
Adjudicatory hearings are characterized by the use of a presiding "judge" who listens to evidence and
testimony regarding the violation and determines whether the accused party is guilty. Guilty parties
are subject to administrative penalties of up to $50,000 for each violation. / ny final administrative
decision can be appealed to U.S. District Court.
Under Section 105(b), criminal penalties can be levied on anyone who "knowingly" commits a
violation. Persons convicted of criminal acts are subject fines of up to $50,000, or one year
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imprisonment, or both. Criminal proceedings are litigated by the Department of Justice and
adjudicated in a U.S. District Court.
Section 105(d) also provides injunctive relief (an action to halt violations of the Act) for an imminent
or continuing violation. Injunctive actions are pursued by the Department of Justice.
Under Section 105(f), the Secretary may revoke or suspend a dredged material permit for a specified
period of tune. The permittee is allowed an opportunity for an administrative hearing concerning the
violation before suspension or revocation may take place.
Under Section 107(c), the Coast Guard is responsible for conducting enforcement monitoring and
field surveillance. The Coast Guard is required to report any enforcement information and evidence
that may be needed in an administrative or criminal enforcement action to EPA and the Department of
Justice.
5.2 Currant Enforcement Activities
The Coast Guard, the USAGE, and EPA must work cooperatively in the enforcement of the Act's
provisions. The Coast Guard's specified role is to conduct surveillance and other activity to prevent
the unlawful transportation of material for dumping, or unlawful dumping, and to supply information
and evidentiary material to EPA or the Attorney General for penalty assessment and prosecution. To
implement its enforcement authority under the Act, the USAGE has promulgated regulations that are
codified in 33 CFR 326. Because EPA is given the responsibility to assess administrative penalties
for MPRSA violations, it is important that EPA staff work closely with the USAGE to obtain timely
information about violations and to ensure that MPRSA permit language is enforceable.
5.2.1 USAGE Regulations
Section 326.3 of 33 CFR describes USAGE enforcement procedures for unauthorized activities. In
this section, the USAGE is enjoined to consider cooperative surveillance programs with other
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appropriate agencies at all levels and other available resources (including employees, members of the
public, and other agencies) to detect unauthorized activities requiring permits. After an unauthorized
activity is investigated and identified as a violation of the Act, formal notification to responsible
parties is required. If the violation involves an ongoing project, the District Engineer's notice may be
in the form of a cease and desist order, except in emergency situations under 33 CFR 325.2(e)(4). In
the latter case, the District Engineer may allow work to continue, subject to appropriate limitations
and conditions, during the process of the violation's resolution.
Subsection (d) of 33 CFR 326.3 authorizes the USAGE to order initial corrective measures,
depending on the impacts of the unauthorized completed work. To facilitate his decision on the initial
corrective measures required, the District Engineer is expressly encouraged to solicit the views of
EPA, the Fish and Wildlife Service, the National Marine Fisheries Service, and other Federal, State,
and local agencies. He should consider whether serious jeopardy to life, property, or important
public resources reasonably may be anticipated to occur during the period required for the ultimate
resolution of the violation. If he determines that initial corrective measures are required, he must
issue an order that specifies what corrective action is necessary and the time limits for response. This
order should specify that compliance will not foreclose the Government's options to initiate legal
action or to require the submission of a permit application later.
Another USAGE option in the case of unauthorized activity is to issue an after-the-fact permit [33
CFR 326.3(e)]. The District Engineer is authorized to issue an after-the-fact permit following the
completion of any required initial corrective measures, unless one or more of the following circum-
stances exist.
33 CFR 326.3 (e)
(i) When restoration of U.S. waters that eliminates current and future detrimental
impacts to the satisfaction of the District Engineer has been completed
(ii) With a violation for which the District Engineer determines that legal action is
appropriate, until such legal action has been completed
(Hi) When a Federal, State, or local authorization or certification required by Federal
law has already been denied
(iv) When the District Engineer is aware of enforcement litigation brought by other
Federal, State, or local regulatory agencies, unless he determines that concurrent
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processing of an after-the-fact permit application is clearly appropriate [Taking
positions that are in conflict with the viewpoints of other agencies is permitted,
although coordination with EPA in 33 CFR 326.2 and 326.3(g) is provided
because of EPA's "independent enforcement authorities."]
Section 326.4 of 33 CFR concerns supervision of authorized (permitted) activities, including
inspections and noncompliance situations. While the Coast Guard is responsible for inspecting
permitted ocean dumping activities under MPRSA Section 107(c), the USAGE has discretionary
responsibility for taking reasonable measures to inspect permitted activities to ensure that they comply
with permit terms and conditions. As is the case with unauthorized activities, the USAGE is
encouraged to seek the assistance of USAGE employees, members of the public, and other agencies to
supplement reports of suspected violations of USAGE permits. In the case of violations of penm. -
terms or conditions, the District Engineer may, at his discretion, contact the permittee, request
corrected plans reflecting actual work, if needed, and attempt to resolve the violation, by either
voluntary compliance by the permittee or permit modification to reflect the actual work done. If a
mutually agreeable resolution cannot be reached, a written order may be issued, specifying a tune
period of not more than 30 days for bringing the project into compliance with the permit require-
ments. If the permittee fails to comply within the specified tune, the District Engineer may consider
suspension/revocation procedures or may recommend legal action. Such legal action, according to 33
CFR 326.5, may consist of criminal or civil actions to obtain penalties for violations, compliance with
any orders and directives issued up to that tune, or other relief as appropriate, such as an injunction
against further work on the project.
5.2.2 USAGE Enforcement Activities
The USAGE dredging activities involve both Government dredges and contract dredges. Determining
how and where dredged material is placed is more appropriately described as disposal site manage-
ment using various forms of monitoring or quality control than as enforcement. Dredging operations
conducted under a permit may be monitored in similar ways as those for Civil Works projects.
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Contract specifications about documenting dredged material placement, quantities, and other
information may vary among different Districts. Districts may choose to place taut-line buoys at
disposal sites to control the placement of dredged material.
Specific contract requirements may include the following.
• Navigation systems that can adequately fix the latitude and longitude (or X and Y in State
plane coordinates) of the disposal point
• Written logs of times, positions, quantities, and dates for all disposal events
• Track plots of vessel transits, indicating the vessel courses to and from the disposal point
for each disposal ev^.,.
• Records of the vessel/dump-scow drafts at the point of departure from the dredging site,
and at 1- to 2-minute intervals during transit to and from the disposal site.
• Storage of disposal information on computer diskettes and delivery of the data to the
USAGE on a daily basis
• Telephone reports to USAGE within 24 h of any accidental disposal, followed by a
detaUed written report within a specified number of days to document all pertinent infor-
mation about the quantity and position of the misplaced dredged material, including rea-
sons for the accidental disposal (The USAGE forwards copies of the reports to the appro-
priate EPA Ocean Dumping Coordinators.)
• Agreements to deduct contractor payment for misplaced dredged material, and/or
requirements for the contractor to remove any misplaced dredged material.
Some Districts have Government inspectors on the dredges or dump scows 24 hours per day, while
others rely on electronic navigation and monitoring systems to document the dredge or dump scow
activity.
The Districts may perform hydrographic surveys of the ocean-disposal sites before and after each
dredging operation to evaluate and monitor the effectiveness of the disposal process and determine
whether the disposal buoys will need to be moved.
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The Dredging Research Program is currently developing a Silent Inspector System that will simplify
the disposal management process. This system is a "black box" that will monitor numerous sensors
on the hopper dredges, store the information along with navigation information, and either transmit
daily to the District field office or store the data for periodic on-board collection. This system will be
expanded to other types of dredges and disposal vessels. -
53 Guidelines to Increase EPA Participation in Enforcement
EPA and the USAGE both are strongly encouraged under the Act to cooperate with each other and to
draw upon the resources of oil . agencies to accomplish their MPRSA activities. Because resou. ,.z
and staff are often limited among the Federal agencies, and because one agency may have capabilities
that the other lacks at a given time, it is important: that a cooperative relationship be forged to take
advantage of the best resources of both agencies (and other agencies, as appropriate) for enforcement
of dredged material ocean-disposal permits.
EPA and the USAGE should actively participate in each other's enforcement efforts. For instance,
EPA and the USAGE should jointly develop boilerplate permit language that could be included in all
standard permits. EPA Regions should also work closely with the USAGE in developing special
permit conditions to supplement the boilerplate language when specific dredging projects present
particular concerns. Examples of Region n and K boilerplate permit terms and conditions are
contained in Appendix G.
Once the USAGE begins enforcement measures to ensure compliance with permit terms, there are
specified opportunities for EPA involvement described in the USAGE regulations. First, 33 CFR
326.3(g) requires that while any USAGE enforcement actions, including interim protective measures,
after-the-fact-permits, and other enforcement actions, are under consideration, the District Engineer
should coordinate with EPA to avoid conflict or duplication. In general, the USAGE and EPA should
communicate frequently and regularly about enforcement activities to increase the efficiency and
effectiveness of enforcement efforts.
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Other opportunities for coordination are specified in the regulations. For instance, as initial
corrective measures are being considered to remediate the impacts of unauthorized work, the USAGE
is to consult with EPA (as well as the Fish and Wildlife Service, the National Marine Fisheries
Service, and other agencies) to identify appropriate corrective measures. The USAGE is also
encouraged to work with the Coast Guard and other agencies (and members of the public) to
supplement reports of suspected violations of USAGE permits. When enforcement opportunities
arise, EPA Regional Ocean Dumping Coordinators should create or coordinate with an interagency
investigation team that is comprised of staff from the Coast Guard, the USAGE, and the EPA
Regional Counsel. In this manner, the resources and information available to the respective agencies
can be collectively compared and analyzed in order to coordinate the most efficient and successful
enforcement action.
Depending upon the needs and special concerns of the geographic region, agreements between EPA,
the USAGE, and the Coast Guard may be appropriate to define specific enforcement-related tasks.
For instance, EPA Regions are encouraged to negotiate agreements on appropriate enforcement
responses as part of individual field agreements. In addition, the MOA between the Department of
the Army and EPA concerning Federal enforcement for Section 404 under the CWA and its resulting
field agreements may serve as a helpful model for Regional agreements with USAGE Districts and
Divisions for enforcement of MPRSA Section 103 permits.
For example, the 404 MOA was developed to make the statutory enforcement authorities of EPA and
the USAGE more effective given the limited resources and staff of either agency alone. Because the
USAGE is the Federal permit-issuing authority for Section 404 permits, the agreement assigns to the
USAGE the responsibility to determine whether an alleged illegal discharge of dredged or fill material
is authorized under an individual or general permit.
EPA's role under the MOA is to contact the USAGE when it becomes aware of an alleged illegal
discharge and request a determination as to whether the discharge is authorized by a 404 permit. This
determination must be provided within a specified time frame or else EPA may continue to investigate
the case and arrive at its own final determination as to whether the activity constitutes an unauthorized
discharge.
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For situations in which an alleged illegal 404 discharge is ongoing and EPA reasonably believes that
such discharge is not authorized, EPA may take immediate enforcement action against the discharger
when it is necessary to minimize impacts to the environment. However, EPA must contact the
appropriate USAGE office and request a determination as to whether the discharge is authorized by
permit. A subsequent determination by the USAGE that the discharge is authorized represents a final
enforcement decision for that particular case.
It was intended that, within the framework of the 404 MOA, regional and/or local field agreements
would then be tailored to set out agreed-upon procedures for cooperating hi an enforcement process.
Such field agreements could serve as appropriate mechanisms for ocean dumping enforcement
activities as well.
It is also advisable-that EPA Regional/field staff be familiar with EPA penalty policies and enforce-
ment strategies related to ocean dumping and that appropriate staff attend training courses and
workshops related to enforcement (particularly of the MPRSA). Staff attending such workshops
should be in positions of authority for coordinating or participating in EPA's enforcement response to
potential MPRSA violations to encourage a level of continuity within the Agency and to help
institutionalize an effective approach to MPRSA enforcement. EPA's general enforcement regulations
are contained in 40 CFR 22.
To maximize early EPA participation and an increased enforcement role, it is important to exploit, as
early as possible, opportunities to consult and advise. For example, EPA Regions should request to
be notified by the USAGE when disposal is authorized and scheduled. More important, however, is
frequent communication with USAGE counterparts, including dedicated tracking of Public Notices
published by the USAGE. To achieve an active level of participation and communication with the
USAGE, EPA Regional Ocean Dumping Coordinators should attend USAGE project planning
meetings regularly and represent EPA positions by commenting on proposed projects and permits.
For example, EPA Regional staff should consider EPA Regional coordination with the USAGE'S
initiative for a life-cycle management approach to project management. Under this approach, life-
cycle project managers are appointed to oversee a USAGE project's review, design, specifications,
planning, and decisions from start to finish. Likewise, EPA Regions should identify District life-
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December 1992
cycle managers in their Region, and then assign an EPA counterpart (using EIS resources as
appropriate throughout the process) to coordinate and keep current with USAGE project activities.
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Section 6
REFERENCES
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6.0 REFERENCES
Cotter. 1992. Memorandum from P. Cotter, EPA Region IX, to T. Chase, EPA Headquarters
June 5, 1992.
EPA. 1979. Legal Compilation: Statutes and Legislative History — Executive Orders, Regulations,
Guidelines and Reports, Supplement I, Volume III, Water. U.S. Environmental Protection
Agency, Washington, DC.
EPA. 1984. Guidance for the Preparation of Combined Work/Quality Assurance Project Plans for
Environmental Monitoring. U.S. Environmental Protection Agency, Office of Water Regula-
tions and Standards, Washington, DC.
EPA. 1986. Ocean Dumping Site Designation Delegation Handbook for Dredged Material. Prepared
for the U.S. Environmental Protection Agency, Office of Marine and Estuarine Protection,
Washington, DC, by Science Application International Corporation, McLean, VA, under
contract to Battelle, Ocean Sciences and Technology Department, Duxbury, MA. September
1986. 119pp incl. appendices
EPA. 1987a. Quality Criteria for Water 1986. U.S. Environmental Protection Agency, Office of
Water Regulations and Standards, Washington, DC. EPA 440/5-86-001.
EPA. 1987b. Guidance Manual for Ocean Dumping Site Designation and Monitoring. Prepared for
the U.S. Environmental Protection Agency, Office of Marine and Estuarine Protection,
Washington, DC, by Battelle New England Marine Research Laboratory and Tetra Tech, Inc.
EPA. 1992a. Dredged Material Ocean Dumping Reference Document. Final Rpt. submitted to the
U.S. Environmental Protection Agency, Washington, DC, by Battelle Ocean Sciences,
Duxbury, MA, under Work Assignment 3-114, Contract No. 68-C3-0105. 55pp.
EPA. 1992b. Managing Dredged Material for Ocean Disposal (draft). Submitted to the U.S. Envir-
onmental Protection Agency, Washington, DC, by Battelle Ocean Sciences, Duxbury, MA,
under Work Assignment 3-24, Contract No. 68-C3-0105.
EPA/USACE. 1977. Environmental Protection Agency/United States Army Corps of Engineers
Technical Committee on Criteria for Dredged and Filled Material. Ecological Evaluation of
Proposed Discharge of Dredged Material into Ocean Waters; Implementation Manual for
Section 103 of Public Law 92-532 (Marine Protection, Research, and Sanctuaries Act of
1972). July 1977 (second printing April 1978). Environmental Effects Laboratory, United
States Army Engineer Waterways Experiment Station, Vicksburg, MS. 24 pp + appendices
EPA/USACE. 1991. Evaluation of Dredged Material Proposed for Ocean Disposal — Testing
Manual. U.S. Environmental Protection Agency, Washington, DC, and United States Army
Corps of Engineers. EPA-503/8-91/001. 219 pp + appendices
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December 1992
EPA/USACE. 1992. Evaluating Environmental Effects of Dredged Material Management Alternatives
— A Technical Framework. U.S. Environmental Protection Agency and Department of the
Army, U.S. Army Corps of Engineers. Washington, DC. EPA842-B-92-008. November
1992. 79pp + appendices
Fredette, T.J., J.E. Clausner, D.A. Nelson, E.B. Hands, T. Miller-Way, J.A. Adair, V.A. Sotler,
and FJ. Anders. 1990. Selected Tools and Techniques for Physical and Biological Moni-
toring of Aquatic Dredged Material Disposal Sites. Tech. Rpt. D-90-11. United States
Department of the Army Waterways Experiment Station, Vicksburg, MS.
Lee, H., B.L. Boese, J. Pelletier, M. Winsor, D.T. Spect, and R.C. Randel. 1989. Guidance
Manual: Bedded Sediment Bioaccumulation Tests. U.S. Environmental Protection Agency,
ERL-N, Pacific Ecosystems Branch, Bioaccumulation Team, Newport, OR. ERL-N Contrib.
No. Nil 1. EPA/600/X-89/302. 232pp.
National Advisory Committee on Oceans and the Atmosphere. 1981. The Role of the Ocean in a
Waste Management Strategy. United States Government Printing Office, Washington, DC.
National Research Council (NRC). 1990. Managing Troubled Waters: The Role of Marine Environ-
mental Monitoring. National Academy Press, Washington, DC. 125 pp.
PTI. 1992. A Guide to Requesting and Evaluating Chemical Analyses. PTI Environmental Services,
Bellevue, WA. 76pp + appendices
Pequegnat, W.E., BJ. Gallaway, and T.D. Wright. 1990. Revised Procedural Guide for Designation
Surveys of Ocean Dredged Material Disposal Sites. Department of the Army, Waterways
Experiment Station, Corps of Engineers, Vicksburg, MS. Tech. Rpt. D-90-8. 262pp
USAGE. Undated. The Purple Book — Managers and Supervisors Training Handbook. United
States Army Corps of Engineers, CEHNDP 350-1-1.
USAGE. Undated. Sponsor' Partnership Kit (draft). United States Army Corps of Engineers,
Washington, DC. 59 pp.
USAGE. 1983. Economic and Environmental Principles and Guidelines for Water and Related Land
Resources Implementation Studies. United States Army Corps of Engineers,
Washington, DC.
USAGE. 1989a. Index ofUSACE/OCE Publications. United States Army Corps of Engineers,
Washington, DC. Pamphlet Number EP 25-1-1.
USAGE. 1989b. Digest of Water Resources Policies and Authorities. United States Army Corps of
Engineers, Washington, DC. CECW-RR Pamphlet No. 1165-2-1.
USAGE. 1990a. Policy and Planning Guidance for Conducting Civil Works Planning Studies.
United States Army Corps of Engineers, Washington, DC. USAGE Regulation Number ER
1105-2-100.
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USAGE. 1990b. Regulators'Handbook. United States Army Corps of Engineers, Washington, DC.
Word, J.Q., J.A. Ward, J.A. Strand, N.P. Kohn, and A.L. Squires. 1990. Ecological Evaluation of
Proposed Discharge of Dredged Material from Oakland Harbor into Ocean Waters (Phase H
of 42-Foot Project). Prepared for United States Army Corps of Engineers. U.S. Department
of Energy Contract No. DE-AC06-76RLO 1830. September 1990.
Zeller, R.W. and T.A. Wastler. 1986. Tiered ocean disposal monitoring will minimize data
requirements. In: Oceans 86, 3:1004-1009. Monitoring Strategies Symposium, September
23-25, 1986, Washington, DC. Marine Technology Society, Washington, DC.
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Appendix A
EPA MEMORANDUM REGARDING THE DISPOSAL OF
DREDGED MATERIAL IN THE
TERRITORIAL SEA
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Appendix A
Dredged Material Pennit/Project Review'Manual
Appendix A. EPA MEMORANDUM REGARDING THE DISPOSAL OF
DREDGED MATERIAL IN THE TERRITORIAL SEA
_
I 5322 * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
*'«» •BO*1*' WASHINGTON. D C. 20460
MW28 BOO
MEMORANDUM
SUBJECT: Regulation of Beach Nourishment
FROM: Catherine A. Winer
- Attorney
Water Division (LE-132W)
TO: Menchu Martinez
Office of Wetland Protection (A-104F)
Tou have asked whether section 404 of the Clean Water Act
(CWA) or section 103 of the Marine Protection, Research, and
Sanctuaries Act (MPRSA) governs the placement of dredged material
in the territorial seas for the purpose of beach nourishment
(i.e., building up beach elevation to increase stability and
counter erosion). For the reasons below, I believe that section
404 is the governing provision.
Section 404, on its face, clearly covers the discharge of .
dredged material, for any purpose, into the territorial seas.
Bowever, if the MPRSA were also to cover the activity in
question, the MPRSA would take precedence, since section 106(a)
of the MPRSA provides that that Act supersedes any other
permitting programs "to the extent that they purport to authorize
any activity regulated by (MPRSA] . . . ." Examination of the '
the statute (as interpreted by EPA and Corps regulations)
indicates that the MPRSA definition of dumping excludes the
placement of dredged material for beach nourishment, and
therefore that only section 404 covers that activity.
The definition of dumping in section 3(f) of MPRSA excludes:
the construction of any fixed structure or artificial island
tor] the intentional placement of any device in ocean waters
or on or in the submerged land beneath such waters, for a
purpose other than disposal, when such construction or such
placement is otherwise regulated by Federal or State law or
occurs pursuant to an authorized Federal or State program.
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Appendix A
Dredged Material Permit/Project Review Manual
Although there is arguably some room for debate, beach
nourishment say reasonably be analogized to "construction of a
fixed structure or artificial island," and it is clearly for a
purpose other than disposal and is otherwise regulated under
section 404. Hence, beach nourishment may reasonably be excluded
from the statutory definition of dumping.
Such a reading is supported by BPA's and the Corps'
regulations. Since first promulgated in 1975, the section
404(b)(l) guidelines have interpreted the above exclusion from
the definition of dumping to be coextensive with fill material
(that is, fill material in the territorial seas is regulated
under section 404; dredged material in the territorial seas and
beyond is regulated under .MPRSA)(40 CFR 230.2(b)). The Corps'
civil works regulations address the respective coverage of the
two statutes similarly but with examples. Specifically, they
provide, at 33 CPR I 336.0(b), that where the district engineer
determines that the discharge of dredged material into the
territorial seas "would be for the primary purpose of fill, such
as the use of dredged material for beach nourishment. . . .", the
discharge will be evaluated under section 404 of tho Clean Water
Act; otherwise dredged material in the territorial seas is
covered by the MPRSA. (BPA's ocean dumping regulations simply
incorporate the statutory definition of "dumping", including the
exclusions contained therein, and cross-reference an earlier,
less specific version of the Corps' regulations.)
Accordingly, unless or until BPA and the Corps change their
regulations, beach nourishment in the territorial s«an should be
considered to be subject to section 404 rather than to the MPRSA.
cc: Ann Nutt (Reg. IX)
Richard Witt
a Some of the legislative history suggests that the
requirement that an activity be for a purpose other than
disposal applies only to placement of devices and not to
construction. Resolution of this issue is immaterial to the
question you posed.
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Appendix B
EXAMPLES OF USAGE REGULATORY GUIDANCE LETTERS
Regulatory Guidance Letters (RGL) are issued by USAGE Headquarters as a means to transmit
guidance on the permit program to its Division and District Engineers. RGLs are only used to
interpret or clarify existing guidance.
RGLs are sequentially numbered and expire on a specified date. Unless superseded by specific
provisions of subsequently issued regulations or RGLs, the guidance provided in RGLs generally
remains valid after the expiration date.
The USAGE no longer mails RGLs directly to individuals and interested parties. Instead, new and
existing RGLs are periodically published in the Federal Register. On January 22, 1991, the USAGE
published all of the current RGLs (RGL 89-01 - RGL 90-9; Federal Register, Vol. 56, No. 14, p.
2410). The USAGE plans to continue publishing new RGLs upon issuance, and the complete text of
current RGLs every January hi the Federal Register.
The following appendix contains two examples of RGLs: Testing Requirements for Dredged Material
Evaluations (RGL 87-8) and the Extension of RGL 87-8 (RGL 90-03).
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Appendix B
Dredged Material Permit/Project Review Manual
US Arniy Corps
of Engineers
Office. Chief of Engineers
No. 87-8
ist/A'j*-1"11^ "nH^affirnyj^Bsn
CBCW-OR
SUBJECT: -testing Requirements for Dredged Material Evaluations
Date jgAUG1987 Expires 31 Dec 1989
1. Corps regulations at 33 CFR 323. 6 (a) state in part that "The district
«
marine environment, ecological systens or economic potential i3Xs!« '
3. nils letter restates the longstanding policy that Corps testina and
^
4.
The CWA Section 401 water quality certification, on the other hand
Section 401 reuxren^nts should be similar for similar activities
necessary for a Section 401 water quality certification?
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Appendix B
Dredged Material Permit/Project Review Manual
CBCW-OR
SUBJECT: Testing Requirements for Dredged Material Evaluations
5. Some states have tried to require predischarge testing beyond what is
deemed necessary by the Corps. Predictive testing can be a reasonable
prerequisite to reaching a sound decision on whether to allow a discharge. If
a state deems that certain tests are necessary before it reaches a decision on
water quality certification, it must do so through its own procedures.
Insofar as a state's 401 certification testing requirements coincide with the
Corps testing requirements, one set of results should satisfy both. The Corps
does not believe that the intent of Section 401 of the CWA would be met by
the states issuing a certification before evaluating all tests that they
deemed necessary to protect their state water quality standards. Therefore,
district engineers should not consider as a final Section 401 action, any
certification which contains conditions specifying predischarge requirements.
Rather, they should notify the appropriate state agency of their determination
and the reasons for it so the state can take a final action if it so chooses.
Conditions requiring post- -discharge monitoring are subject to adoption
consistent with 33 CFR 325.4.
6. In formulating regional general permits, districts may develop in
agreement with the state certifying agency, a testing protocol, the results of
which will automatically satisfy predefined certification requirements. The
testing protocol, however, cannot be more rigorous than the one to which our
own Federal projects are subjected.
7. Districts which are experiencing repeated problems with state agencies
that are reaching inaccurate conclusions based on their lack of knowledge of
the effects of dredged material discharges, should consider sponsoring a
generic briefing for the state agencies through the Dredging Operations
Technical Support {DOTS) program. While generic presentations to state
agencies may be appropriate, DOTS assistance to state agencies on individual
permit applications is not. DOTS is intended to support our field elements on
all respects of dredging and disposal. To make the program available to
individual state agencies or applicants would strain the available time and
resources of our experts and be in direct competition with those private.
consultants who stay current with the state-of-knowledge on dredged material
research and are capable of providing this service. DOTS assistance can be
obtained through CEWES-EP-D (FTS 542-3624).
8. This guidance expires 31 December 1989 unless sooner revised or rescinded.
FOR THE CHIEF OF ENGINEERS:
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Appendix B
Dredged Material Permit/Project Review Manual
2411; Federal Register / Vol. 56. No. 14 / Tuesday, January 22, uwl / Noace»
Far the Director of Civil Worts
}ohn P. Hznore,
Chief, Operations. Coratmction and
SfodintstDivitioa, Directorate of Civil
Work*.
Regulatory Guidance Letter (RGL)
RGL 90-01, Date: 24 Jem 90. Exp. Date: 13
Jan SZ
Subject- Nationwide Permit Verification
1. The purpose of this guidance is to
provide standard language to be used in
letters of verification on nationwide
permits until they are reissued.
modified, revoked, cr expire.
2. The nationwide permits at 33 CFR
33O5(a] will expire on 13 January 1992
unless they are modified or reissued.
The regulations at 33 CFR 330.11 provide
that letters verifying an activity
complies with the terms and conditions
of a nationwide permit will state mat
the verification is valid for a period of
ao mote man two years. Furthermore,
1330.11 states that S 330.12 takes
precedence over § 330.11. Modification
of all the nationwide permits (at a
minimum by adding conditions) is being
considered and is likely to occur. It is
not known when this will occur.
Therefore, the indication of a time
period in the verification letters is no
longer appropriate.
3. Until the nationwide permits are
modified or reissued, the following
statement (or equivalent as appropriate]
should be included in all nationwide
permit verification' letters: This
verification win be valid until the
nationwide permit is modified, reissued.
or revoked. All the nationwide permits
are scheduled to be modified, reissued
. or revoked prior to 13 January 1992/It is
incumbent upon you to remain informed
of changes to the nationwide permits.
We wffl issue a public notice
announcing the changes when they
Occur. Furthermore, if you commence or
are under contract to commence this
activity before the date the nationwide
permit is modified or revoked, you win
have twelve months from the date of the
modification or revocation to complete
the activity under the present terms and
conditions of this nationwide permit
4. This guidance expires on 13 January
1992 unless sooner modified or
rescinded
for the Director of Civil Works
JoluiP.Elraoir,
Chief. Operations, Construction and
Readiness Division, Directorate of Civil
Works.
Regulatory Guidance Letter (RGL)
RGL 90-02, Date: 24 fan 30. Exp. Date: 31
Dec. O2
Subject: Permits for Structures and Fills
which affect the Territorial Seas
1. The construction of solid fill
structures and fills along the coasts may
extend a State's seaward boundary
under the Submerged Lands Act, 43
US.C. 1301-1315. Accordingly, the
regulations in 33 CFR 320.4(z) require
that if it is determined that such a
structure of work could extend the
coastline or baseline from which the
territorial sea is measured, the Solicitor
of the Department of the Interior (DOI)
must be contacted prior to the district
issuing a permit for such structure.
2. Effective immediately, the Minerals
Management Service (MMS), Outer
Continental Shelf (DCS) Survey Group
is to be added permanently to the public
notice mailing lists of all coastal
districts for all applications within
coastal and ocean waters. The public
notices must be sent to the MMS, DCS
Survey Group, Mail Stop 825. Denver
Federal Center. Building 41. room 297B,
Post Office Box 25165, Lakewood,
Colorado 80225. [This requirement will
be added to 33 CFR 325.3 the next time
tiie regulations are revised.) The
Solicitor of the DOI will coordinate with
the district engineer if the Solicitor
•believes that the baseline will be
affected.
3. If the Solicitor informs the district
engineer that the proposed project may
affect the baseline from which the
territorial sea is measured, the district
engineer will request a waiver from the
affected state which would waive the
state's interest in any increase in
submerged lands caused by a change in
the baseline. In the event the state
refuses to grant the requested waiver
and the district engineer believes that
the permit should be issued, the final
decision on the permit will be made by
the Assistant Secretary of the Army
(Civil Works) (ASA(CW)). For example.
a permit for a solid fill at a naval base
for national security reasons may not be
contrary to the public interest even
though the requested waiver is not
issued by the state. In such cases, the
district will complete all permit
documentation including his
recommendation on the permit and
forward the documentation to
HQUSACE. ATTN: CECW-OR.
4. This guidance expires 31 December
1991 unless sooner revised or rescinded.
B-3
For thtDlnctof of Civil Works
Chief, Operation*. Caattntaion and
Ibatiintts Division. Dirtctorau of Civil
Worts*.
Regulatory Guidance Latter (RGL)
RGL SO-03. Dot*: 24 Jan 90, Exp. Dote: 31
Dec 92
Subject! Extension of Regulatory
Guidance Letter (RGL) 97-e
RGL 87-8, subject 'Testing
Requirements for Dredged Material
Evaluation" is extended until 31
December 1992 unless sooner revised or
rescinded.
ForthtDinctorofCirU WoAt
John p. QmoiY,
Chief, Operations, Ceattnatiaa and
Readiness Division, Directorate of Civil
Works.
Regulatory Guidance Letter (RGL)
RGL No. 90-04, Date: 13 Mat SO. Exp. 31
Dec 32
Subject Water Quality Considerations
(33CFR320.4(d))
1. Section 320.4(d) provides that a
state's certification of compliance with
applicable effluent limitations and water
quality standards wffl be conclusive
with respect to water quality
considerations, unless the
Environmental Protection Agency (EPA)
advises the district engineer (DE) of
"other water quality aspects" mat he
should examine.
2. The DE can usually presume that a
state's water quality certification
satisfies the requirements of section 401
of the Clean Water Act (CWA). 40 CFR
230.10(b)[l). and 33 CFR 320.4(d). If,
however, EPA disagrees with the state's
conclusions or raises water quality
concerns beyond the state certification's
scope, the DE shall consider EPA's
objections end concerns as "other water
quality aspects," as provided by 33 CFR
320.4(d). "Other water quality aspects."
therefore, include water quality
concerns outside the scope of the state's
section 401 certification review, indirect
impacts on water quality aspects thai
the state certification does not addreu.
and matters addressed in the state
certification with which EPA has a
different viewpoint •
3. In cases where the EPA regional
Administrator advises the DE of "other
water quality aspects" to be taken into
consideration, the DE shall not consider
the state section 401 certification
conclusive regarding water quality
considerations. Although the state
-------
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Appendix C
USAGE PERMIT REGULATIONS: 33 CFR 320, 324-326
-------
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of the Army, DoD
§320.1
FART 320—GENER -' REGULATORY
POLICIES
Sec.
320.1 Purpose and scope.
320.2 Authorttles to issue permits.
320.3 Related laws.
320.4 General policies for evaluating
permit applications.
4W
f 320.1 Purpose and scope.
(a) Regulatory approach of the Corps
o/rnoineers. (l) The TJ.S. Army Corps
of Engineers has been involved in reg-
ulating certain activities in the na-
tion's waters since 1890. UntD 1968
the primary thrust of the Corps' regu-
latory program was the protection of
navigation. As a result of several new
laws and judicial decisions, the pro-
gram has evolved to one involving the
consideration of the full public inter-
est by balancing the favorable impacts
against the detrimental impacts. This
is known as the "public interest
review." The program is one which re-
flects the national concerns for both
the protection and utilization of im-
portant resources.
(2) The Corps is a highly decentral-
ized organization. Most of the author-
ity for administering the regulatory
program has been delegated to the
thirty-six district engineers and eleven
division engineers. If a district or divi-
sion engineer makes a final decision on
a permit application In accordance
with the procedures and authorities
contained in these regulations (33
CFR Parts 320 through 330). there is
no administrative appeal of that deci-
sion.
(3) The Corps seeks to avoid unnec-
essary regulatory controls. The gener-
al permit program described in 33
CPU Parts 325 and 330 is the primary
method of eliminating unnecessary
federal control over activities which do
not justify individual control or which
are adequately regulated by another
agency.
(4) The Corps is neither a proponent
nor opponent of any permit proposal.
However, the Corps believes that ap-
plicants are due a timely decision. Re-
ducing unnecessary paperwork and
delays is a continuing Corps goal
(S) The Corps believes that state and
federal regulatory programs should
complement rather than duplicate one
.another. The Corps uses general per-
mits, joint processing procedures.
interagency review, coordination, and
authority transfers (where authorized
by law) to reduce duplication.
(6) The Corps has authorized its dis-
trict engineers to issue formal determi-
nations concerning the applicability of
the Clean Water Act or the Rivers and
Harbors Act of 1899 to activities or
tracts of land and the applicability of
general permits or statutory exemp-
tions to proposed activities. A determi-
nation pursuant to this authorization
shall constitute a Corps final agency
action. Nothing contained in this sec-
tion is intended to affect any author-
ity EPA has under the Clean Water
Act.
(b) Type* of activities regulated.
This Part and the Parts that follow
(33 CFR Parts 321 through 330) pre-
scribe the statutory authorities, and
general and special policies and proce-
dures applicable to the review of appli-
cations for Department of the Army
(DA) permits for controlling certain
activities in waters of the United
States or the oceans. This part identi-
fies the various federal statutes which
require that DA permits be issued
before these activities can be lawfully
undertaken; and related Federal laws
and the general policies applicable to
the review of those activities. Parts
321 through 324 and 330 address spe-
cial policies and procedures applicable
C-l
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Appendix C
Dredged Material Permit/Project Review Manual
§320.2
to the following specific classes of ac-
tivities:
(1) Dams or dikes in navigable
waters of the United States (Part 321);
(2) Other structures or work includ-
ing excavation, dredging, and/or dis-
posal activities, in navigable waters of
the United States (Part 322);
(3) Activities-that alter or modify
the course, condition, location, or ca-
pacity of a navigable water of the
United States (Part 322);
(4) Construction of artificial islands,
installations, and other devices on the
outer continental shelf (Part 322);
(5) Discharges of dredeed or fill ma-
terial into waters of the united States
(Part 323);
(6) Activities involving the transpor-
tation of dredged material for the pur-
pose of disposal in ocean waters (Part
324); and
(7) Nationwide general permits for
certain categories of activities (Part
330).
(c) Forms of authorization. DA per-
mits for the above described activities
are issued under various forms of au-
thorization. These include individual
permits that are issued following a
review of individual applications and
general permits that authorize a cate-
gory or categories of activities in spe-
cific geographical regions or nation-
wide. The term "general permit" as
used in these regulations (33 CFR
Parts 320 through 330) refers to both
those regional permits issued by dis-
trict or division engineers on a region-
al basis and to nationwide permits
which are issued by the Chief of Engi-
neers through publication in the FED-
ERAL REGISTER and are applicable
throughout the nation. The nation-
wide permits are found in 33 CFR Part
330. If an activity is covered by a gen-
eral permit, an application for a DA
permit does not have to be made. In
such cases, a person must only comply
with the conditions contained in the
general permit to satisfy requirements
of law for a DA permit. In certain
cases pre-notification may be required
before initiating construction. (See 33
CFR 330.7)
(d) General instructions. General
policies for evaluating permit applica-
tions are found in this part. Special
policies that relate to particular activi-
33 CFR Ch. II (7-Lfl Edition)
ties are found in Parts 321 through
324. The procedures for processing in-
dividual permits and general permits
are contained in 33 CFR Part 325. The
terms "navigable waters of the United
States" and "waters of the United
States" are used frequently through-
out these regulations, and it is impor-
tant from the outset that the reader
understand the difference between the
two. "Navigable waters of the United
States" are defined in 33 CFR Part
329. These are waters that are naviga-
ble in the traditional sense where per-
mits are required for certain work or
structures pursuant to Sections 9 and
10 of the Rivers and Harbors Act of
1899. "Waters of the United States"
are defined in 33 CFR Part 328. These
waters include more than navigable
waters of the United States and are
the waters where permits are required
for the discharge of dredged or fill ma-
terial pursuant to section 404 of the
Clean Water Act.
1320.2 Authorities to iosne permits.
(a) Section 9 of the Rivers and Har-
bors Act, approved March 3. 1899 (33
U.S.C. 401) (hereinafter referred to as
section 9). prohibits the construction
of any dam or dike across any naviga-
ble water of the United States in the
absence of Congressional consent and
approval of the plans by the Chief of
Engineers and the Secretary of the
Army. Where the navigable portions
of the waterbody lie wholly within the
limits of a single state, the structure
may be built under authority of the
legislature of that state if the location
and plans or any modification thereof
are approved by the Chief of Engi-
neers and by the Secretary of the
Army. The instrument of authoriza-
tion is designated a permit (See 33
CFR Part 321.) Section 9 also pertains
to bridges and causeways but the au-
thority of the Secretary of the Army
and Chief of Engineers with respect to
bridges and causeways was transferred
to the Secretary of Transportation
under the Department of Transporta-
tion Act of October 15.1966 (49 U.S.C.
1155g(6)(A)). A DA permit pursuant to
section 404 of the Clean Water Act is
required for the discharge of dredged
or fill material into waters of the
C-2
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, Dopt. of tht Army, DoD
§320.2
United States associated with bridges
and causeways. (See 33 CFR Part 323.)
(b) Section 10 of the Rivers and Har-
bors Act approved March 3, 1899. (33
U.S.C. 403) (hereinafter referred to as
section 10), prohibits the unauthorized
obstruction or alteration of any navi-
gable water of the United States. The
construction of any structure in or
over any 'navigable water of the
United States, the excavating from or
depositing of material in such waters.
or the accomplishment of any other
work affecting the course, location.
condition, or capacity of such waters is
unlawful unless the work has been rec-
ommended by the Chief of Engineers
and authorized by «*c- Secretary of
the Army. The instrument of authori-
zation is designated a permit. The au-
thority of the Secretary of the Army
to prevent obstructions to navigation
in navigable waters of the United
States was extended to artificial is-
lands, installations, and other devices
located on the seabed, to the seaward
limit of the outer continental shelf, by
section 4(f) of the Outer Continental
Shelf Lands Act of 1953 as amended
(43 U.S.C. 1333(e)>. (See 33 CFR Part
322.)
(c) Section 11 of the Rivers and Har-
bors Act approved March 3. 1899. (33
U.S.C. 404). authorizes the Secretary
of the Army to establish harbor line6
channelward of which no piers,
wharves, bulkheads, or other works
may be extended or deposits made
without approval of the Secretary of
the Army. Effective May 27.1970, per-
mits for work shoreward of those lines
must be obtained in accordance with
section 10 and. If applicable, section
404 of the Clean Water Act (see
f 320.4(0) of this Part).
(d) Section 13 of the Rivers and Har-
bors Act approved March 3. 1899. (33
U.S.C. 407), provides that the Secre-
tary of the Army, whenever the Chief
of Engineers determines that anchor-
age and navigation will not be injured
thereby, may permit the discharge of
refuse into navigable waters. In the
absence of a permit, such discharge of
refuse is prohibited. While the prohi-
bition of this section, known as the
Refuse Act. is still in effect, the permit
authority of the Secretary of the
Army has been superseded by the
permit authority provided the Admin-
istrator. Environmental Protection
Agency (EPA), and the states under
sections 402 and 405 of the Clean
Water Act. (33 U.S.C. 1342 and 1345).
(See 40 CFR Parts 124 and 125.)
Section 404 of the Clean Water
Act (33 U.S.C. 1344) (hereinafter re-
ferred to as section 404) authorizes the
Secretary of the Army, acting through
the Chief of Engineers, to issue per-
mits, after notice and opportunity for
public hearing, for the discharge of
dredged or fill material into the waters
of the United States jit specified dis-
posal sites. (See 33 CFR Part 323.) The
selection and use of disposal sites will
be in accordance with guidelines devel-
oped by the Administrator of EPA in
conjunction with the Secretary of the
Army and published in 40 CFR Part
230. If these guidelines prohibit the se-
lection or use of a disposal site, the
Chief of Engineers shall consider the
economic impact on navigation and
anchorage of such a prohibition in
reaching his decision. Furthermore.
the Administrator can deny, prohibit.
restrict or withdraw the use of any de-
fined area as a disposal site whenever
he determines, after notice and oppor-
tunity for public hearing /and after
consultation with the Secretary of the
Army, that the discharge of such ma-
terials into such areas will have an un-
acceptable adverse effect on municipal
water supplies, shellfish beds and fish-
ery areas, wildlife, or recreational
areas. (See 40 CFR Part 230).
(g) Section 103 of the Marine Protec-
tion, Research and Sanctuaries Act of
1972. as amended (33 U.S.C. 1413)
(hereinafter referred to as section
103). authorizes the Secretary of the
Army, acting through the Chief of En-
gineers, to issue permits, after notice
C-3
-------
Appendix C
Dredged Material Permit/Project Review Manual
§320.3
and opportunity for public hearing.
for the transportation of dredged ma-
terial for the purpose of disposal in
the ocean where it is determined that
the disposal will not unreasonably de-
grade or endanger human health, wel-
fare, or amenities, or the marine envi-
ronment, ecological systems, or eco-
nomic potentialities. The selection of
disposal sites will be in accordance
with criteria developed by the Admin-
istrator of the EPA in consultation
with the Secretary of the Army and
published in 40 CFR Parts 220
through 229. However, similar to the
EPA Administrator's letting author-
ity cited in paragraph (f) of this sec-
tion, the Administrator can prevent
the issuance of a permit under this au-
thority if he finds that the disposal of
the material will result in an unaccept-
able adverse- Impact on municipal
water supplies, shellfish beds, wildlife.
fisheries, or recreational areas. (See 33
CFR Part 324).
1320.3 Related laws. .
(a) Section 401 of the Clean Water
Act (33 UJ3.C. 1341) requires any ap-
plicant for a federal license or permit
to conduct any activity that may
result in a discharge of a pollutant
into waters of the United States to
obtain a certification from the State in
which the discharge originates or
would originate, or. if appropriate.
from the interstate water pollution
control agency having jurisdiction
over the affected waters at the point
where the discharge originates or
would originate, that the discharge
will comply with the applicable efflu-
ent limitations and water quality
standards. A certification obtained for
the construction of any facility must
also pertain to the subsequent oper-
ation of the facility.
(b) Section 307(c) of the Coastal
Zone Management Act of 1972. as
amended (16 U.S.C. 1456. requires
federal agencies conducting activities.
including development projects, direct-
ly affecting a state's coastal zone, to
comply to the maximum extent practi-
cable with an approved state coastal
zone management program. Indian
tribes doing work on federal lands will
be treated as a federal agency for the
purpose of the Coastal Zone Manage-
33 CFR Ch. II (7-L91 Edition)
aaent Act. The Act also requires any
non-federal applicant .for a federal li-
cense or permit to conduct an activity
affecting land or water uses in the
state's coastal zone to furnish a certifi-
cation that the proposed activity will
comply with the state's coastal zone
management program. Generally, no
permit will be issued until the state
has concurred with the non-federal ap-
plicant's certification. This provision
becomes effective upon approval by
the Secretary of Commerce of the
state's coastal zone management pro-
gram. (See 15 CFR Part 930.)
(c) Section 302 of the Marine Protec-
tion, Research and Sanctuaries Act of
1972. as amended (16 TLS.C. 1432), au-
thorizes the Secretary of Commerce.
after consultation with other interest-
ed federal agencies and with the ap-
proval of the President, to designate
as marine sanctuaries those areas of
the ocean waters, of the Great Lakes
and their connecting waters, or of
other coastal waters which he deter-
mines necessary for the purpose of
preserving or restoring such areas for
their conservation, recreational, eco-
logical, or aesthetic values. After des-
ignating such an area, the Secretary of
Commerce shall issue regulations to
control any activities within the area.
Activities in the sanctuary authorized
under other authorities are valid only
if the Secretary of Commerce certifies
that the activities are consistent with
the purposes of Title HI of the Act
and can be carried out within the reg-
ulations for the sanctuary.
(d) The National Environmental
Policy Act Of 1969 (42 U.S.C. 4321-
4347) declares the national policy to
encourage a productive and enjoyable
harmony between man and his envi-
ronment. Section 102 of that Act di-
rects that "to the fullest extent possi-
ble: (1) The policies, regulations, and
public laws of the United States shall
be interpreted and administered in ac-
cordance with the policies set forth in
this Act. and
(2) All agencies of the Federal Gov-
ernment shall • • * insure that pres-
ently unquantified environmental
amenities and values may be given ap-
propriate consideration in decision-
making along with economic and tech-
C-4
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of ingifiMrs, D.pl. of the Army, DoD
§320.3
nical considerations • • •". (See Appen-
dix B of 33 CFR Part 325.)
„!£ The Rsh and Wildlife Act of
1956 (16 U.S.C. 742a, et tec.), the Mi-
gratory Marine Game-Fish Act (16
U.S.C. 760c-760g). the Pish and.Wild-
life Coordination Act (16 U.S.C. 661-
666c) and other acts express the will
of Congress to protect the quality of
the aquatic environment as it affects
the conservation, improvement and
enjoyment of fish and wildlife re-
sources. Reorganization Plan No. 4 of
1970 transferred certain functions, in-
cluding certain fish and wildlife-water
resources coordinatfin responsibilities
from the Secretary of the interior to
the Secretary of Commerce. Under the
Fish and Wildlife Coordination Act
and Reorganization Plan No. 4. any
federal agency that proposes to eon-
tool or modify any body of water must
first consult with the United States
Fish and Wildlife Service or the Na-
tional Marine Fisheries Service, as ap-
propriate, and with the head of the
appropriate state agency exercising
administration over the wildlife re-
sources of the affected state.
^JS16, pederal *ww Act of 1920
(16 UJB.C. 791a et *ec.), as amended.
authorizes the Federal Energy Regula-
tory Agency (FERC) to issue licenses
for the construction .and the operation
and maintenance of dams, water con-
duits, reservoirs, power houses, trans-
mission lines, and other physical struc-
tures of a hydro-power project. How-
ever, where such structures will affect
the navigable capacity of any naviga-
ble water of the United States (as de-
fined in 16 U.S.C. 796). the plans for
the dam or other physical structures
affecting navigation must be approved
by the Chief of Engineers and the Sec-
retary of the Army. In such cases, the
interests of navigation should normal-
ly be protected by a DA recommenda-
tion to FERC for the inclusion of ap-
propriate provisions in the FERC li-
cense rather than the issuance of a
separate DA permit under 33 U.S.C.
401 et seq. As to any other activities in
navigable waters not constituting con-
struction and the operation and main-
tenance of physical structures licensed
by FERC under the Federal Power Act
of 1920. as amended, the provisions of
33 U.S.C. 401 et seg. remain fully appli-
cable. In all cases involving the dis-
charge of dredged or fill material into
waters of the United States or the
transportation of dredged material for
the purpose of disposal in ocean
waters, section 404 or section 103 will
be applicable.
(g) The National Historic Preserva-
tion Act of 1966 (16 U.S.C. 470) cre-
ated the Advisory Council on Historic
Preservation to advise the President
and Congress on matters involving his-
toric preservation. In performing its
function the Council is authorized to
review and comment upon activities li-
censed by the Federal Government
which will have an effect upon proper-
ties listed in the National Register of
Historic Places, or eligible for such
listing. The concern of Congress for
the preservation of significant histori-
cal sites is also expressed in the Pres-
ervation of Historical and Archeologi-
cal Data Act of 1974 (16 U.S.C. 469 et
*eq.), which amends the Act of June
27. 1960. By this Act. whenever a fed-
eral construction project or federally
licensed project, activity, or program
alters any terrain such that significant
historical or archeological data is
threatened, the Secretary of the Inte-
rior may take action necessary to re-
cover and preserve the data prior to
the commencement of the project.
(h) The Interstate Land Sales Full
Disclosure Act (15 U.S.C. 1701 et teg.)
prohibits any developer or agent from
selling or leasing any lot in a subdivi-
sion (as defined in 15 U.S.C. 1701(3))
unless the purchaser is furnished in
advance a printed property report con-
taining information which the Secre-
tary of Housing and Urban Develop-
ment may, by rules or regulations, re-
quire for the protection of purchasers.
In the event the lot in question is part
of a project that requires DA authori-
zation, the property report Is required
by Housing and Urban Development
regulation to state whether or not a
permit for the development has been
applied for. issued, or denied by the '
Corps of Engineers under section 10 or
section 404. The property report is
also required to state whether or not
any enforcement action has been
taken as a consequence of non-applica-
tion for or denial of such permit.
C-5
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Appendix C
Dredged Material Permit/Project Review Manual
§320.3
(i) The Endangered Species Act (16
UJS.C. 1531 et seq.) declares the inten-
tion of the Congress to conserve
threatened and endangered species
and the ecosystems on which those
species depend. The Act requires that
federal agencies, in consultation with
the UJ5. Fish and Wildlife Service and
the National Marine Fisheries Service.
use their authorities in furtherance of
its purposes by carrying out programs
for the conservation of endangered or
threatened species, and by taking such
action necessary to insure that any
action authorized, funded, or carried
out by the Agency is rr 'tkely to Jeop-
ardize the continued existence of such
endangered or threatened species or
result in the destruction or adverse
modification of habitat of such species
which is determined by the Secretary
of the Interior or Commerce, as appro-
priate, to be critical (See 50 CFR Part
17 and 50 CFR Part 402.)
(J) The Deepwater Port Act of 1974
(33 UJ5.C. 1501 et seq.) prohibits the
ownership, construction, or operation
of a deepwater port beyond the terri-
torial seas without a license issued by
the Secretary of Transportation. The
Secretary of Transportation may issue
such a license to an applicant if he de-
termines, among other things, that
the construction and operation of the
deepwater port is in the national inter-
est and consistent with national secu-
rity and other national policy goals
and objectives. An application for a
deepwater port license constitutes an
application for all federal authoriza-
tions required for the ownership, con-
struction, and operation of a deepwa-
ter port, including applications for sec-
tion 10. section 404 and section 103
permits which may also be required
pursuant to the authorities listed in
i 320.2 and the policies specified in
i 320.4 of this Part.
(k) The Marine Mammal Protection
Act of 1972 (16 UJ5.C. 1361 et seq.) ex-
presses the intent of Congress that
marine mammals be protected and en-
couraged to develop in order to main-
tain the health and stability of the
marine ecosystem. The Act imposes a
perpetual moratorium on the harass-
ment, hunting, capturing, or killing of
marine mammals and on the importa-
tion of marine mammals and marine
33 CFR Ch. H (7.1.91 Edition)
products without a permit
from either the Secretary of the Inte-
rior or the Secretary of Commerce, de-
pending upon the species of marine
involved. Such permits may
.
be issued only for purposes of scientif-
ic research and for public display if
the purpose is consistent with the poli-
cies of the Act. The appropriate Secre-
tary is also empowered in certain re-
stricted circumstances to waive the re-
quirements of the Act.
(1) Section 7(a) of the Wild and
Scenic Rivers Act (16 U.S.C. 1278 et
seq.) provides that no department or
agency of the United States shall
assist by loan, grant, license, or other-
wise in the construction of any water
resources project that would have a
direct and adverse effect on the values
for which such river was established,
as determined by 'the Secretary
charged with Its administration.
(m) The Ocean Thermal Energy
Conversion Act of 1980. (42 UJ3.C. sec-
tion 9101 et seq.} establishes a licens-
ing regime administered by the Ad-
ministrator of NOAA for the owner-
ship. construction, location, and oper-
ation of ocean thermal energy conver-
sion (OTEC) facilities and plantships.
An application for an OTEC license
filed with the Administrator consti-
tutes an application for all federal au-
thorizations required for ownership.
construction, location, and operation
of an OTEC faculty or plantship..
except for certain activities within the
jurisdiction of the Coast Guard. This
includes applications for section 10.
section 404. section 103 and other DA
authorizations which may be required.
(n) Section 402 of the Clean Water
Act authorizes EPA to issue permits
under procedures established to imple-
ment the National Pollutant Dis-
charge Elimination System (NPDES)
program. The administration of this
program can be, and in most cases has
been, delegated to individual states.
Section 402(b)(6) states that no
NPDES permit will be issued if the
Chief of Engineers, acting for the Sec-
retary of the Army and after consult-
ing with the UJS. Coast Guard, deter-
mines that navigation and anchorage
in any navigable water will be substan-
tially impaired as a result of a pro-
posed activity.
C-6
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engin..rt, D.pt. of the Army, DoD
§ 320.4
establishes the Uabily ofthe
tee and the United States i
§820.4 General policies for evaluating
permit application*. ^
Parts 321 through
• .
UB
£Sii25SSl2fM8^?tence ^d "y other
ffSSS*1* 9H2?1111"8 and ^teria
-------
Appendix C
Dredged Material Permit/Project Review Manual
§320.4
(2) Wetlands considered to perform
functions important to the public in-
terest include:
(i) Wetlands which serve significant
natural biological functions, including
food chain production, general habitat
and nesting, spawning, rearing and
resting sites for aquatic or land spe-
cies;
(ii) Wetlands set aside for study of
the aquatic environment or as sanctu-
aries or refuges:
(iii) Wetlands the destruction or al-
teration of which would affect detri-
mentally natural drainage characteris-
tics, sedimentation •xtterns. salinity
distribution, flushing characteristics,
current patterns, or other environmen-
tal characteristics;
(iv) Wetlands which are significant
in shielding other areas from wave
action, erosion, or storm damage. Such
wetlands are often associated with bar-
rier beaches, islands, reefs and bars;
(v) Wetlands which serve as valuable
storage areas for storm and flood
waters;
(vi) Wetlands which are ground
water discharge areas that maintain
minimum baseflows important to
aquatic resources and those which are
prime natural recharge areas;
(vii) Wetlands which serve signifi-
cant water purification functions; ana
(viii) Wetlands which are unique in
nature or scarce in quantity to the
region or local area.
(3) Although a particular alteration
of a wetland may constitute a minor
change, the cumulative effect of nu-
merous piecemeal changes can result
in a major impairment of wetland re-
sources. Thus, the particular wetland
site for which an application is made
will be evaluated with the recognition
that it may be part of a complete and
interrelated wetland area. In addition,
the district engineer may undertake.
where appropriate, reviews of particu-
lar wetland areas in consultation with
the Regional Director of the U. S. Fish
and Wildlife Service, the Regional Di-
rector of the National Marine Fisher-
ies Service of the National Oceanic
and Atmospheric Administration, the
Regional Administrator of the Envi-
ronmental Protection Agency, the
local representative of the Soil Conser-
vation Service of the Department of
33 CFR Ch, II (7.1-91 Edition)
Agriculture, and the head of the ap-
propriate state agency to assess the
cumulative effect of activities in such
areas.
(4) No permit will be granted which
involves the alteration of wetlands
identified as Important by paragraph
(b)(2) of this section or because of pro-
visions of paragraph (b)(3). of this sec-
tion unless the district engineer con-
cludes, on the basis of the analysis're-
quired in paragraph (a) of this section,
that the benefits of the proposed al-
teration outweigh the damage to the
wetlands resource. In evaluating
whether a particular discharge activity
should be permitted, the district engi-
neer shall apply the section 404(b)Q>
guidelines (40 CFR Part 230.10(a) (1).
(2). (3».
(5) In addition to the policies ex-
pressed in this subpart, the Congres-
sional policy expressed in the Estuary
Protection Act. Pub. L. 90-454. and
state regulatory laws or programs for
classification and protection of wet-
lands will be considered.
(c) Fish and wildlife. In accordance
with the Fish and Wildlife Coordina-
tion Act (paragraph 320.3(e) of this
section) district engineers wffl consult
with the Regional Director. U.S. Fish
and Wildlife Service, the Regional Di-
rector. National Marine Fisheries
Service, and the head of the agency re-
sponsible for fish and wildlife for the
state in which work is to be per-
formed, with a view to the conserva-
tion of wildlife resources by preven-
tion of their direct and indirect loss
and damage due to the activity pro-
posed in a permit application. The
Army will give full consideration to
the views of those agencies on fish and
wildlife matters in deciding on the is-
suance, denial, or conditioning of indi-
vidual or general permits.
(d) Water quality. Applications for
permits for activities which may ad-
versely affect the quality of waters of
the United States will be evaluated for
compliance with applicable effluent
limitations and water quality stand-
ards, during the construction and sub-
sequent operation of the proposed ac-
tivity. The evaluation should include
the consideration of both point and
non-point sources of pollution. It
should be noted, however, that the
C-8
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of th* Army, DoD § 320 4
Clean Water Act assigns responsibility (1966)). Applications for
C-9
-------
Appendix C
Dredged Material Permit/Project Review Manual
§320.4
(3) A riparian landowner's general
right of access to navigable waters of
the United States is subject to the
similar rights of access held by nearby
riparian landowners and to the gener-
al public's right of navigation on the
water surface. In the case of proposals
which create undue interference with
access to. or use of, navigable waters.
the authorization will generally be
denied.
(4) Where it is found that the work
for which a permit is desired is in navi-
gable waters of the United States (see
33 CFB Part 320) and may interfere
with an authorized federal project, the
applicant should be apprised in writ-
ing of the fact and of the possibility
that a federal project which may be
constructed in the vicinity of the pro-
posed work might necessitate its re-
moval or reconstruction. The appli-
cant should also be informed that the
United States will in no case be liable
for any damage or injury to the struc-
tures or work authorized by Sections 9
or 10 of the Rivers and Harbors Act of
1899 or by section 404 of the Clean
Water Act which may be caused by. or
result from, future operations under-
taken by the Government for the con-
servation or improvement of naviga-
tion or for other purposes, and no
claims or right to compensation will
accrue from any such damage.
(5) Proposed activities in the area of
a federal project which exists or is
under construction will be evaluated
to insure that they are compatible
with the purposes of the project.
(6) A DA permit does not convey any
property rights, either in real estate or
material, or any exclusive privileges..
Furthermore, a DA permit does not
authorize any injury to property or in-
vasion of rights or any infringement of
Federal, state or local laws or regula-
tions. The applicant's signature on an
application is an affirmation that the
applicant possesses or will possess the
requisite property interest to under-
take the activity proposed in the appli-
cation. The district engineer will not
enter into disputes but will remind the
applicant of the above. The dispute
over property ownership will not be a
factor in the Corps public interest de-
cision.
33 CFR Ch. II (7-1-91 Edition)
(h) Activities affecting coastal zones.
Applications for DA permits for activi-
ties affecting the coastal zones of
those states' having a coastal zone
management program approved by the
Secretary of Commerce will be evalu-
ated with respect to compliance with
that program. No permit will be issued
to a non-federal applicant until certifi-
cation has been provided that the pro-
posed activity complies with the coast-
al zone management program and the
appropriate state agency has con-
curred with the certification or has
waived its right to do so. However, a
permit may be issued to a non-federal
applicant If the Secretary of Com-
merce, on his own initiative or upon
appeal by the applicant, finds that the
proposed activity is consistent with
the objectives of the Coastal Zone
Management Act of 1972 or is other-
wise necessary in the interest of na-
tional security. Federal agency and
Indian tribe applicants for DA permits
are responsible for complying with the
Coastal Zone Management Act's direc-
tives for assuring that their activities
directly affecting the coastal zone are
consistent, to the maximum extent
practicable, with approved state coast-
al zone management programs.
(i) Activities in marine sanctuaries.
Applications for DA authorization for
activities in a marine sanctuary estab-
lished by the Secretary of Commerce
under authority of section 302 of the
Marine Protection. Research and
Sanctuaries Act of 1972. as amended.
will be evaluated for impact on the
marine sanctuary. No permit will be
issued until the applicant provides a
certification from the Secretary of
Commerce that the proposed activity
is consistent with the purposes of Title
III of the Marine Protection, Research
and Sanctuaries Act of 1972, as
amended, and can be carried out
within the regulations promulgated by
the Secretary of Commerce to control
activities within the marine sanctuary.
(j) Other Federal, state, or local re-
quirements. (1) Processing of an appli-
cation for a DA permit normally will
proceed concurrently with the process-
ing of other required Federal, state,
and/or local authorizations or certifi-
cations. Final action on the DA permit
will normally not be delayed pending
C-10
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Appendix C
Dredged Material Permit/Project Review Manual
Corps ©f Engineers, D«pt. of the Army, DoD
§320.4
action by another Federal, state or
local agency (See 33 CFR 325.2 (d)(4».
However, where the required Federal,
state and/or local authorization and/
or certification has been denied for ac-
tivities which also require a Depart-
ment of the Army permit before final
action "has been taken on the Army
permit application, the district engi-
neer will, after considering the likeli-
hood of subsequent approval of the
other authorization and/or certifica-
tion and the time and effort remaining
to complete processing the Army
permit application, either immediately
deny the Army permit without preju-
dice or continue processing the appli-
cation to a conclusion. If the district
engineer continues processing the ap-
plication, he will conclude by either
denying the permit as contrary to the
public Interest, or denying it without
prejudice indicating that except for
the other Federal, state or local denial
the Army permit could, under appro-
priate conditions, be issued. Denial
without prejudice means that there is
no prejudice to the right of the appli-
cant to reinstate processing of the
Army permit application if subsequent
approval is received from the appro-
priate Federal, state and/or local
agency on a previously denied authori-
zation and/or certification. Even if of-
ficial certification and/or authoriza-
tion is not required by state or federal
law, but a state, regional, or local
agency having jurisdiction or interest
over the particular activity comments
on the application, due consideration
shall be given to those official views as
a reflection of local factors of the
public interest.
(2) The primary responsibility for
determining zoning and land use mat-
ters rests with state, local and tribal
governments. The district engineer
will normally accept decisions by such
governments on those matters unless
there are significant issues of overrid-
ing national Importance. Such issues
would include but are not necessarily
limited to national security, naviga-
tion, national economic development.
water quality, preservation of special
aquatic areas, including wetlands, with
significant interstate importance, and
national energy needs. Whether a
factor has overriding importance wfll '
C-ll
depend on the degree of impact in an
individual case.
(3) A proposed activity may result in
conflicting comments from several
agencies within the same state. Where
a state has not designated a single re-
sponsible coordinating agency, district
engineers will ask the Governor to ex-
press his views or to designate one
state agency to represent the official
state position in the particular case.
(4) In the absence of-overriding na-
tional factors of the public interest
that may be revealed during the eval-
uation of the permit application, a
permit will generally be issued follow-
ing receipt of a favorable state d~ic
mination provided the concerns, poli-
cies, goals, and requirements as ex-
pressed in 33 CFR Parts 320-324, and
the applicable statutes have been con-
sidered and followed: e.g., the National
Environmental Policy Act: the Fish
and Wildlife Coordination Act; the
Historical and Archeological Preserva-
tion Act; the National Historic Preser-
vation Act; the Endangered Species
Act; the Coastal Zone Management
Act; the Marine Protection. Research
and Sanctuaries Act of 1972, as
amended; the Clean Water Act, the
Archeological Resources Act, and the
American Indian Religious Freedom
Act. Similarly, a permit will generally
be issued for Federal and Federally-
authorized activities; another federal
agency's determination 'to proceed is
entitled to substantial consideration in
the Corps' public interest review.
(5) Where general permits to avoid
duplication are not practical, district
engineers shall develop joint proce-
dures with those local, state, and other
Federal agencies having ongoing
permit programs for activities also reg-
ulated by the Department of the
Army. In such cases, applications for
DA permits may be processed jointly
with the state or other federal applica-
tions to an independent conclusion
and decision by the district engineer
and the appropriate Federal or state
agency. (See 33 CFR 325.2(e>.)
(6) The district engineer shall devel-
op operating procedures for establish-
ing official communications with
Indian Tribes within the district. The
procedures shall provide for appoint-
ment of a tribal representative who
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Appendix C
Dredged Material Permit/Project Review Manual
§320.4
will receive all pertinent public no-
tices, and respond to such notices with
the official tribal position on the pro-
posed activity. This procedure shall
apply only to those tribes which
accept this option. Any adopted oper-
ating procedures shall be distributed
by public notice to inform the tribes of
this option.
(k) Safety of impoundment struc-
ture*. To insure that all impoundment
structures are designed for safety.
non-Federal applicants may be re-
quired to demonstrate that the struc-
tures comply with established state
dam safety criteria or have been de-
signed by qualified persons and. in ap-
propriate cases, that the design has
been independently reviewed (and
modified as the review would indicate)
by similarly qualified persons.
(1) -Floodplain management. (1)
Floodplains possess significant natural
values and carry out numerous func-
tions important to the public Interest.
These include:
(i) Water resources values (natural
moderation of floods, water quality
maintenance, and groundwater re-
charge);
(ii> Living resource values (fish, wild-
life, and plant resources):
(iii) Cultural resource values (open
space, natural beauty, scientific study,
outdoor education, and recreation):
and
(iv) Cultivated resource values (agri-
culture, aquaculture, and forestry).
(2) Although a particular alteration
to a floodplain may constitute a minor
change, the cumulative impact of such
changes may result in a significant
degradation of floodplain values and
functions and in increased potential
for harm to upstream and downstream
activities. In accordance with the re-
quirements of Executive Order 11988.
district engineers, as part of their
public interest review, should avoid to
the extent practicable, long and short
term significant adverse impacts asso-
ciated with the occupancy and modifi-
cation of floodplains, as well as the
direct and indirect support of flood-
plain development whenever there is a
practicable alternative. For those ac-
tivities which in the public interest
must occur in or impact upon flood-
plains, the district engineer shall
33 CFR Ch. IS (7-1-91 Edition)
ensure, to the maximum extent practi-
cable, that the impacts of potential
flooding on human health, safety, and
welfare are minimized, the risks of
flood losses are minimized, and, when-
ever practicable the natural and bene-
ficial values served by floodplains are
restored and preserved.
(3) In accordance with Executive
Order 11988, the district engineer
should avoid authorizing floodplain
developments whenever practicable al-
ternatives exist outside the floodplain.
If there are no such practicable alter-
natives, the district engineer shall con-
sider, as a means of mitigation, alter-
natives within the floodplain which
will lessen any significant advene
impact to the floodplain.
(m) Water supply and conservation.
Water is an essential resource, basic to
human survival, economic growth, and
the natural environment. Water con-
servation requires the efficient use of
water resources in all actions which in-
volve the significant use of water or
that significantly affect the availabil-
ity of water for alternative uses in-
cluding opportunities to reduce
demand and improve efficiency in
order to minimize new supply require-
ments. Actions affecting water quanti-
ties are subject to Congressional policy
as stated in section lOHg) of the Clean
Water Act which provides that the au-
thority of states to allocate water
quantities shall not be superseded, ab-
rogated, or otherwise impaired.
(n) Energy conservation and devel-
opment. Energy conservation and de-
velopment are major national objec-
tives. District engineers will give high
priority to the processing of permit ac-
tions involving energy projects.
(o) Navigation. (1) Section 11 of the
Rivers and Harbors Act of 1899 au-
thorized establishment of harbor lines
shoreward of which no individual per-
mits were required. Because harbor
lines were established on the basis of
navigation impacts only, the Corps of
Engineers published a regulation on 27
May 1970 (33 CFR 209.150) which de-
clared that permits would thereafter
be required for activities shoreward of
the harbor lines. Review of applica-
tions would be based on a full public
interest evaluation and harbor lines
would serve as guidance for assessing
C-12
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of th« Army, DoD
navigation impacts. Accordingly, ac-
tivities constructed shoreward of
harbor lines prior to 27 May 1970 do
not require specific authorization.
(2) The policy of considering harbor
lines as guidance for ft*»«>gg
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Appendix C
Dredged Material Permit/Project Review Manual
Port 321
(Subpart H of the 404(b)(l) Guide-
lines).
(ill) Mitigation measures in addition
to those under paragraphs (r)(l) (i)
and (ii) of this section may be required
as a result of the public interest review
process. (See 33 CFR 32S.4(a).) Mitiga-
tion should be developed and incorpo-
rated within the public interest review
process to the extent that the mitiga-
tion is found by the district engineer
to be reasonable and justified. Only
those measures required to ensure
that the project is not contrary to the
public interest may be required under
this subparagraph.
(2) All compensatory mitigation will
be for significant resource losses
which are specifically identifiable, rea-
sonably likely to occur, and of impor-
tance to the human or aquatic envi-
ronment. Also, all mitigation wfll be
directly related to the impacts of the
proposal, appropriate to the scope and
degree of those impacts, and reason-
ably enforceable. District engineers
will require all forms of mitigation, in-
cluding compensatory mitigation, only
as provided in paragraphs (rKl) (I)
through (ill) of this section. Additional
mitigation may be added at the appli-
cants' request.
PART 321—PERMITS FOR DAMS AND
DIKES IN NAVIGABLE WATERS OF
THE UNITED STATES
Sec.
321.1 OenenL
321.2 Definitions.
321.3 Special policies and procedures.
AUTHORITY: 33 UJ5.C. 401.
SOURCE 51 PR 41227. Nov. 13.1986. unless
otherwise noted.
S 321.1 General.
This regulation prescribes, in addi-
tion to the general policies of 33 CFR
Part 320 and procedures of 33 CFR
Part 325, those special policies, prac-
tices, and procedures to be followed by
the Corps of Engineers in connection
with the review of applications for De-
partment of the Army (DA) permits to
authorize the construction of a dike or
dam in a navigable water of the
United States pursuant to section 9 of
C-14
33 CFR Ch. II (7.1-91 Edition)
the Rivers and Harbors Act of 1899 (33
U.S.C. 401). See 33 CFR 320.2(a).
Dams and dikes in navigable waters of
the United States also require DA per-
mits under section 404 of the Clean
Water Act. as amended (33 UJS.C.
1344). Applicants for DA permits
under this Part should also refer to 33
CFR Part 323 to satisfy the require-
ments of section 404.
8321.2 Definitions.
For the purpose of this regulation.
the following terms are defined:
(a) The term "navigable waters of
the United States" means those waters
of the United States that are subject
to the ebb and flow of the tide shore-
ward to the mean high water mark
and/or are presently used, or have
been used in the past, or may be sus-
ceptible to use to transport interstate
or foreign commerce. See 33 CFR Part
329 for a more complete definition of
this term.
. (b) The term "dike or dam" means.
for the purposes of section 9. any im-
poundment structure that completely
spans a navigable water of the United
States and that may obstruct inter-
state waterborne commerce. The term
does not include a weir. Weirs are reg-
ulated pursuant to section 10 of the
Rivers and Harbors Act of 1899. (See
33 CFR Part 322.)
8 321.3 Special policies end procedures.
The following additional special poli-
cies and procedures shall be applicable
to the evaluation of permit applica-
tions under this regulation:
(a) The Assistant Secretary of the
Army (Civil Works) will decide wheth-
er DA authorization for a dam or dike
in an interstate navigable water of the
United States will be Issued, since this
authority has not been delegated to
the Chief of Engineers. The conditions
to be imposed in any instrument of au-
thorization will be recommended by
the district engineer when forwarding
the report to the Assistant Secretary
of the Army (Civil Works), through
the Chief of Engineers.
(b) District engineers are authorized
to decide whether DA authorization
for a dam or dike in an intrastate navi-
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Appendix C
Dredged Material Permit/Project Review Manual
Port 324
pursuant to section 404(b>(2), a permit
will be denied if the discharge that
would be authorized by such a permit
would not comply with the 404(b)(l)
guidelines. If the district engineer de-
termines that the proposed discharge
would comply with the 404(b)(l)
guidelines, he will grant the permit
unless issuance would be contrary to
the public interest.
(b) The Corps will not issue a permit
where the regional administrator of
EPA has notified the district engineer
and applicant in writing pursuant to
40 CPR 231.3(a)(i) that he intends to
issue a public notice of a proposed de-
termination to prohibit or withdraw
the specification, or to deny, restrict
or withdraw the use for specification.
of any defined area as a disposal site
in accordance with section 404(c) of
the Clean Water Act. However the
Corps will continue to complete the
administrative processing of the appli-
cation while the section 404(c) proce-
dures are underway including comple-
tion of final coordination with EPA
under 33 CFR Part 325.
PART 324—PERMITS FOR OCEAN
DUMPING OF DREDGED MATERIAL
Sec.
324.1 General.
324.2 Definition*.
324.3 Activities requiring permits.
324.4 Special procedures.
ADTHORITT: 33 U.S.C. 1413.
SOTTXCC 51 FR 41235. Nov. 13.1986. unless
otherwise noted.
6324.1 General. .
This regulation prescribes in addi-
tion to the general policies of 33 CFR
Part 320 and procedures of 33 CFR
Part 325. those special policies, prac-
tices and procedures to be followed by
the Corps of Engineers in connection
with the review of applications for De-
partment of the Army (DA) permits to
authorize the transportation of
dredged material by vessel or other ve-
hicle for the purpose of dumping it in
ocean waters at dumping sites desig-
nated under 40 CFR Part 228 pursu-
ant to section 103 of the Marine Pro-
tection. Research and Sanctuaries Act
C-15
33 CFR Ch. II (7-1-91 Edition)
of 1972. as amended (33 U.S.C. 1413)
(hereinafter referred to as section
103). See 33 CFR 320.2(h). Activities
involving the transportation of
dredged material for the purpose of
dumping in the ocean waters also re-
quire DA permits under Section 10 of
the Rivers and Harbors Act of 1899 (33
TLS.C. 403) for the dredging in naviga-
ble waters of the United States. Appli-
cants for DA permits under this Part
should also refer to 33 CFR Part 322
to satisfy the requirements of Section
10.
8S24.2 Definitions.
For the purpose of this regulation.
the following terms are defined:
(a) The term "ocean waters" means
those waters of the open seas lying
seaward of the base line from which
the territorial sea is measured, as pro-
vided for in the Convention on the
Territorial Sea and the Contiguous
Zone (15 UST 1606: TIAS 5639).
(b) The term "dredged material"
means any material excavated or
dredged from navigable waters of the
United States.
(c) The term "transport" or "trans-
portation" refers to the conveyance
and related handling of dredged mate-
rial by a vessel or other vehicle.
B 324£ Activities requiring permits.
(a) General DA permits are required
for the transportation of dredged ma-
terial for the purpose of dumping it in
ocean waters.
(b) Activities of Federal agencies. (1)
The transportation of dredged materi-
al for the purpose of disposal in ocean
waters done by or on behalf of any
Federal agency other than the activi-
ties of the Corps of Engineers is sub-
ject to the procedures of this regula-
tion. Agreement for construction or
engineering services performed for
other agencies by the Corps of Engi-
neers does not constitute authoriza-
tion under these regulations. Division
and district engineers will therefore
advise Federal agencies accordingly
and cooperate to the fullest extent in
the expeditious processing of their ap-
plications. The activities of the Corps
of Engineers that involve the trans-
portation of dredged material for dis-
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pl. of the Army, OoD
§324.4
posal in ocean waters are regulated by
33 CPB 209.145.
(2) The policy provisions set out in
33 CFR 320.4(j) relating to state or
local authorizations do not apply to
work or structures undertaken by Fed-
eral agencies, except where compli-
ance with non-Federal authorization is
required by Federal law or Executive
policy. Federal agencies are responsi-
ble for confonnance with such laws
and policies. (See EO 12088. October
18. 1978.) Federal agencies are not re-
quired to obtain and provide certifica-
tion of compliance with effluent limi-
tations and water quality standards
from state or interstate water pollu-
tion control agencies in connection
with activities involving the transport
of dredged material for dumping into
ocean waters beyond the territorial
sea.
1324.4 Special procedures.
The Secretary of the Army has dele-
gated to the Chief of Engineers the
authority to issue or deny section 103
permits. The following additional pro-
cedures shall also be applicable under
this regulation.
(a) Public notice. For all applica-
tions for section 103 permits, the dis-
trict engineer will issue a public notice
which shall contain the information
specified in 33 CFR 325.3.
(b) Evaluation. Applications for per-
mits for the transportation of dredged
material for the purpose of dumping it
in ocean waters will be evaluated to
determine whether the proposed
dumping wfll unreasonably degrade or
endanger human health, welfare.
amenities, or the marine environment.
ecological systems or economic poten-
tialities. District engineers will apply
the criteria established by the Admin-
istrator of EPA pursuant to section
102 of the Marine Protection. Re-
search and Sanctuaries Act of 1972 in
making this evaluation. (See 40 CFR
Parts 220-229) Where ocean dumping
is determined to be necessary, the dis-
trict engineer will, to the extent feasi-
ble, specify disposal sites using the rec-
ommendations of the Administrator
pursuant to section 102(c) of the Act.
(c) EPA review. When the Regional
Administrator. EPA. in accordance
with 40 CFR 225.2(b). advises the dis-
trict engineer, in writing, that the pro-
posed dumping will comply with the
criteria, the district engineer will com-
plete his evaluation of the application
under this part and 33 CFR Parts 320
and 325. If. however, the Regional Ad-
ministrator advises the district engi-
neer, in writing, that the proposed
dumping does not comply with the cri-
teria, the district engineer will proceed
as follows:
(1) The district engineer will deter-
mine whether there is an economically
feasible alternative method or site
available other than the proposed
ocean disposal site. If there are other
feasible alternative methods or sites
available, the district engineer will
evaluate them in accordance with 33
CFR Parts 320. 322. 323, and 325 and
this Part, as appropriate. '
(2) If the district engineer deter-
mines that there is no economically
feasible alternative method or site
available, and the proposed project is
otherwise found to be not contrary to
.the public interest, he will so advise
the Regional Administrator setting
forth his reasons for such determina-
tion. If the Regional Administrator
has not removed his objection within
15 days, the district engineer will
submit a report of his determination
to the Chief of Engineers for further
coordination with the Administrator.
EPA, and decision. The report for-
warding the case will contain the anal-
ysis of whether there are other eco-
nomically feasible methods or sites
available to dispose of the dredged ma-
terial.
(d) Chief o/ Engineers review. The
Chief of Engineers shall evaluate the
permit application and make a deci-
sion to deny the permit or recommend
its issuance. If the decision of the
Chief of Engineers is that ocean
dumping at the proposed disposal site
is required because of the unavailabil-
ity of economically feasible alterna-
tives, he shall so certify and request
that the Secretary of the Army seek a
waiver from the Administrator. EPA,
of the criteria or of the critical site
designation in accordance with 40
CFR 225.4.
C-16
-------
Appendix C
Dredged Material Permit/Project Review Manual
§ 325.1
PART 325—PROCESSING OF
DEPARTMENT OF THE ARMY PERMITS
Sec.
325.1 Applications for permits.
325.2 Processing of applications.
325.3 Public notice.
325.4 Conditioning of permits.
325.5 Forms of permits.
325.6 Duration of permits.
325.7 Modification, suspension, or revoca-
tion of permits.
325.8 Authority to issue or deny permits,
325.9 Authority to determine jurisdiction.
325.10 Publicity.
ArnKDix A—Fount Font AHB SHOAL Coir-
DXTIOHS
APFXKDXX B—NEPA 1 M n.nnnfTATioy PROCX-
BUBCS FO* THE REGtJLATO»Y PXOOKAH
AmifDXX C—PnoccDintcs ran TBS PBOTCC-
TIOH or HISTOEIC Pxopotnxs
AOTBOIUTT: 33 U.S.C. 401 et seq.; 33 U.S.C.
1344:33 U.S.C. 1413.
Sotmcc 81 FR 41236, Nov. 13.1986. unless
otherwise noted.
1325.1 Applications for permits.
(a) General. The processing proce-
dures of this Part apply to any De-
partment of the Army (DA) permit.
Special procedures and additional in-
formation are contained in 33 CFR
Parts 320 through 324. 327 and Part
330. This Part is arranged in the basic
timing sequence used by the Corps of
Engineers in processing applications
for DA permits.
(b) Pre-application consultation for
major applications. The district staff
element having responsibility for ad-
ministering, processing, and enforcing
federal laws and regulations relating
to the Corps of Engineers regulatory
program shall be available to advise
potential applicants of studies or other
information foreseeably required for
later federal action. The district engi-
neer win establish local procedures
and policies including appropriate
publicity programs which will allow
potential applicants to contact the dis-
trict engineer or the regulatory staff
element .to request pre-application
consultation. Upon receipt of such re-
quest, the district engineer will assure
the conduct of an orderly process
which may involve other staff ele-
ments and affected agencies (Federal,
state, or local) and the public. This
early process should be brief but thor-
C-17
33 CFR Ch. II (7-1-91 Edition)
ough so that the potential applicant
may begin to assess the viability of
some of the more obvious potential al-
ternatives in the application. The dis-
trict engineer will endeavor, at this
stage, to provide the potential appli-
cant with all helpful information nec-
essary in pursuing the application, in-
cluding factors which the Corps must
consider in its permit decision making
process. Whenever the district engi-
neer becomes aware of planning for
work which may require a DA permit
and which may involve the prepara-
tion of an environmental document,
he shall contact the principals in-
volved to advise them of the require-
ment for the permitts) and the attend-
ant public interest review including
the development of an environmental
document. Whenever a potential appli-
cant indicates the intent to submit an
application for work which may re-
quire the preparation of an environ-
mental document, a single point of
contact shall be designated within the
district's regulatory staff to effectively
coordinate the regulatory process, in-
eluding the National Environmental
Policy Act (NEPA) procedures and all
attendant reviews, meetings, hearings,
and other actions, including the scop-
ing process if appropriate, leading to a
decision by the district engineer.
Effort devoted to this process should
be commensurate with the likelihood
of a permit application actually being
submitted to the Corps. The regula-
tory staff coordinator shall maintain
an open relationship with each poten-
tial applicant or his consultants so as
to assure that the potential applicant
is fully aware of the substance (both
quantitative and qualitative) of the
data required by the district engineer
for use in preparing an environmental
assessment or an environmental
impact statement (EIS) in accordance
with 33 CFR Part 230. Appendix B.
(c) Application form. Applicants for
all individual DA permits must use the
standard application form (ENG Form
4345. OMB Approval No. OMB 49-
R0420). Local variations of the appli-
cation form for purposes of facilitat-
ing coordination with federal, state
and local agencies may be used. The
appropriate form may be obtained
from the district office having jurisdic-
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of tho Army, DoD
§325.1
tion over the waters in which the ac-
tivity is proposed to be located. Cer-
tain activities have been authorized by
general permits and do not require
submission of an application form but
may require a separate notification.
(d). Content of application. (1) The
application must include a complete
description of the proposed activity in-
cluding necessary drawings, sketches.
or plans sufficient for public notice
(detailed engineering plans and speci-
fications are not required); the loca-
tion, purpose and need for the pro-
posed activity; scheduling of the activ-
ity; the names and addresses of adjoin-
ing property owners; the location and
dimensions of accent structures; and
a list of authorizations required by
other federal, interstate, state, or local
agencies for the work, including all ap-
provals received or denials already
made. See § 325.3 for information re-
quired to be in public notices. District
and division engineers are not author-
ized to develop additional information
forms but may request specific infor-
mation on a case-by-case basis. (See
i 325.1(e».
(2) All activities which the applicant
plans to undertake which are reason-
ably related to the same project and
for which a DA permit would be re-
quired should be Included in the same
permit application. District engineers
should reject, as incomplete, any
permit application which fails to
comply with this requirement. For ex-
ample, a permit application for a
marina will include dredging required
for access as well as any fill associated
with construction of the m^na.
(3) If the activity would Involve
dredging in navigable waters of the
United States, the application must in-
clude a description of the type, compo-
sition and quantity of the material to
be dredged, the method of dredging,
and the site and plans for disposal of
the dredged material.
(4) If the activity would include the
discharge of dredged or fill material
into the waters of the United States or
the transportation of dredged material
for the purpose of disposing of it in
ocean waters the application must in-
clude the source of the material; the
purpose of the discharge, a description
of the type, composition and quantity
C-18
of the material; the method of trans-
portation and disposal of the material;
and the location of the disposal site.
Certification under section 401 of the
Clean Water Act is required for such
discharges into waters of the United
States.
(5) If the activity would include the
construction of a filled area or pile or
float-supported platform the project
description must include the use of.
and specific structures to be erected
on. the fill or platform.
(6) If the activity would involve the
construction of an impoundment
structure, the applicant may be re-
quired to demonstrate that the str-?-
ture complies with established state
dam safety criteria or that the struc-
ture has been designed by qualified
persons and. in appropriate cases, in-
dependently reviewed (and modified as
the review would indicate) by similiar-
ly qualified persons. No specific design
criteria are to be prescribed nor is an
independent detailed engineering
review to be made by the district engi-
neer.
(7) Signature on application. The
application must be signed by the
person who desires to undertake the
proposed activity (i.e. the applicant) or
by a duly authorized agent. When the
applicant is represented by an agent.
that information will be included in
the space provided on the application
or by a separate written statement.
The signature of the applicant or the
agent will be an affirmation that the
applicant possesses or will possess the
requisite property interest to under-
take the activity proposed in the appli-
cation, except where the lands are
under the control of the Corps of En-
gineers, in which cases the district en-
gineer will coordinate the transfer of
the real estate and the permit action.
An application may include the activi-
ty of more than one owner provided
the character of the activity of each
owner is similar and In the same gen-
eral area and each owner submits a
statement designating the same agent.
(8) If the activity would involve the
construction or placement of an artifi-
cial reef, as defined in 33 CFR
322.2(g). in the navigable waters of the
United States or in the waters overly-
ing the outer continental shelf, the ap-
-------
Appendix C
Dredged Material Permit/Project Review Manual
§325.2
plication must include provisions for
siting, constructing, monitoring, and
managing the artificial reef.
(9) Complete application. An appli-
cation will be determined to be com-
plete when sufficient information is
received to issue a public notice (See
33 CFR 325.1(d) and 325.3(a).) The is-
suance of a public notice will not be
delayed to obtain information neces-
sary to evaluate an application.
(e) Additional information. In addi-
tion to the information indicated in
paragraph (d) of this section, the ap-
plicant will be required to furnish only
such additional information as the dis-
trict engineer deatu -sential to make
a public interest determination includ-
ing, where applicable, a determination
of compliance with the section
404(b)(l) guidelines or ocean dumping
criteria. Such additional information
may include environmental data and
information on alternate methods and
sites as may be necessary for the prep-
aration of the required environmental
documentation.
(f) Fees. Fees are required for per-
mits under section 404 of the Clean
Water Act. section 103 of the Marine
Protection. Research and Sanctuaries
Act of 1972. as amended, and sections
9 and 10 of the Rivers and Harbors
Act of 1899. A fee of $100.00 will be
charged when the planned or ultimate
purpose of the project is commercial
or industrial in nature and is in sup-
port of operations that charge for the
production, distribution or sale of
goods or services. A $10.00 fee will be
charged for permit applications when
the proposed work is non-commercial
in nature and would provide personal
benefits that have no connection with
a commercial enterprise. The final de-
cision as to the basis for a fee (com-
mercial vs. non-commercial) shall be
solely the responsibility of the district
engineer. No fee will be charged if the
applicant withdraws the application at
any time prior to issuance of the
permit or if the permit is denied. Col-
lection of the fee will be deferred until
the proposed activity has been deter-
mined to be not contrary to the public
interest. Multiple fees are not to be
charged if more than one law is appli-
cable. Any modification significant
enough to require publication of a
C-19
33 CFR Ch. II (7.1-91 Edition)
public notice will also require a fee. No
fee will be assessed when a permit is
transferred from one property owner
to another. No fees will be charged for
time extensions, general permits or
letters of permission. Agencies or in-
strumentalities of federal, state or
local governments will not be required
to pay any fee in connection with per-
mits.
S S2&2 Processing of applications.
(a) Standard procedures. (1) When
an application for a permit is received
the district engineer shall immediately
assign it a number for identification.
acknowledge receipt thereof, and
advise the applicant of the number as-
signed to it. He shall review the appli-
cation for completeness, and if the ap-
plication is incomplete, request from
the applicant within 15 days of receipt
of the application any additional in-
formation necessary for further proc-
essing.
(2) Within 15 days of receipt of an
application the district engineer will
either determine that the application
is complete (see 33 CFR 325.1(dX9)
and issue a public notice as described
in i 325.3 of this Part, unless specifi-
cally exempted by other provisions of
this regulation or that it is incomplete
and notify the applicant of the infor-
mation necessary for a complete appli-
cation. The district engineer will issue
a supplemental, revised, or corrected
public notice if in his view there is a
change in the application data that
would affect the public's review of the
proposal.
(3) The district engineer will consid-
er all comments received in response
to the public notice in his subsequent
actions on the permit application. Re-
ceipt of the comments will be acknowl-
edged, if appropriate, and they will be
made a part of the administrative
record of the application. Comments
received as form letters or petitions
may be acknowledged as a group to
the person or organization responsible
for the form letter or petition. If com-
ments relate to matters within the
special expertise of another federal
agency, the district engineer may seek
the advice of that agency. If the dis-
trict engineer determines, based on
-------
Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of tha Army, DeD
§325.2
comments received, that he must have
the views of the applicant on a par-
ticular issue to make a public interest
determination, the applicant will be
given the opportunity to furnish his
views on such issue to the district engi-
neer (see { 325.2(d>(5». At the earliest
practicable time other substantive
comments will be furnished to the ap-
plicant for his information and any
views he may wish to offer. A summa-
ry of the comments, the actual letters
or portions thereof, or representative
comment letters may be furnished to
the applicant. The applicant may vol-
untarily elect to contact objectors in
an attempt to resolve objections but
will not be required to do so. District
engineers will ensure that all parties
are informed that the Corps alone is
responsible for reaching a decision on
the merits of any application. The dis-
trict engineer may also offer Corps
regulatory staff to be present at meet-
ings between applicants and objectors.
where appropriate, to provide informa-
tion on the process, to mediate differ-
ences, or to gather information to aid
in the decision process. The district
engineer should not delay processing
of the application unless the applicant
requests a reasonable delay, normally
not to exceed 30 days, to provide addi-
tional information or comments.
(4) The district engineer will follow
Appendix B of 33 CFR Part 230 for en-
vironmental procedures and documen-
tation required by the National Envi-
ronmental Policy Act of 1969. A deci-
sion on a permit application will re-
quire either an environmental assess-
ment or an environmental impact
statement unless it is Included within
a categorical exclusion.
(5) The district engineer will also
evaluate the application to determine
the need for a public hearing pursuant
to 33 CFR Part 327.
(6) After all above actions have been
completed, the district engineer will
determine in accordance with the
record and applicable regulations
whether or not the permit should be
issued. He shall prepare a statement of
findings (SOF) or, where an EIS has
been prepared, a record of decision
(ROD), on all permit decisions. The
SOF or ROD shall include the district
engineer's views on the probable effect
C-20
of the proposed work on the public in-
terest including conformity with the
guidelines published for the discharge
of dredged or fill material into waters
of the United States (40 CFR Part
230) or with the criteria for dumping
of dredged material in ocean waters
(40 CFR Parts 220 to 229). if applica-
ble, and the conclusions of the district
engineer. The SOF or ROD shall be
dated, signed, and included in the
record prior to final action on the ap-
plication. Where the district engineer
has delegated authority to sign per-
mits for and in his behalf, he may
similarly delegate the signing of the
SOF or ROD. If a district engineer
makes a decision on a permit applica-
tion which is contrary to state or local
decisions (33 CFR 320.4CJ) (2) & (4)).
the district engineer will include in the
decision document the significant na-
tional issues and explain how they are
overriding in importance. If a permit
is warranted, the district engineer will
determine the special conditions, if
any, and duration which should be in-
corporated into the permit. In accord-
ance with the authorities specified in
i 325.8 of this Part, the district engi-
neer will take final action or forward
the application with all pertinent com-
ments, records, and studies, including
the final EIS or environmental assess-
ment, through channels to the official
authorized to make the final decision.
The report forwarding the application
for decision will be in a format pre-
scribed by the Chief of Engineers. Dis-
trict and division engineers will notify
the applicant and interested federal
and state agencies that the application
has been forwarded to higher head-
quarters. The district or division engi-
neer may, at his option, disclose his
recommendation to the news media
and other interested parties, with the
caution that it is only a recommenda-
tion and not a final decision. Such dis-
closure is encouraged in permit cases
which have become controversial and
have been the subject of stories in the
media or have generated strong public
interest. In those cases where the ap-
plication is forwarded for decision in
the format prescribed by the Chief of
Engineers, the report will serve as the
SOF or ROD. District engineers will
generally combine the SOF. environ-
-------
Appendix C
Dredged Material Permit/Project Review Manual
§325.2
mental assessment, and findings of no
significant impact (FONSI), 404(b)(l)
guideline analysis, and/or the criteria
for dumping of dredged material in
ocean waters into a single document.
(7) If the final decision is to deny
the permit, the applicant will be ad-
vised in writing of the reason(s) for
denial. If the final decision is to issue
the permit and a standard individual
permit form will be used, the issuing
official will forward the permit to the
applicant for signature accepting the
conditions of the permit. The permit is
not valid until signed by the issuing
official. Letters of permission require
only the signature of th* issuing offi-
cial. Final action on the permit appli-
cation Is the signature on the letter
notifying the applicant of the denial
of the permit or signature of the issu-
ing official on the authorizing docu-
ment.
(8) The district engineer will publish
monthly a list of permits issued or
denied during the previous month.
The list will identify each action by
public notice number, name of appli-
cant, and brief description of activity
involved. It will also note that relevant
environmental documents and the
SOP'S or ROD'S are available upon
written request and, where applicable.
upon the payment of administrative
fees. This list will be distributed to all
persons who may have an interest in
any of the public notices listed.
(9) Copies of permits will be fur-
nished to other agencies in appropri-
ate cases as follows:
(i) If the activity involves the con-
struction of artificial islands, installa-
tions or other devices on the outer
continental shelf, to the Director. De-
fense Mapping Agency. Hydrographic
Center, Washington. DC 20390 Atten-
tion, Code NS12, and to the Charting
and Geodetic Services. N/CG222, Na-
tional Ocean'Service NOAA. Rockville.
Maryland 20852.
(ii) If the activity involves the con-
struction of structures to enhance fish
propagation (e.g.. fishing reefs) along
the coasts of the United States, to the
Defense Mapping Agency, Hydro-
graphic Center and National Ocean
Service as in paragraph (a)(9Xi) of
this section and to the Director. Office
of Marine Recreational Fisheries. Na-
33 CFR Ch. II (7-1.91 Edition)
tional Marine Fisheries Service. Wash-
ington. DC 20235.
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pl. of th» Army, DoD
§325.2
hearing in the objecting state. Except
as stated below, the hearing will be
conducted in accordance with 33 CFR
Part 327. The issues to be considered
at the public hearing will be limited to
water quality impacts. EPA will
submit its evaluation and recommen-
dations at the hearing with respect to
the state's objection to permit issu-
ance. Based upon the recommenda-
tions of the objecting state. EPA. and
any additional evidence presented at
the hearing, the district engineer will
condition the permit, if issued, in such
a manner as may be necessary to
insure compliance with applicable
water quality requirements. If the im-
position of condition cannot, in the
district engineer's opinion, insure such
compliance, he will deny the permit.
(II) No permit will be granted until
required certification has been ob-
tained or has been waived. A waiver
may be explicit, or will be deemed to
occur if the certifying agency fails or
refuses to act on a request for certifi-
cation within sixty days after receipt
of such a request unless the district
engineer determines a shorter or
longer period is reasonable for the
state to act. In determining whether
or not a waiver period has commenced
or waiver has occurred, the district en-
gineer will verify that the certifying
agency has received a valid request for
certification. If, however, special cir-
cumstances identified by the district
engineer require that action on an ap-
plication be taken within a more limit-
ed period of time, the district engineer
shall determine a reasonable lesser
period of time, advise the certifying
agency of the need for action by a par-
ticular date, and that, if certification
is not received by that date, it will be
. considered that the requirement for
certification has been waived. Similar-
ly. If it appears that circumstances
may reasonably require a period of
time longer than sixty days, the dis-
trict engineer, based on information
provided by the certifying agency, will
determine a longer reasonable period
of time, not to exceed one year, at
which time a waiver will be deemed to
occur.
(2) Coastal Zone Management Con-
sistency. If the proposed activity is to
be undertaken in a state operating
under a coastal zone management pro-
gram approved by the Secretary of
Commerce pursuant to the Coastal
Zone Management (CZM) Act (see 33
CFR 320.3(b)), the district engineer
shall proceed as follows:
(i) If the applicant is a federal
agency, and the application involves a
federal activity in or affecting the
coastal zone, the district engineer
shall forward a copy of the public
notice to the agency of the state re-
sponsible for reviewing the consisten-
cy of federal activities. The federal
agency applicant shall be responsible
for complying with the CZM Act's di-
rective for ensuring that federal
agency activities are undertaken in a
manner which is consistent, to the
maximum extent practicable, with ap-
proved CZM Programs. (See 15 CFR
Part 930.) If the state coastal zone
agency objects to the proposed federal
activity on the basis of its inconsisten-
cy with the state's approved CZM Pro-
gram, the district engineer shall not
make a final decision on the applica-
tion until the disagreeing parties have
had an opportunity to utilize the pro-
cedures specified by the CZM Act for
resolving such disagreements.
(II) If the applicant is not a federal
agency and the application involves an
activity affecting the coastal zone, the
district engineer shall obtain from the
applicant a certification that his pro-
posed activity complies with and will
be conducted in a manner that is con-
sistent with the approved state CZM
Program. Upon receipt of the certifica-
tion, the district engineer will forward
a copy of the public notice (which will
include the applicant's certification
statement) to the state coastal zone
agency and request its concurrence or
objection. If the state agency objects
to the certification or issues a decision
indicating that the proposed activity
requires further review, the district
engineer shall not issue the permit
until the state concurs with the certifi-
cation statement or the Secretary of
Commerce determines that the pro-
posed activity is consistent with the
purposes of the CZM Act or is neces-
sary in the interest of national securi-
ty. If the state agency fails to concur
or object to a certification statement
within six months of the state agen-
C-22
-------
Appendix C
Dredged Material Permit/Project Review Manual
§325.2
cy's receipt of the certification state-
ment, state agency concurrence with
the certification statement shall be
conclusively presumed. District engi-
neers will seek agreements with state
CZM agencies that the agency's fail-
ure to provide comments during the
public notice comment period will be
considered'as a concurrence with the
certification or waiver of the right to
concur or non-concur.
(lii) If the applicant is requesting a
permit for work on Indian reservation
lands which are in the coastal zone.
the district engineer shall treat the ap-
plication in the same manner as pre-
scribed for a Federal applicant in para-
graph (bX2)(i) of this section. Howev-
er, if the applicant is requesting a
permit on non-trust Indian lands, and
the state CZM agency .has decided to
assert jurisdiction over such lands, the
district engineer shall treat the appli-
cation in the same manner as pre-
scribed for a non-Federal applicant in
paragraph (b)(2Xii) of this section.
(3) Historic Properties. If the pro-
posed activity would involve any prop-
erty listed or eligible for listing in the
National Register of Historic Places.
the district engineer will proceed in ac-
cordance with Corps National Historic
Preservation Act implementing regula-
tions.
(4) Activities Associated with Feder-
al Projects. If the proposed activity
would consist of the dredging of an
access channel and/or berthing facili-
ty associated with an authorized feder-
al navigation project, the activity will
be included in the planning and co-
ordination of the construction or
maintenance of the federal project to
the maximum extent feasible. Sepa-
rate notice, hearing, and environmen-
tal documentation will not be required
for activities so included and coordi-
nated, and the public notice issued by
the district engineer'for these federal
and associated non-federal activities
will be the notice of intent to issue
permits for those included non-federal
dredging activities. The decision
whether to issue or deny such a permit
will be consistent with the decision on
the federal project unless special con-
siderations applicable to the proposed
activity are identified. (See § 322.5CO.)
C-23
33 CFR Ch. II (7-1-91 Edition)
(5) Endangered Species. Applications
will be reviewed for the potential
impact on threatened or endangered
species pursuant to section 7 of the
Endangered Species Act as amended.
The district engineer will include a
statement in the public notice of his
current knowledge of endangered spe-
cies based on his initial review of the
application (see 33 CFR 325.2(a)(2». If
the district engineer determines that
the proposed activity would not affect
listed species or their critical habitat.
he will include a statement to this
effect in the public notice. If he finds
the proposed activity may affect an
endangered or threatened species or
their critical habitat, he will initiate
formal consultation procedures with
the TLS. Fish and Wildlife Service or
National Marine Fisheries Service.
Public notices forwarded to the U£.
Fish and Wildlife Service or National
Marine Fisheries Service will serve as
the request for information on wheth-
er any listed or proposed to be listed
endangered or threatened species may
be present in the area which would be
affected by the proposed activity, pur-
suant to section 7(c) of the Act. Refer-
ences, definitions, and consultation
procedures are found in SO CFR Part
402.
(c) [Reserved]
(d) Timing of processing of applica-
tions. The district engineer will be
guided by the following time limits .for
the indicated steps in the evaluation
process:
(1) The public notice will be issued
within 15 days of receipt of all infor-
mation required to be submitted by
the applicant in accordance with para-
graph 325.1.(d) of this Part.
(2) The comment period on the
public notice should be for a reasona-
ble period of time within which inter-
ested parties may express their views
concerning the permit. The comment
period should not be more than 30
days nor less than 15 days from the
date of the notice. Before designating
comment periods less than 30 days.
the district engineer will consider, (i)
Whether the proposal is routine or
noncontroversial,
(ii) MaU time and need for com-
ments from remote areas.
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of th« Army, DoD
§325.2
(ill) Comments from similar propos-
als, and
(iv) The need for a site visit. After
considering the length of the original
comment period, paragraphs (a)(2) (i)
through (iv) of this section, and other
pertinent factors, the district engineer
may extend the comment period up to
an additional 30 days if warranted.
(3) District engineers will decide on
all applications not later than 60 days
after receipt of a complete application.
unless (i) precluded as a matter of law
or procedures required by law (see
below),
(11) The case mi"* be referred to
higher authority (see 1325.8 of thi?
Part).
(ill) The comment period is ex-
tended,
(iv) A timely submittal of informa-
tion or comments is not received from
the applicant,
(v> The processing is suspended at
the request of the applicant, or
(vi) Information needed by the dis-
trict engineer for a decision on the ap-
plication cannot reasonably be ob-
tained within the 60-day period. Once
the cause for preventing the decision
from being made within the normal
60-day period has been satisfied or
eliminated, the 60-day clock will start
running again from where it was sus-
pended. For example, if the comment
period is extended by 30 days, the dis-
trict engineer will, absent other re-
straints, decide on the application
within 90 days of receipt of a complete
application. Certain laws (e.g., the
Clean Water Act. the CZM Act. the
National Environmental Policy Act,
the National Historic Preservation
Act, the Preservation of Historical and
Archeological Data Act. the Endan-
gered Species Act. the Wild and Scenic
Rivers Act; and the Marine Protection.
Research and Sanctuaries Act) require
procedures such as state or other fed-
eral agency certifications, public hear-
ings, environmental impact state-
ments, consultation, special studies,
and testing which may prevent district
engineers from being able to decide
certain applications within 60 days.
(4) Once the district engineer has
sufficient information to make his
public interest determination, he.
should decide the permit application*
C-24
even though other agencies which
may have regulatory jurisdiction have
not yet granted their authorizations,
except where such authorizations are,
by federal law, a prerequisite to
making a decision on the DA permit
application. Permits granted prior to
other (non-prerequisite) authoriza-
tions by other agencies should, where
appropriate, be conditioned in such
manner as to give those other authori-
ties an opportunity to Undertake their
review without the applicant biasing
such review by «"*fc
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Appendix C
Dredged Material Permit/Project Review Manual
§325.2
not be used to authorize the transpor-
tation of dredged material for the pur-
pose of dumping it in ocean waters.
Letters of permission may be used:
(i) In those cases subject to section
10 of the Rivers and Harbors Act of
1899 when, in the opinion of the dis-
trict engineer, the proposed work
would be minor, would not have signif-
icant individual or cumulative impacts
on environmental values, and should
encounter no appreciable opposition.
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of the Army, DoD
§325.3
S32&3 Public notice.
(a) General The public notice is the
primary method of advising all inter-
ested parties of the proposed activity
for which a permit is sought and of so-
liciting comments and information
necessary to evaluate the probable
impact on the public interest. The
notice must, therefore, include suffi-
cient information to give a clear un-
derstanding of the nature and magni-
tude of the activity to generate mean-
ingful comment. The notice should in-
clude the following items of informa-
tion:
(1) Applicable statutory authority or
authorities;
(2) The name and address of the ap-
plicant;
(S) The name or title, address and
telephone number of the Corps em-
ployee from whom additional informa-
tion concerning the application may
be obtained;
(4) The location of the proposed ac-
tivity:
(5) A brief description of the pro-
posed activity, its purpose and intend-
ed use, so as to provide sufficient in-
formation concerning the nature of
the activity to generate meaningful
comments, including a description of
the type of structures, if any. to be
erected on fills or pile or float-support-
ed platforms, and a description of the
type, composition, and quantity of ma-
terials to be discharged or disposed of
in the ocean;
(6) A plan and elevation drawing
showing the general and specific site
location and character of all proposed
activities, including the size relation-
ship of the proposed structures to the
size of the impacted waterway and
depth of water in the area:
(7) If the proposed activity would
occur in the territorial seas or ocean
waters, a description of the activity's
relationship to the baseline from
which the territorial sea is measured;
(8) A list of other government au-
thorizations obtained or requested by
the applicant, including required certi-
fications relative to water quality,
coastal zone management, or marine
sanctuaries;
(8) If appropriate, a statement that
the activity is a categorical exclusion
C-26
for purposes of NEPA (see paragraph
7 of Appendix B to 33 CFR Part 230);
(10) A statement of the district engi-
neer's current knowledge on historic
properties;
(11) A statement of the district engi-
neer's current knowledge on endan-
gered species (see i 32S.2(b)(5));
(12) A statements) on evaluation
factors (see i 325.3(0);
- (13) Any other available information
which may assist interested parties in
evaluating the likely impact of the
proposed activity, if any. on factors af-
fecting the public interest;
(14) The comment period based on
1325.2(dX2>;
(15) A statement that any person
may request, in writing, within the
comment period specified in the
notice, that a public hearing be held to
consider the application. Requests for
public hearings shall state, with par-
ticularity, the reasons for holding a
public hearing;
(16) For non-federal applications in
states with an approved CZM Plan, a
statement on compliance with the ap-
proved Plan; and
(17) In addition, for section 103
(ocean dumping) activities:
(i) The specific location of the pro-
posed disposal site and its physical
boundaries;
(li) A statement as to whether the
proposed disposal site has been desig-
nated for use by the Administrator.
EPA, pursuant to section 102(c) of the
Act:
(ill) If the proposed disposal site has
not been designated by the Adminis-
trator, EPA, a description of the char-
acteristics of the proposed disposal
site and an explanation as to why no
previously designated disposal site is
feasible;
(iv) A brief description of known
dredged material discharges at the
proposed disposal site;
(v) Existence and documented ef-
fects of other authorized disposals
that have been made in the disposal
area (e.g., heavy metal background
reading and organic carbon content);
(vi) An estimate of the length of
time during which disposal would con-
tinue at the proposed site; and
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Appendix C
Dredged Material Permit/Project Review Manual
§325.3
(vii) Information on the characteris-
tics and composition of the dredged
material.
(b) PuoKc notice for general permits.
District engineers will publish a public
notice for all proposed regional gener-
al permits and for significant modifi-
cations to. or reissuance of, existing re-
gional permits within their area of ju-
risdiction. Public notices for statewide
regional permits may be issued jointly
by the affected Corps districts. The
notice will include all applicable infor-
mation necessary to provide a clear
understanding of the proposal. In ad-
dition, the notice will state the avail-
ability of information at the district
office which reveals the Corps' provi-
sional determination that the pro-
posed activities comply with the re-
quirements for issuance of general
permits. District engineers will publish
a public notice for nationwide permits
in accordance with 33 CFR 330.4.
(c) Evaluation factors. A paragraph
describing the various evaluation fac-
tors on which decisions are based shall
be included in every public notice.
(1) Except as provided in paragraph
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Appendix C
Dredged Material Permit/Project Review Manual
Corp* of Engin»«rs, D*pt. of th« Army, DoD
§325.4
tion Officer, and the District Com-
mander, U.S. Coast Guard.
(2) In addition to the general distri-
bution of public notices cited above,
notices will be sent to other addressees
in appropriate cases as follows:
(i) If the activity would involve
structures or dredging along the
shores of the seas or Great Lakes, to
the Coastal Engineering Research
Center. Washington, DC 20016.
(ii) If the activity would involve con-
struction of .fixed structures or artifi-
cial islands on the outer continental
shelf or in the territorial seas, to the
Assistant Secretary of Defense (Man-
power. Installations, and Logistics
(ASDCMI&D), Washington. DC 20310;
the Director. Defense Mapping
Agency (Hydrographic Center) Wash-
ington. DC 20390. Attention. Code
NS12; and the Charting and Geodetic
Services. N/CG222, National Ocean
Service NOAA. Rockville. Maryland
20852, and to affected military instal-
lations and activities.
(ill) If the activity involves the con-
struction of structures to enhance fish
propagation (e.g., fishing reefs) along
the coasts of the United States, to the
Director. Office of Marine Recreation-
al Fisheries. National Marine Fisheries
Service, Washington. DC 20235.
(iv) If the activity involves the con-
struction of structures which may
affect aircraft operations or for pur-
poses associated with seaplane oper-
ations, to the Regional Director of the
Federal Aviation Administration.
(v) If the activity would be in con-
nection with a foreign-trade zone, to
the Executive Secretary. Foreign-
Trade Zones Board, Department of
Commerce, Washington. DC 20230 and
to the appropriate District Director of
Customs as Resident Representative.
Foreign-Trade Zones Board.
(3) It is presumed that all interested
parties and agencies will wish to re-
spond to public notices; therefore, a
lack of response will be interpreted as
meaning that there is no objection to
the proposed project. A copy of the
public notice with the list of the ad-
dresses to whom the notice was sent
will be included in the record. If a
question develops with respect to an
activity for which another agency has
responsibility and that other agency
C-28
has not responded to the public notice.
the district engineer may request its
comments. Whenever a response to a
public notice has been received from a
member of Congress, either in behalf
of a constitutent or himself, the dis-
trict engineer will inform the member
of Congress of the final decision.
(4) District engineers will update
public notice mailing lists at least once
every two years.
9 325.4 Conditioning of permits.
(a) District engineers will add special
conditions to Department of the Army
permits when such conditions are nec-
essary to satisfy legal requirements or
to otherwise satisfy the public interest
requirement. Permit conditions will be
directly related to the impacts of the
proposal, appropriate to the scope and
degree of those impacts, and reason-
ably enforceable.
(1) Legal requirements which may
be satisfied by means of Corps permit
conditions include compliance with
the 404(b)(l) guidelines, the EPA
ocean dumping criteria, the Endan-
gered Species Act, and requirements
imposed by conditions on state section
401 water quality certifications.
(2) Where appropriate, the district
engineer may take into account the
existence of controls imposed under
other federal, state, or local program^
which would achieve the objective of
the desired condition, or the existence
of an enforceable agreement between
the applicant and another party con-
cerned with the resource In question.
in determining whether a proposal
complies with the 404(b)Q) guidelines,
«cean dumping criteria, and other ap-
plicable statutes, and is not contrary
to the public interest. In such cases.
the Department of the Army permit
will be conditioned to state.that mate-
rial changes in. or a failure to imple-
ment and enforce such program or
agreement, will be grounds for modify-
ing, suspending, or revoking the
permit.
(3) Such conditions may be accom-
plished on-site, or may be accom-
plished off-site for mitigation of signif-
icant losses which are specifically
identifiable, reasonably likely to occur.
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Appendix C
Dredged Material Permit/Project Review Manual
§325.5
and of importance to the human or
aquatic environment.
(b) District engineers are authorized
to add special conditions, exclusive of
paragraph (a) of this section, at the
applicant's request or to clarify the
permit application.
(c) If the district engineer deter-
mines that, special conditions are nec-
essary to insure the proposal will not
be contrary to the public interest, but
those conditions would not be reason-
ably implementable or enforceable, he
will deny the permit.
(d) Bonds. If the district engineer
has reason to consider that the per-
mittee might be j~. .-anted from com-
pleting work which is necessary to pro-
tect the public interest, he may re-
quire the permittee to post a bond of
sufficient amount to indemnify the
government against any loss as a
result of corrective action it might
take.
8 32&5 Forms of permits.
(a) General discussion. (1) DA per-
mits under this regulation will be in
the form of individual permits or gen-
eral permits. The basic format shall be
ENG Form 1721. DA Permit (Appen-
dix A).
(2) The general conditions included
in ENG Form 1721 are normally appli-
cable to all permits; however, some
conditions may not apply to certain
permits and may be deleted by the is-
suing officer. Special conditions appli-
cable to the specific activity will be in-
cluded in the permit as necessary to
protect the public interest in accord-
ance with § 325.4 of this Part.
(b) Individual permits—(1) Standard
permits. A standard permit is one
which has been processed through the
public interest review procedures, in-
cluding public notice and receipt of
comments, described throughout this
Part. The standard individual permit
shall be issued using ENG Form 1721.
(2) Letters of permission. A letter of
permission will be issued where proce-
dures of §325.2(eKl) have been fol-
lowed. It will be in letter form and will
identify the permittee, the authorized
work and location of the work, the
statutory authority, any limitations on
the work, a construction time limit
and a requirement for a report of com-
33 CFR Ch. II (7-1-91 Edition)
pleted work. A copy of the relevant
general conditions from ENG Form
1721 will be attached and will be incor-
porated by reference into the letter of
permission.
(c) General permits—(1) Regional
permits. Regional permits are a type
of general permit. They may be issued
by a division or district engineer after
compliance with the other procedures
of this regulation. If the public inter-
est so requires, the issuing authority
may condition the regional permit to
require a case-by-case reporting and
acknowledgment system. However, no
separate applications or other authori-
zation documents will be required.
(2) Nationwide permits. Nationwide
permits are a type of general permit
and represent DA authorizations that
have been issued by the regulation (33
CFR Part 330) for certain specified ac-
tivities nationwide. If certain condi-
tions are met. the specified activities
can take place without the need for an
individual or regional permit.
(3) Programmatic permits. Program-
matic permits are a type of general
permit founded on an existing state.
local or other Federal agency program
and designed to avoid duplication with
that program.
(d) Section 9 permits. Permits for
structures in interstate navigable
waters of the United States under sec-
tion 9 of the Rivers and Harbors Act
of 1899 will be drafted at DA level.
8 325.6 Duration of permits.
(a) General DA permits may author-
ize both the work and the resulting
use. Permits continue in effect until
they automatically expire or are modi-
fied, suspended, or revoked.
(b) Structures. Permits for the exist-
ence of a structure or other activity of
a permanent nature are usually for an
indefinite duration with no expiration
date cited. However, where a tempo-
rary structure is authorized, or where
restoration of a waterway is contem-
plated, the permit will be of limited
duration with a definite expiration
date.
(c) Works. Permits for construction
work, discharge of dredged or fill ma-
terial, or other activity and any con-
struction period for a structure with a
C-29
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, Dapt. of the Army, DeD
§325.7
permit of indefinite duration under
paragraph (b) of this section will
specify time limits for completing the
work or activity. The permit may also
specify a date by which the work must
be started, normally within one year
from the date of issuance. The date
will be established by the issuing offi-
cial and will provide reasonable times
based on the scope and nature of the
work involved. Permits issued for the
transport of dredged material for the
purpose of disposing of it in ocean
waters will specify a completion date
for the disposal not to exceed three
years from the date of permit issu-
ance.
(d) Extensions of time. An authoriza-
•tion or construction period will auto-
matically expire if the permittee fails
to request and receive an extension of
time. Extensions of time may be grant-
ed by the district engineer. The per-
mittee must request the extension and
explain the basis of the request, which
will be granted unless the district engi-
neer determines that an extension
would be contrary to the public inter-
est. Requests for extensions wfii be
processed in accordance with the regu-
lar procedures of { 325.2 of this Part,
including issuance of a public notice.
except that such processing is not re-
quired where the district engineer de-
termines that there have been no sig-
nificant changes in the attendant cir-
cumstances since the authorization
was issued.
(e) Maintenance dredging. If the au-
thorized work includes periodic main-
tenance dredging, an expiration date
for the authorization of that mainte-
nance dredging will be included in the
permit. The expiration date, which in
no event is to exceed ten years from
the date of issuance of the permit, wfll
be established by the issuing official
after evaluation of the proposed
method of dredging and disposal of
the dredged material in accordance
with the requirements of 33 CFR
Parts 320 to 325. In such cases, the dis-
trict engineer shall require notifica-
tion of the maintenance dredging
prior to actual performance to insure
continued compliance with the re-
quirements of this regulation and 33
CFR Parts 320 to 324. If the permittee
desires to continue maintenance
dredging beyond the expiration date.
he must request a new permit. The
permittee should be advised to apply
for the new permit six months prior to
the time he wishes to do the mainte-
nance work.
6325.7 Modification, suspension, or revo-
cation of permits.
(a) General The district engineer
may reevaluate the circumstances and
conditions of any permit, including re-
gional permits, either on his own
motion, at the request of the .permit-
tee, or a third party, or as the result of
periodic progress inspections, and ini-
tiate action to modify, suspend, or
revoke a permit as may be made neces-
sary by considerations of the public in-
terest. In the case of regional permits,
this reevaluation may cover individual
activities, categories of activities, or
geographic areas. Among the factors
to be considered are the extent of the
permittee's compliance with the terms
and conditions of the permit; whether
or not circumstances relating to the
authorized activity have changed since
the permit was issued or extended, and
the continuing adequacy of or need for
the permit conditions: any significant
objections to the authorized activity
which were not earlier considered; re-
visions to applicable statutory and/or
regulatory authorities; and the extent
to which modification, suspension, or
other action would adversely affect
plans, investments and actions the
permittee has reasonably made or
taken in reliance on the permit. Signif-
icant increases in scope of a permitted
activity will be processed as new appli-
cations for permits in accordance with
§ 325.2 of this Part, and not as modifi-
cations under this section.
(b) Modification. Upon 'request by
the permittee or. as a result of re-
evaluation of the circumstances and
conditions of a permit, the district en-
gineer may determine that the public
interest requires a modification of the
terms or conditions of the permit. In
such cases, the district engineer will
hold informal consultations with the
permittee to ascertain whether the
terms and conditions can be modified
by mutual agreement. If a mutual
agreement is reached on modification
C-30
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Appendix C
Dredged Material Permit/Project Review Manual
§325.8
of the terms and conditions of the
permit, the district engineer will give
the permittee written notice of the
modification, which will then become
effective on such date as the district
engineer may establish. In the event a
mutual agreement cannot be reached
by the district engineer and the per-
mittee, the district engineer will pro-
ceed in accordance with paragraph (c)
of this section if immediate suspension
is warranted. In cases where immedi-
ate suspension is not warranted but
the district engineer determines that
the permit should be modified, he will
notify the permittee of the proposed
modification and reasons therefor, and
that he may request & meeting with
the district engineer and/or a public
hearing. The modification will become
effective on the date set by the district
engineer which shall be at least ten
days after receipt of the notice by the
permittee unless a hearing or meeting
is requested within that period. If the
permittee fails or refuses to comply
with the modification, the district en-
gineer will proceed in accordance with
33 CFR Part 326. The district engineer
shall consult with resource agencies
before modifying any permit terms or
conditions, that would result in great-
er impacts, for a project about which
that agency expressed a significant in-
terest in the term, condition, or fea-
ture being modified prior to permit is-
suance.
(c) Suspension. The district engineer
may suspend a permit after preparing
a written determination and finding
that immediate suspension would be in
the public interest. The district engi-
neer will notify the permittee in writ-
ing by the most expeditious means
available that the permit has been sus-
pended with the reasons therefor, and
order the permittee to stop those ac-
tivities previously authorized by the
suspended permit. The permittee will
also be advised that following this sus-
pension a decision will be made to
either reinstate, modify, or revoke the
permit, and that he may within 10
days of receipt of notice of the suspen-
sion, request a meeting with the dis-
trict engineer and/or a public hearing
to present information in this matter.
If a hearing is requested, the proce-
dures prescribed in 33 CFR Part 327
33 CFR Ch. II (7-1-91 Edition)
will be followed. After the completion
of the meeting or hearing (or within a
reasonable period of time after issu-
ance of the notice to the permittee
that the permit has been suspended if
no hearing or meeting is requested),
the district engineer will take action to
reinstate, modify, or revoke the
permit.
(d) Revocation. Following comple-
tion of the suspension procedures in
paragraph (c) of this section, if revoca-
tion of the permit is found to be in the
public interest, the authority who
made the decision on the original
permit may revoke it. The permittee
will be advised in writing of the "inal
decision.
(e) Regional permits. The issuing of-
ficial may, by following the procedures
of this section, revoke regional permits
for individual activities, categories of
activities, or geographic areas. Where
groups of permittees are involved,
such as for categories of activities or
geographic areas, the informal discus-
sions provided in paragraph (b) of this
section may be waived and any written
notification nay be made through the
general public notice procedures of
this regulation. If a regional permit is
revoked, any permittee may then
apply for an individual permit which
shall be processed in accordance with
these regulations.
B 325.8 Authority to iuue or deny permits.
(a) General Except as otherwise pro-
vided in this regulation, the Secretary
of the Army, subject to such condi-
tions as he or his authorized repre-
sentative may from time to time
impose, has authorized the Chief of
Engineers and his authorized repre-
sentatives to issue or deny permits for
dams or dikes in intrastate waters of
the United States pursuant to section
9 of the Rivers and Harbors Act of
1899; for construction or other work in
or affecting navigable waters of the
United States pursuant to section 10
of the Rivers and Harbors Act of 1899;
for the discharge of dredged or fill ma-
terial into waters of the United States
pursuant to section 404 of the Clean
Water Act; or for the transportation
of dredged material for the purpose of
disposing of it into ocean waters pur-
C-31
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of th« Army, DoD
§325.9
suant to section 103 of the Marine
Protection, Research and Sanctuaries
Act of 1972, as amended. The author-
ity to issue or deny permits in inter-
state navigable waters of the United
States pursuant to section 9 of the
Rivers and Harbors Act of March 3,
1899 has not been delegated to the
Chief of Engineers or his authorized
representatives.
(b) District engineer's authority. Dis-
trict engineers are authorized to issue
or deny permits in accordance with
these regulations pursuant to sections
9 and 10 of the Rivers and Harbors
Act of 1899; section 404 of the Clean
Water Act; and section 103 of the
Marine Protection, Research and
Sanctuaries Act of 1972. as amended,
in all cases not required to be referred
to higher authority (see below). It is
essential to the legality of a permit
that it contain the name of the district
engineer as the issuing officer. Howev-
er, the permit need not be signed by
the district engineer in person but
may be signed for and in behalf of him
by whomever he designates. In cases
where permits are denied for reasons
other than navigation or failure to
obtain required local, state, or other
federal approvals or certifications, the
Statement of Findings must conclu-
sively justify a denial decision. District
engineers are authorized to deny per-
mits without issuing a public notice or
taking other procedural steps where
required local, state, or other federal
permits for the proposed activity have
been denied or where he determines
that the activity will clearly interfere
with navigation except in all cases re-
quired to be referred to higher author-
ity (see below). District engineers are
also authorized to add, modify, or
delete special conditions in permits in
accordance with {325.4 of this Part,
except for those conditions which may
have been imposed by higher author-
ity, and to modify, suspend and revoke
permits according to the procedures of
i 325.7 of this Part. District engineers
wfll refer the following applications to
the division engineer for resolution:
(1) When a referral is required by a
written agreement between the head
of a Federal agency and the Secretary
of the Army;
C-32
(2) When the recommended decision
is contrary to the written position of
the Governor of the state in which the
work would be performed;
(3) When there is substantial doubt
as to authority, law, regulations, or
policies applicable to the proposed ac-
tivity.
(4) When higher authority requests
the application be forwarded for deci-
sion; or
(5) When the district engineer is pre-
cluded by law or procedures required
by law from taking final action on the
application (e.g. section 9 of the Rivers
and Harbors Act of 1899. or terrier .
sea baseline changes).
(c) Division engineer's authority. Di-
vision engineers will review and evalu-
ate all permit applications referred by
district engineers. Division engineers
may authorize the issuance or denial
of permits pursuant to section 10 of
the Rivers and Harbors Act of 1899;
section 404 of the Clean Water Act;
and section 103 of the Marine Protec-
tion, Research and Sanctuaries Act of
1972. as amended; and the inclusion of
conditions in accordance with 1325.4
of this Part in all cases not required to
be referred to the Chief of Engineers.
Division engineers will refer the fol-
lowing applications to the Chief of En-
gineers for resolution:
(1) When a referral is required by a
written agreement between the head
of a Federal agency and the Secretary
of the Army;
(2) When there is substantial doubt
as to authority, law. regulations, or
policies applicable to the proposed ac-
tivity;
(3) When higher authority requests
the application be forwarded for deci-
sion; or
(4) When the division engineer is
precluded by law or procedures re-
quired by law from taking final action
on the application.
8325.9 Authority to determine jurisdic-
tion.
District engineers are authorized to
determine the area defined by the
terms "navigable waters of the United
States" and "waters of the United
States" except:
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Appendix C
Dredged Material Permit/Project Review Manual
§325.10
(a) When a determination of naviga-
bility is made pursuant to 33 CPR
329.14 (division engineers have this au-
thority); or
(b) When EPA makes a section 404
jurisdiction determination under its
authority.
§325.10 Publicity.
The district engineer will establish
and maintain a program to assure that
potential applicants for permits are in-
formed of the requirements of this
regulation and of the steps required to
obtain permits for activities in waters
of the United States or ocean waters.
Whenever the dii^a engineer be-
comes aware of plans being developed
by either private or public entities
which might require permits for im-
plementation, he should advise the po-
tential applicant in writing of the stat-
utory requirements and the provisions
of this regulation. Whenever the dis-
trict engineer is aware of changes in
Corps of Engineers regulatory jurisdic-
tion, he will issue appropriate public
notices.
AFFENMX A—PERMIT FORM AND
SPECIAL CONDITIONS
A. Permit Form
DEPAKTKEMT or THT AKMT PCBKZT
Permittee —
Permit No.
Issuing Office — —
NOTE.—The term "you" and its deriva-
tives, as used in this permit, means the per-
mittee or any future transferee. The term
"this office" refers to the appropriate dis-
trict or division office of the Corps of Engi-
neers having jurisdiction over the permitted
activity or the appropriate official of that
office acting under the authority of the
commanding officer.
You are authorized to perform work in ac-
cordance with the terms and conditions
specified below.
Project Description: (Describe the permit-
ted activity and its intended use with refer-
ences to any attached plans or drawings
that are considered to be a part of the
project description. Include a description of
the types and quantities of dredged or fill
materials to be discharged in jurisdictional
waters.)
Project Location: (Where appropriate,
provide the names of and the locations on
the waters where the permitted activity and
C-33
33 CFR Ch. II (7-1-91 Edition)
any off-site disposals will take place. Also.
using name, distance, and direction, locate
the permitted activity in reference to a
nearby landmark such as a town or city.)
Permit Conditions:
General Conditions:
1. The time limit for completing the work
authorized ends on If you find
that you need more time to complete the
authorized activity, submit your request for
a time extension to this office for consider-
ation at least one month before the above
date is reached.
2. You must *n*«nMtin the activity author-
ized by this permit in good condition and in
conf ormance with the terms and conditions
of this permit. You are not relieved of this
requirement if you abandon the permitted
activity, although you may make a good
faith transfer to a third party in compliance
with General Condition 4 below. Should you
wish to cease to m*frit>fn the authorized ac-
tivity or should you desire to abandon it
without a good faith transfer, you must
obtain a modification of this permit from
this office, which may require restoration of
the area.
3. If you discover any previously unknown
historic or archeological remains while ac-
complishing the activity authorized by this
permit, you, must immediately notify this
office of what you have found. We will initi-
ate the Federal and state coordination re-
quired to determine if the remains warrant
a recovery effort or if the site is eligible for
listing in the National Register of Historic
Places.
4. If you sell the property associated with
this permit, you must obtain the signature
of the new owner in the space provided and
forward a copy of the permit to this office
to validate the transfer of this authoriza-
tion.
5. If a conditioned water quality certifica-
tion has been issued for your project, you
must comply with the conditions specified
in the certification as special conditions to
this permit. For your convenience, a copy of
the certification is attached if it contains
such conditions.
6. You must allow representatives from
this office to inspect the authorized activity
at any time deemed necessary to ensure
that it is being or has been accomplished in
accordance with the terms and conditions of
your permit.
Special Conditions: (Add special condi-
tions as required in this space with refer-
ence to a continuation sheet if necessary.)
Further Information:
1. Congressional Authorities: You have
been authorized to undertake the activity
described above pursuant to:
( ) Section 10 of the Rivers and Harbors
Act Of 1899 (33 U.S.C. 403).
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D*pt. of fth« Army, DoD
Part 325, App. A
( ) Section 404 of the Clean Water Act
(33 U.S.C. 1344).
( ) Section 103 of the Marine Protection,
Research and Sanctuaries Act of 1972 (33
U.S.C. 1413).
2. Limits of this authorization.
a. This permit does not obviate the need
to obtain other Federal, state, or local au-
thorizations required by law.
b. This permit does not grant any proper-
ty rights or exclusive privileges.
c. This permit does not authorize any
injury to the property or rights of others.
d. This permit does not authorize interfer-
ence with any existing or proposed Federal
project.
• 3. Limits of Federal Liability. In issuing
this permit, the Feu: i2 Government does
not assume any liability for the following:
a. Damages to the permitted project or
uses thereof as a result of other permitted
or unpermitted activities or from natural
causes. ~
b. Damages to the permitted project or
uses thereof as a result of current or future
activities undertaken by or on behalf of the
United States in the public interest.
c. Damages to persons, property, or to
other permitted or unpermitted activities or
structures caused by the activity authorized
by this permit.
d. Design or construction deficiencies asso-
ciated with the permitted work.'
e. Damage claims associated with «ny
future modification, suspension, or revoca-
tion of this permit.
4. Reliance on Applicant's Data: The de-
termination of this office that issuance of
this permit is not contrary to the public in-
terest was made in reliance on the informa-
'tion you provided.
5. Revaluation of Permit Decision. This
office may reevaluate its decision on this
permit at any time the circumstances war-
rant. Circumstances that could require a re-
evaluation include, but are not limited to.
the following:
a. You fail to comply with the terms and
conditions of this permit.
b. The information provided by you in
' support of your permit application proves to
have been false, incomplete, or inaccurate
(See 4 above>.
c. Significant new information surfaces
which this office did not consider in reach-
ing the original public interest decision.
Such a revaluation may result in a deter-
mination that it is appropriate to use the
suspension, modification, and revocation
procedures contained in 33 CFR 325.7 or en-
forcement procedures' such as those con-
tained in 33 CFR 326.4 and 326.5. The refer-
enced enforcement procedures provide for
the Issuance of an administrative order re-
quiring you to comply with the terms and
conditions of your permit and for the initi-
ation of legal action where appropriate. You
C-34
will be required to pay for any corrective
measures ordered by this office, and if you
fail to ° comply with such directive, this
office may in certain situations (such as
those specified in 33 CFR 209.170) accom-
plish the corrective measures by contract or
otherwise and bill you for the cost.
6. Extensions. General condition 1 estab-
lishes a time limit for the completion of the
activity authorized by this permit. Unless
there are circumstances requiring either a
prompt completion of the authorized activi-
ty or a revaluation of the public interest
decision, the Corps will normally give favor-
able consideration to a request for an exten-
sion of this time limit.
Tour signature below, as permittee, inc
cates that you accept and agree to comply
with the terms and conditions of this
permit.
(Permittee)
(Date)
This permit becomes effective when the
Federal official, designated to act for the
Secretary of the Army, has signed below.
(District Engineer)
(Date)
When the structures or work-authorized
by this permit are still in existence at the
time the property is transferred, the terms
and conditions of this permit will continue
to be binding on the new ownerts) of the
property. To validate the transfer of this
permit and the associated liabilities associ-
ated with compliance with its terms and
conditions, have the transferee sign and
date below.
(Transferee)
(Date)
B. Special Conditions. No special condi-
tions will be preprinted on the permit form.
The following and other special conditions
should be added, as appropriate, in the
space provided after the general conditions
or on a referenced continuation sheet:
1. Your use of the permitted activity must
not interfere with the public's right to free
navigation on all navigable waters of the
United States.
2. You must have a copy of this permit
available on the vessel used for the author-
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Appendix C
Dredged Material Permit/Project Review Manual
Part 325, App. B
teed transportation and disposal of dredged
material.
3. You must advise this office in writing.
at least two weeks before you start mainte-
nance dredging activities under the author-
ity of this permit.
4. You must install and maintain, at your
expense, any safety lights and signals pre-
scribed by the United States Coast Guard
(USCO). through regulations or otherwise.
on your authorized facilities. The USCO
may be reached at the following address
and telephone number
5. The condition below wfll be used when a
Corps permit authorizes an artificial reef.
an aerial transm.1 'in line, a submerged
cable or pipeline, or a structure on the o<
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D*pt. of th« Army, DoD
Part 325, App. B
(4) Boat launching ramps;
(5) All applications which qualify as let-
ters of permission (as described at 33 CFR
325.5(bX2)).
b. Extraordinary Circumstances. District
engineers should be alert for extraordinary
circumstances where normally excluded ac-
tions could have substantial environmental
effects and thus require an EA or EIS. For a
period of one year from the effective data of
these regulations, district engineers should
TnyintufTi an information list on the type
and number of categorical exclusion actions
which, due to extraordinary circumstances.
triggered the need for an EA/FONSI or
EIS. If a district engineer determines that a
categorical exclusion should be modified.
the information will be furnished to the di-
vision engineer who will review and analyze
the actions and circumstances to determine
if there is a basis for recommending a modi-
fication to the list of categorical exclusions.
HQUSACB (CECW-OR) will review recom-
mended changes for Corps-wide consistency
and revise the list accordingly.
7. EA/TONSJ Document. (See 40 CFR
1508.9 and 1508.13 for definitions)—a. Envi-
ronmental Assessment (£4) and Findings of
No Significant Impact IFOffST). The EA
should normally be combined with other re-
quired documents (EA/404(bXl)/8OF/
FONSX). "EA" as used throughout this Ap-
pendix normally refers to this combined
document. The district engineer should
• complete an EA as soon as practicable after
all relevant information is available (Len
after the comment period for the public
notice of the permit application has ex-
pired) and when the EA is a separate docu-
ment it must be completed prior to comple-
tion of the statement of finding (8OF).
When the EA confirms that the impact of
the applicant's proposal is not significant
and there are no "unresolved conflicts con-
cerning alternative uses of available re-
sources (section 102C2XE) of KEFA).
and the proposed activity is a "water de-
pendent" activity as defined in 40 CFR
230.10(aX3). the EA need not include a dis-
cussion on alternatives. In all other cases
where the district engineer determines that
there are unresolved conflicts concerning al-
ternative uses of available resources, the EA
shall include -a discussion of the reasonable
alternatives which are to be considered by
the ultimate decision-maker. The decision
options available to the Corps, which em-
brace all of the applicant's alternatives, are
issue the permit, issue with modifications or
deny the permit. Modifications are limited
to those project modifications within the
scope of established permit conditioning
policy (See 33 CFR 325.4). The decision
option to deny the permit results in the "no
action" alternative (Le. no activity requiring
a Corps permit). The combined document
normally should not exceed 15 pages and
shall conclude with a FONSI (See 40 CFR
1508.13) or .a determination that an EIS is
required. The district engineer may delegate
the signing of the NEPA document. Should
the EA demonstrate that an F?s is neces-
sary, the district engineer shall follow the
procedures outlined in paragraph 8 of this
Appendix. In those eases where it is obvious
an EIS is required, an EA is not required.
However, the district engineer should docu-
ment his reasons for requiring an EIS.
b. Scope of Analysis. (1) In some situa-
tions, a permit applicant may propose to
conduct a specific activity requiring a De-
partment of the Army (DA) permit
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Appendix C
Dredged Material Permit/Project Review Manual
Port 325, App. B
trol over the subsequent use of such funds.
and not including judicial or administrative
civil or criminal enforcement actions).
B. In determining whether sufficient cu-
mulative Federal involvement exists to
expand the scope of Federal action the dis-
trict engineer should consider whether
other Federal agencies are required to take
Federal action under the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et *ee.>. the
National Historic Preservation Act of 1966
(16 U.S.C. 470 et «efl.). the Endangered Spe-
cies Act of 1973 (16 U.S.C. 1531 et teg.). Ex-
ecutive Order 11990. Protection of Wet-
lands. (42 U-B.C. 4321 91977). and other en-
vironmental review laws and executive
orders.
C. The district engineer should also refer
to paragraphs 8(b) and Me) ?f this appendix
for guidance on determining whether it
should be the lead or a cooperating agency
in these situations.
These factors wOl be added to or modified
through-guidance as additional field experi-
ence develops.
(3) Example*: If a non-Federal oQ refin-
ery, electric generating plant, or industrial
facility is proposed to be built on an upland
site and the only DA permit requirement re-
lates to a connecting pipeline, supply load-
ing terminal or fill road, that pipeline, ter-
minal or fill road permit, in and of itself.
normally would not constitute sufficient
overall Federal involvement with the
project to justify expanding the scope of a
Corps NEPA document to cover upland por-
tions of the facility beyond the structures in
the immediate vicinity of the regulated ac-
tivity that would effect the location and
configuration of the regulated activity.
Similarly, if an applicant seeks a DA
permit to fill waters or wetlands on which
other construction or work is proposed, the
control and responsibility of the Corps, as
well as its overall Federal involvement
would extend to the portions of the project
to be located on the permitted fill However.
the NEPA review would be extended to the
entire project, including portions outside
waters of the United States, only if suffi-
cient Federal control and responsibility over
the entire project is determined to exist;
that is. if the regulated activities, and those
activities involving regulation, funding, etc.
by other Federal agencies, comprise a sub-
stantial portion of the overall project. In
any case, once the scope of analysis has
been defined, the NEPA analysis for that
action should include direct, indirect and cu-
mulative impacts on all Federal Interests
within the purview of the NEPA statute.
The district engineer should, whenever
practicable, incorporate by reference and
rely upon the reviews of other Federal and
State agencies.
For those regulated activities that com-
prise merely a link in a transportation or
33 CFR Ch. II (7-1-91 Edition)
utility transmission project, the scope of
analysis should address the Federal action.
Le.. the specific activity requiring a DA
permit and any other portion of the project
that is within the control or responsibility
of the Corps of Engineers (or other Federal
agencies).
For example, a 60-mile electrical transmis-
sion cable crossing a 1 1/4 mile wide river
that is a navigable water of the United
States requires a DA permit. Neither the
origin and destination of the cable nor its
route to and from the navigable water.
except as the route applies to the location
and configuration of the crossing, are
within the control or responsibility of the
Corps of Engineers. Those matters would
not be included in the scope of analysis
which, in this ease, would address the im-
pacts of the specific cable crossing.
Conversely, for those activities that re-
quire a DA permit for a major portion of a
transportation or utility transmission
project, so that the Corps permit bears
upon the origin and destination as well as
the route of the project outside the Corps
regulatory boundaries, the scope of analysis
should include those portions of the project
outside the boundaries of the Corps section
10/404 regulatory jurisdiction. To use the
same example, if 30 miles of the 50-mile
transmission line crossed wetlands or other
"waters of the United States." the scope of
analysis should reflect impacts of the whole
50-mile transmission line.
For those activities that require a DA
permit for a major portion of a shoreside fa-
cility, the scope of analysis should extend to
upland portions of the facility. For example.
a shipping terminal normally requires
dredging, wharves, bulkheads, berthing
areas and disposal of dredged material in
order to function. Permits for such activities
are normally considered sufficient Federal
control and responsibility to warrant ex-
tending the scope of analysis to include the
upland portions of the facility.
In all cases, the scope of analysis used for
analyzing both impacts and alternatives
should be the same scope of analysis used
for analyzing the benefits of a proposal.
8. Environmental Impact Statement—
General—*. Determination of Lead and Co-
operating Agencies. When the district engi-
neer determines that an EIS is required, he
will contact all appropriate Federal agencies
to determine their respective role(s). Le..
that of lead agency or cooperating agency.
b. Corp* as Lead Agency. When the Corps
is lead agency, it will be responsible for
mypagtng the EIS process, including those
portions which come under the jurisdiction
of other Federal agencies. The district engi-
neer is authorized to require the applicant
to furnish appropriate information as dis-
cussed in paragraph 3 of this appendix. It is
G-37
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engin««rs, Dtpt. of the Army, DoD
Part 325, App. B
permissable for the Corps to reimburse.
under agreement, staff support from other
Federal agencies beyond the immediate Ju-
risdiction of those agencies.
e. Corp* at Cooperating Agency. If an-
other agency is the lead agency as set forth
by the CEQ regulations (40 CFR 1501.5 and
ISOl.Ka) and 1508.16). the district engineer
will coordinate with that agency as a coop-
erating agency under 40 CFR I50l.6(b) and
1508.5 to insure that agency's resulting TCTS
may be adopted by the Corps for purposes
of exercising its regulatory authority. At a
cooperating agency the Conn will be re-
sponsible to the lead agency for providing
environmental information which Is directly
related to the regulatory matter involved
.and which is required for the preparation of
an EIS. This in no way shall be construed as
lessening the district.- 'neer's ability to re-
quest the applicant to furnish appropriate
information as discussed in paragraph I of
this appendix.
When the Corps is a cooperating agency
becausc-of a regulatory responsibility, the
district engineer should. In accordance with
40 CFR 1501.«bX4>. "make available istaff
support at the lead agency's request" to en-
hance the fetter's interdisciplinary capabil-
ity provided the request pertains to the
Corps regulatory action covered by the EIS.
to the extent this is practicable. Beyond
this. Corps staff support will generally be'
made available to the lead agency to the
extent practicable within its own responsi-
bility and available resources. Any assist-
ance to a lead agency beyond this will nor-
mally be by written agreement with the lead
agency providing for the Corps expenses on
a cost reimbursable basis. If the district en-
gineer believes a public hearing should be
held and another agency is lead agency, the
district engineer should request such a hear-
ing and provide his reasoning for the re-
quest The district engineer should suggest
a joint hearing and offer to take an active
part in the hearing and ensure coverage of
the Corps concerns.
d. Scope of Analysis. See paragraph 7b.
e. Scoping Process. Refer to 40 CFR 1501.7
and 33 CFR 230.12.
f. Contracting. See 40 CFR 1506.5.
(1) The district engineer may prepare an
ins. or may obtain information needed to
prepare an EIS. either with his own staff or
by contract. In choosing a contractor who
reports directly to the district engineer, the
procedures of 40 CFR 1506.5(c) will be fol-
lowed.
(2) Information required for an SIS also
may be furnished by the applicant or a con-
sultant employed by the applicant. Where
this approach is followed, the district engi-
neer wm (1) advise the applicant and/or his
consultant of the Corps information re-
quirements, and (II) meet with the applicant •
and/or his consultant from time to time and
C-38
provide him with the district engineer's
views regarding adequacy of the data that
are being developed (including how the dis-
trict engineer will view such data in light of
any possible conflicts of interest).
The applicant and/or his consultant may
accept or reject the district engineer's guid-
ance. The district engineer, however. ™«y
after specifying the information in conten-
tion, require the applicant to resubmit any
previously submitted data which the district
engineer considers inadequate or inaccurate.
In all eases, the district engineer should doc-
ument in the record the Corps independent
evaluation of the information and its accu-
racy, as required by 40 CFR 1506.5(a).
g. Change in EIS Determination. If It is
determined that an EIS is not required after
a notice of intent has been published, the
district engineer shall terminate the EIS
preparation and withdraw the notice of
intent. The district engineer shall notify in
writing the appropriate division engineer
HQUSACE (CECW-OR); the appropriate
EPA regional administrator, the Director.
Office of Federal Activities (A-104). EPA.
401 M Street SW., Washington. DC 20460
and the public of the determination.
h. Time Limit*. For regulatory actions.
the district engineer wffl follow S3 CFR
230.17(a) unless unusual delays caused by
applicant inaction or compliance with other
statutes require longer time frames for JCTS
preparation. At the outset of the EIS effort.
schedule milestones will be developed and
made available to the applicant and the
public. If the milestone dates are not met
the district engineer will notify the appli-
cant and explain the reason for delay.
9. Organization and Content of Draft
ElSt—t, General This section gives detailed
information for preparing draft EISs. When
the Corps is the lead agency, this draft i"Tf?
format and these procedures will be fol-
lowed. When the Corps is one of the joint
lead agencies, the joint lead agencies will
mutually decide which agency's format and
procedures will be followed.
b.Format-
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Appendix C
Dredged Material Permit/Project Review Manual
Part 325, App. B
the proposed action and shall briefly state
the beneficial/adverse impacts of the pro-
posed action.
(3) Table of Content*.
(4) Purpose and Need. See 40 CFR 1502.13.
If the scope of analysis for the NEPA docu-
ment (see paragraph 7b) covers only the
proposed specific activity requiring a De-
partment of the Army permit, then the un-
derlying purpose and need for that specific
activity should be stated. (For example.
"The purpose and need for the pipe is to
obtain cooling water from the river for the
electric generating plant.") If the scope of
•n.iygtn covers a more extensive project,
only part of which may require a DA
permit, then the underlying purpose and
need for the entire project should br.< stated.
(For example. "The purpose and need for
the electric generating plant is to provide
Increased supplies of electricity to the
(named) geographic area.") Normally, the
applicant should be encouraged to provide a
statement of his proposed activity's purpose
and need from his perspective (for example,
"to construct an electric generating plant").
However, whenever the NEPA document's
scope of analysis renders it appropriate, the
Corps also should consider and express that
activity's underlying purpose and need from
a public interest perspective (to use that
same example, "to meet the public's need
for electric energy"). Also, while generally
focusing on the applicant's statement, the
Corps, wfll in all cases, exercise independent
judgment in defining the purpose and need
for the project from both the applicant's
and the public's perspective.
(S) Alternative*, See 40 CFR 1502.14. The
Corps is neither an opponent nor a propo-
nent of the applicant's proposal: therefore.
the applicant's final proposal will be identi-
fied as the "applicant's preferred alterna-
tive" in the final EIS. Decision options
available to the district engineer, which em-
brace all of the applicant's alternatives, are
issue the permit, issue with modifications or
conditions or deny the permit.
(a) Only reasonable alternatives need be
considered in detail, as specified in 40 CFR
1502.14(a). Reasonable alternatives must be
those that are feasible and such feasibility
must focus on the accomplishment of the
underlying purpose and need (of the appli-
cant or the public) that would be satisfied
by the proposed Federal action (permit issu-
ance). The alternatives analysis should be
thorough enough to use for both the public
interest review and the 404(bXl) guidelines
(40 CFR Part 230) where applicable. Those
alternatives that are unavailable to the ap-
plicant, whether or not they require Federal
action (permits), should normally be includ-
ed in the analysis of the no-Federal-action
(denial) alternative. Such alternatives
should be evaluated only to the extent .nec-
essary to allow a complete and objective
33 CFR Ch. II (7-1-91 Edition)
evaluation of the public interest and a fully
informed decision regarding the permit ap-
plication.
(b) The "no-action" alternative is one
which results in no construction requiring a
Corps permit. It may be brought by (1) the
applicant electing to modify his proposal to
eliminate work under the jurisdiction of the
Corps or (2) by the denial of the permit.
District engineers, when evaluating this al-
ternative, should discuss, when appropriate.
• the consequences of other likely uses of a
project site, should the permit be denied.
(c) The EIS should discuss geographic al-
ternatives. e.g.. changes in location and
other site specific variables, and functional
alternatives, e^- project substitutes and
design modifications.
(d) The Corps shall not prepare a cost-
benefit analysis tor projects requiring a
Corps permit. 40 CFR 1502^3 states that
the weighing of the various alternatives
need not be displayed in a cost-benefit anal-
ysis and "• • • should not be when there
are important qualitative considerations."
The EIS should, however, indicate any cost
considerations that are likely to be relevant
to a decision.
(e) Mitigation is defined in 40 CFR
1508.20, and Federal action agencies are di-
rected in 40 CFR 1502.14 to include appro-
priate mitigation measures. Guidance on
the conditioning of permits to require miti-
gation is in 33 CFR 320.4CD and 325.4. The
nature and extent of mitigation conditions
are dependent on the results of the public
interest review in 33 CFR 320.4.
(6) Affected Environment See Ref. 40
CFR 1502.15.
(7) Environmental Consequence*. See Ref.
40 CFR 1502.16.
(8) List of Preparen. See Ref. 40 CFR
1502.17.
(9) Public. Involvement. This section
should list the dates and nature of all public
notices, scoping meetings and public hear-
ings and include a list of all parties notified.
(10) Appendices. See 40 CFR 1502.18. Ap-
pendices should be used to the maximum
extent practicable to minimize the length of
the main text of the EIS. Appendices nor-
mally should not be circulated with every
copy of the EIS, but appropriate appendices
should be provided routinely to parties with
special Interest and expertise in the particu-
lar subject.
(11) Index. The Index of an EIS. at the
end of the document, should be designed to
provide for easy reference to items discussed
in the main text of the EIS.
10. Notice of Intent The district engineer
shall follow the guidance in 33 CFR Part
230. Appendix C in preparing a notice of
intent to prepare a draft EIS for publication
in the FEDERAL RXCISTUL
C-39
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of the Army, DoD
Port 325, App. C
11. Public Hearing. If a public hearing is
to be held pursuant to 33 CPR Part 327 for
a permit application requiring an EIS. the
actions analyzed by the draft CTR should be
considered at the public hearing. The dis-
trict engineer should make the draft KI«
available to the public at least 15 days in ad-
vance of the hearing. If a hearing request is
received from another agency having juris-
diction as provided in 40 CFR 1506.6 Memoranda of Agreement. The po-
tential referring agency will then have 25
calendar days to refer the ease to CEQ
under 40 CFR Part 1504. Referrals will be
transmitted through division to CECW-RE
for further guidance with an information
copy to CECW-OR.
20. Review of Other Agencies' EISs. Dis-
trict engineers should provide comments di-
rectly to the requesting agency specifically
related to the Corps jurisdiction by law or
special expertise as defined In 40 CFR
1508.15 and 1508.26 and identified in Appen-
dix n of CEQ regulations (49 FR 49750. De-
cember 21.1984). If the district engineer de-
termines that another agency's draft EIS
which involves a Corps permit action Is in-
adequate with respect to the Corps permit
action, the district engineer should attempt
to resolve the differences concerning the
Corps permit action prior to the filing of
the final EIS by the other agency. If the
district engineer finds that the final EIS is
inadequate with respect to the Corps permit
action, the district engineer should incorpo-
rate the other agency's final EIS or a por-
tion thereof and prepare an appropriate and
adequate NEPA document to address the
Corps involvement with the proposed
action. See 33 CFR 230.21 for guidance. The
agency which prepared the original ETS
should be given the opportunity to provide
additional information to that contained in
the EIS in order for the Corps to have all
relevant information available for a sound
decision on the permit.
21. Monitoring. Monitoring compliance
with permit requirements should be carried
out In accordance with 33 CFR 230.15 and
with 33 CFR Part 329.
153 FR 3134. Feb. 3.1988]
APPENDIX C—PROCEDURES FOR THE
PROTECTION OF HISTORIC PROPERTIES
1. Definitions
2. General Policy
3. Initial Review
4. Public Notice
5. Investigations
6. Eligibility Determinations
7. Assessing Effects
8. Consultation
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Appendix C
Dredged Material Pennit/Project Review Manual
Part 325, App. C
9. ACHP Review and Comment
10. District Engineer Decision
11. Historic Properties Discovered During
Construction
12. Regional General Permits
13. Nationwide General Permits
14. Emergency Procedures
15. Criteria of Effect and Adverse Effect
1. Definitions
a. Designated historic property is a histor-
ic property listed in the National Register
of Historic Places (National Register) or
which has been determined eligible for list-
ing in the National Register pursuant to 36
CFR part 63. A historic property that, in
both the opinion of the SHPO and the dis-
trict engineer, appears to meet the criteria
for inclusion in the National Register will
be treated as a "designated historic proper-
ty."
b. Historic property is a property which
has historical importance to any person or
group^Tnis term includes the types of dis-
tricts, sites, buildings, structures or objects
eligible for inclusion, but not necessarily
listed, on the National Register.
c. Certified local government is a local gov-
ernment certified to accordance with section
lOl(cXl) of the NHPA (See 36 CFR part
61).
d. The term "criteria for inclusion to the
National Register" refers to the criteria
published by the Department of Interior at
36 CFR 60.4.
e. An "effect" on a "designated historic
property" occurs when the undertaking may
alter the characteristics of the property
that qualified the property for inclusion to
the National Register. Consideration of ef-
fects on "designated historic properties" in-
cludes indirect effects of the undertaking.
The criteria for effect and adverse effect are
described to Paragraph IS of this appendix.
f. The term "undertaking" as used to this
appendix means the work, structure or dis-
charge that requires a Department of the
Army permit pursuant to the Corps regula-
tions at 33 CFR 320-334.
g. Permit area.
(1) The term "permit area" as used to this
appendix means those areas comprising the
waters of the United States that wfll be di-
rectly affected-by the proposed work or
structures and uplands directly affected as a
result of authorizing the work or structures.
The following three tests must all be satis-
fied for an activity undertaken outside the
waters of the United States to be included
within the "permit area":
(i) Such activity would not occur but for
the authorization of the work or structures
within the waters of the United States;
(11) Such activity must be integrally relat-
ed to the work or structures to be author-
ized within waters of the United States. Or.
conversely, the work or structures to be au-
C-41
33 CFR Ch. II (7-1-91 Edition)
thorized must be essential to the complete-
ness of the overall project or program: and
(ill) Such activity must be directly associ-
ated (first order impact) with the work or
structures to be authorized.
(2) For example, consider an application
for a permit to construct a pier and dredge
an access channel so that an industry may
be established and operated on an upland
(i) Assume that the industry requires the
access channel and the pier and that with-
out such channel and pier, the project would
not be feasible. Clearly then, the industrial
site, even though upland, would be within
the "permit area." It would not be estab-
lished "but for" the access channel and pier:
it also is integrally related to the work and
structure to be authorized: and finally il is
directly associated with the work and struc-
ture to be authorized. Similarly, all three
tests are satisfied for the dredged material
disposal site and It too is to the "permit
area" even if located on uplands.
(II) Consider further that the industry, if
established, would cause local agencies to
extend water and sewer lines to service the
area of the industrial site. Assume that the
extension would not itself involve the
waters of the United States and is not solely
the result of the industrial facility. The ex-
tensions would not be within the "permit
area" because they would not be directly as-
sociated with the work or structure to be au-
thorized.
(til) No* consider that the industry, if es-
tablished, would require increased housing
for its employees, but that a private devel-
oper would develop the housing. Again, even
if the housing would not be developed but
for the authorized work and structure, the
housing would not be within the permit
area because it would not be directly associ-
ated with or integrally related to the work
or structure to be authorized.
(3) Consider a different example. This
time an industry will be established that re-
quires no access to the navigable waters for
its operation. The plans for the facility.
however, call for a recreational pier with an
access channel. The pier and channel will be
used for the company-owned yacht and em-
ployee recreation. In the example, the in-
dustrial site is not included within the
permit area. Only areas of dredging.
dredged material disposal, and pier con-
struction would be within the permit area.
(4) Lastly, consider a linear crossing of the
waters of the United States: for example, by
atransmission line, pipeline, or highway.
(1) Such projects almost always can be un-
dertaken without Corps authorization. If
they are designed to avoid affecting the
waters of the United States. Corps authori-
zation is sought because It is less expensive
or more convenient for the applicant to do
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D»pt. of the Army, DoD
Port 325, App. C
so than to avoid affecting the waters of the
United States. Thus the "but for" test is not
met by the entire project right-of-way. The
"same undertaking" and "integral relation-
ship" tests are met, but this is not sufficient
to make the whole right-of-way pan of the
permit area. Typically, however, some por-
tion of the right-of-way, approaching the
crossing, would not occur in its given config-
uration "but for" the authorized activity.
This portion of the right-of-way, whose lo-
cation is determined by the location of the
crossing, meets all three tests and hence is
part of the permit area.
(il) Accordingly, in the case of the linear
crossing, the permit area shall extend in
either direction from the crossing to that
point at which alternative alignments lead-
Ing to reasonable r'.cemative locations for
the crossing can be consider^ and evaluat-
ed. Such a point may often coincide with
the physical feature of the waterbody to be
crossed, for example, a bluff, the limit of
the flood plain, a vegetations! change, eta.
or with a~ jurisdictions! feature associated
with the waterbody, for example, a zoning
change, easement limit, etc.. although such
features should not be controlling in select-
ing the limits of the permit area.
2. Qeneral Policy
This appendix establishes the procedures
to be followed by.the U.S. Army Corps of
Engineers (Corps) to fulfill the require-
ments set forth In the National Historic
Preservation Act (NEPA). other applicable
historic preservation laws, and Presidential
directives as they relate to the regulatory
program of the Corps of Engineers (83 CPU
parts 320-334).
. a. The district engineer wfll take into ac-
count the effects. If any. of proposed under-
takings on historic properties both within
and beyond the waters of the U.S. Pursuant
to section ll(Kf) of the NHPA, the district
engineer, where the undertaking that is the
subject of a permit action may directly and
adversely affect any National Historic Land-
mark, shall, to the maximum extent possi-
ble, condition any issued permit as ™«y be
necessary to minimize harm to such land-
mark.
b. In addition- to the requirements of the
NHPA, all historic properties are subject to
consideration under the National Environ-
mental Policy Act, (33 CFR part 325. appen-
dix B). and the Corps' public interest review
requirements contained in 33 CFR 320.4.
Therefore, historic properties will be includ-
ed as a factor In the district engineer's deci-
sion on a permit application.
c. In processing a permit application, the
district engineer will generally accept for
Federal or Federally assisted projects the
Federal agency's or Federal lead agency's
compliance with the requirements of the
NHPA.
d. If a permit application requires the
preparation of an Environmental Impact
Statement (EIS) pursuant to the National
Environmental Policy Act. the draft EIS
will contain the information required by
paragraph »JL below. Furthermore, the
SHPO and the ACHP will be given the op-
portunity to participate in the scoping proc-
ess and to comment on the Draft and Final
EIS.
e. During pre-application consultations
with a prospective applicant the district en-
gineer will encourage the consideration of
historic properties at the earliest practical
time in the planning process.
f. This appendix is organized to follow the
Corps standard permit process and to indi-
cate how historic property considerations
are to be addressed during the processing
and evaluating of permit applications. The
procedures of this Appendix are not intend-
ed to diminish the full consideration of his-
toric properties in the Corps regulatory pro-
gram. Rather, this appendix Is intended to
provide for the maximum consideration of
historic properties within the time and ju-
risdictional constraints of the Corps regula-
tory program. The Corps wfll make every
effort to provide information on historic
properties and the effects of proposed un-
dertakings on them to the public by the
public notice within the time constraints re-
quired by the Clean Water Act. Within the
time constraints of applicable laws, execu-
tive orders, and regulations, the Corps wfll
provide the m^nmin^ coordination and
comment opportunities to interested parties
especially the SHPO and ACHP. The Corps
wfll discuss with and encourage the appli-
cant to avoid or minimize effects on historic
properties. In reaching its decisions on per-
mits, the Corps will adhere to the goals of
the NHPA and other applicable laws dealing
with historic properties.
3. Initial. Review
a. Upon receipt of a completed permit ap-
plication, the district engineer will consult
district files and records, the latest pub-
lished version(s) of the National Register.
lists of properties determined eligible, and
other appropriate sources of Information to
determine if there are any designated his-
toric properties which may be affected by
the proposed undertaking. The district engi-
neer will also consult with other appropri-
ate sources of information for knowledge of
undesignated historic properties which may
be affected by the proposed undertaking.
The district engineer will establish proce-
dures (e.g., telephone calls) to obtain sup-
plemental information from the SHPO and
other appropriate sources. Such procedures
shall be accomplished within the time limits •
specified in this appendix and 33 CFR part
325.
C-42
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Appendix C
Dredged Material Permit/Project Review Manual
Fort 325, App. C
b. In certain instances, the nature, scope.
and magnitude of the work, and/or struc-
tures to be permitted may be such that
there is little likelihood that a historic prop-
any exists or may be affected. Where the
district engineer determines that such a sit-
uation exists, he will include a statement to
this effect in the public notice. Three such
situations are:
(1) Areas that nave been extensively modi-
fied by previous work. In such areas, histor-
ic properties that may have at one time ex-
isted within the permit area may be pre-
sumed to have been lost unless specific in-
formation indicates the presence of such a
property (e.g.. a shipwreck).
(2) Areas which have been created in
modern times. Some recently created areas.
such as dredged material disposal islands.
have had no human habitation. In such
cases, it may be presumed that there is no
potential for the existence of historic prop-
erties unless specific information indicates
the presence of such a property.
(3) Certain types of work or structures
that are of such limited nature and scope
that there is little likelihood of impinging
upon a historic property even if such prop-
erties were to be present within the affected
c. If. when using the pre-application pro-
cedures of S3 CPR 325.1(b). the district en-
gineer believes that a designated historic
property may be affected, he will inform
the prospective applicant for consideration
during project planning of the potential ap-
plicability of the Secretary of the Interior's
Standards and Guidelines for Archeology
and Historic Preservation (48 FR 44716).
The district engineer will also inform the
prospective applicant that the Corps will
consider any effects on historic properties
in accordance with this appnedix.
d. At the earliest practical time the dis-
trict engineer will discuss with the applicant
measures or alternatives to avoid or mini-
mize effects on historic properties.
4. Public Notice.
a. Except as specified in subparagraph
4.&. the district engineer's current knowl-
edge of-the presence or absence of historic
properties and the effects of the undertak-
ing upon these properties wfll be included in
the public notice. The public notice will be
sent to the SHPO. the regional office of the
National Park Service (NFS), certified local
governments (see paragraph (l.c.) and
Indian tribes, and interested citizens. If
there are designated historic properties
which reasonably may be affected by the
undertaking or if there are undesignated
historic properties within the affected area
which the district engineer reasonably ex-
pects to be affected by the undertaking and
which he believes meet the criteria for in-
G43
33 CFR Ch. II (7.1-91 Edition)
elusion in the National Register, the public
notice will also be sent to the ACHP.
b. During permit evaluation for newly des-
ignated historic properties or undesignated
historic properties which reasonably may be
affected by the undertaking and which have
been newly identified through the public in-
terest review process, the district engineer
will immediately inform the applicant, the
SHPO. the appropriate certified local gov-
ernment and the ACHP of the district engi-
neer's current knowledge of the effects of
the undertaking upon these properties.
Commencing from the date of the district
engineer's letter, these entities will be given
30 days to submit their comments.
c. Locations! and sensitive information re-
lated to archeological sites is excluded from
the Freedom of Information Act (Ce. - -
304 of the NHPA and Section 9 of ARPA).
If the district engineer or the Secretary of
the Interior determine that the disclosure
of information to the public relating to the
location or character of sensitive historic re-
sources may create a substantial risk of
harm, theft, or destruction to such re-
sources or to the area or place where such
resources are located, then the district engi-
neer will not include such information in
the public notice nor otherwise make it
available to the public. Therefore, the dis-
trict engineer will furnish such information
to the ACHP and the SHPO by separate
notice.
5. Invettipatioiu
a. When initial review, addition submis-
sions by the applicant, or response to the
public notice indicates the existence of a po-
tentially eligible property, the district engi-
neer shall examine the pertinent evidence
to determine the need for further investiga-
tion. The evidence must set forth specific
reasons for the need to further investigate
within the permit area and may consist of:
(1) Specific information concerning prop-
erties which may be eligible for inclusion in
the National Register and which are known
to exist in the vicinity of the project; and
(2) Specific information concerning known
sensitive areas which are likely to yield re-
sources eligible for inclusion in the National
Register, particularly where such sensitive
area determinations are based upon data
collected from other, similar areas within
the general vicinity.
b. Where the scope and type of work pro-
posed by the applicant or the evidence pre-
sented leads the district engineer to con-
clude that the chance of disturbance by the
undertaking to any potentially eligible his-
toric property is too remote to justify fur*
ther investigation, he shall so advise the re-
porting party and the SHPO.
c. If the district engineer's review indi-
cates that an investigation for the presence
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of the Army, DoD
Part 325, App. C
of potentially eligible historic properties on
the upland locations of the permit area (see
paragraph Ijt.) is justified, the district engi-
neer will conduct or cause to be conducted
such an investigation. Additionally, if the
notification indicates that a potentially eli-
gible historic property may exist within
waters of the U.S., the district engineer will
conduct or cause to be conducted an investi-
gation to determine whether this property
may be eligible for inclusion in the National
Register. Comments or information of a
general nature will not be considered as suf-
ficient evidence to warrant an investigation.
d. In addition to any investigations con-
ducted in accordance with paragraph 6.a.
above, the district engineeer may conduct or
cause to be conducted additional investiga-
tions which the district engineer determines
are essential to reach the public interest de-
cision . As part of any site visit. Corps per-
sonnel wfll examine the permit area for the
presence of potentially eligible historic
properties. The Corps wfll notify the SHPO.
if any evidence is found which indicates the
presence of potentially eligible historic
properties.
e. As determined by the district engineer.
investigations may consist of any of the fol-
lowing: further consultations with the
EHPO. the State Archeologist. local govern-
ments. Indian tribes, local historical and ar-
cheological societies, university archeolo-
gists. and others with knowledge and exper-
tise in the identification of historical, arche-
ologieal. cultural and scientific resources;
field examinations: and archeological test-
ing. In most cases, the district engineer will
require, in accordance with 33 CPR 325.1(e>.
that the applicant conduct the investigation
at his expense and usually by third party
contract.
f. The Corps of Engineers' responsibilities
to seek eligibility determinations for poten-
tially eligible historic properties is limited
to resources located within waters of the
U.S. that are directly affected by the under-
taking. The Corps responsibilities to identi-
fy potentially eligible historic properties Is
limited to resources located within the
permit area that are directly affected by re-
lated upland activities. The Corps is not re-
sponsible for identifying or assessing poten-
tially eligible historic properties outside the
permit area, but will consider the effects of
undertakings on any known historic proper-
ties that may occur outside the permit area.
& Eligibility determtnatioru
a. For a historic property within waters of
the U.S. that will be directly affected by the
undertaking the district engineer will, for
the purposes of this Appendix and compli-
ance with the NHPA:
(1) Treat the historic property as a "desig-
nated historic property." if both the SHPO
and the district engineer agree that it is eli-
gible for inclusion in the National Register
or
(2) Treat the historic property as not eligi-
ble, if both the SHPO and the district engi-
neer agree that it is not eligible for inclu-
sion in the National Register, or
(3) Request a determination of eligibility
from the Keeper of the National Register in
accordance with applicable National Park
Service regulations and notify the appli-
cant, if the SHPO and the district engineer
disagree or the ACHP or the Secretary of
the Interior so request. If the Keeper of the
National Register determines that the re-
sources are not eligible for listing in the Na-
tional Register or fails to respond within 45
days of receipt of the request, the district
engineer may proceed to conclude his action
on the permit application.
b. For a historic property outside of
waters of the UJB. that will be directly af-
fected by the undertaking the district engi-
neer wfll. for the purposes of this appendix
and compliance with the NHPA:
(1) Treat the historic property as a "desig-
nated historic property.- If both the SHPO
and the district engineer agree that it is eli-
gible for inclusion In the National Register.
or
(2) Treat the historic property as not eligi-
ble. If both the SHPO and the district engi-
neer agree that it is not eligible for inclu-
sion in the National Register: or
(3) Treat the historic property as not eligi-
ble unless the Keeper of the National Regis-
ter determines it is eligible for or lists it on
the National Register. (See paragraph 6.C.
below.)
c. If the district engineer and the SHPO
do not agree pursuant to paragraph S.b.tl)
and the SHPO notifies the district engineer
that it is nominating a potentially eligible
historic property for the National Register
that may be affected by the undertaking.
the district engineer wfll wait a reasonable
period of time for that determination to be
made before concluding his action on the
permit. Such a reasonable period of time
would normally be 30 days for the SHPO to
nominate the historic property plus 45 days
for the Keeper of the National Register to
make such determination. The district engi-
neer will encourage the applicant to cooper-
ate with the SHPO in obtaining the infor-
mation necessary to nominate the historic
property.
7. Attesting Effect*
a. Applying the Criteria of Effect and Ad-
vene Effect. During the public notice com-
ment period or within 30 days after the de-
termination or discovery of a designated his-
tory property the district engineer will co-
ordinate with the SHPO and determine if
there is an effect and if so. assess the effect
(See Paragraph 18.)
C-44
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Appendix C
Dredged Material Permit/Project Review Manual
Port 325, App. C
b. No Effect If the SHPO concurs with
the district engineer's determination of no
effect or fails to respond within 15 days of
the district engineer's notice to the SHPO
of a no effect determination, then the dis-
trict engineer may proceed with the final
decision.
c. No Advene Effect If the district engi-
neer, based on his coordination with the
SHPO (see paragraph 7.a.), determines that
an effect is not adverse, the district engi-
neer will notify the ACHP and request the
comments of the ACHP. The district engi-
neer's notice will include a description of
both the project and the designated historic
property: both the district engineer's and
the SHPO's views, as well as any views of af-
fected local governments. Indian tribes. Fed-
eral agencies, and the public, on the no ad-
vene effect dete*«uuiation; and a descrip-
tion of the efforts to identify historic prop-
erties and solicit the views of those above.
The district engineer may conclude the
permit decision if the ACHP does not object
to the district engineer's determination or if
the district engineer accepts any conditions
requested by the ACHP for a no advene
effect determination, or the ACHP fails to
respond within 30 days of the district engi-
neer*s notice to the ACHP. If the ACHP ob-
jects or the district engineer does not accept
the conditions proposed by the ACHP. then
the effect shall be considered as advene.
d. Advene Effect If an advene effect on
designated historic properties is found, the
district engineer will notify the ACHP and
coordinate with the SHPO to seek ways to
avoid or reduce effects on designated histor-
ic properties. Either the district engineer or
the SHPO may request the ACHP to par-
ticipate. At its discretion, the ACHP may
participate without such a request. The dis-
trict engineer, the SHPO or the ACHP may
state that further coordination will not be
productive. The district engineer shall then
request the ACHP's comments in accord-
ance with paragraph 9.
& Consultation
At any time during permit processing, the
district engineer may consult with the in-
volved parties to discuss and consider possi-
ble alternatives or measures to avoid or min-
imize the adverse effects of a proposed ac-
tivity. The district engineer wfll terminate
any consultation immediately upon deter-
mining that further consultation is not pro-
ductive and will immediately notify the con-
sulting parties. If the consultation results in
a mutual agreement among the SHPO.
ACHP. applicant and the district engineer
regarding the treatment of designated his-
toric properties, then the district engineer
may formalize that agreement either'
through permit conditioning or by signing a
Memorandum of Agreement
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of En0in**rs, D.pt. of the Army, DoD
Pert 325, App. C
any comments of the ACHP and the SHPO.
and any views of other interested parties.
The district engineer will add permit condi-
tions to avoid or reduce effects on historic
properties which he determines are neces-
sary in accordance with 33 CFR 325.4. In
reaching his determination, the district en-
gineer will consider the Secretary of the In-
terior's Standards and Guidelines for Arche-
ology and Historic Preservation (48 PR,
44716).
b. If the district engineer concludes that
permitting the activity would result in the
irrevocable loss of important scientific, pre-
historic. historical, or archeological data.
the district engineer, in accordance with the
Archeological and Historic Preservation Act
of 1974. will advise the Secretary of the In-
terior (by notifying the National Park Serv-
ice (NFS)) of the extent to which the data
may be lost if the undertaking is permitted.
any plans to mitigate such loss that will be
Implemented, and the permit conditions
that will be Included to ensure that any re-
quired mitigation occurs.
1L Historic Properties Discovered Durint?
Construction
After the permit has been issued. If .the
district engineer finds or is notified that the
permit area contains a previously unknown
potentially eligible historic property which
he reasonably expects will be affected by
the undertaking, he «>»•» immediately
Inform the Department of the Interior De-
partmental Consulting Archeologist and the
regional office of the NFS of the current
knowledge of the potentially eligible histor-
ic property and the expected effects. If any.
of the undertaking on that property. The
district engineer will seek voluntary avoid-
ance of construction activities that could
affect the historic property pending a rec-
ommendation from the National Park Serv-
ice pursuant to the Archeological and Hio-
toric Preservation Act of 1974. fiased on the
circumstances of the discovery, equity to ail
parties, and considerations of the public in-
terest. the district engineer may modify.
pennlt ta mccordince
12. Regional General Permits
Potential impacts on historic properties
win be considered in development and eval-
uation of general permits. However, many
of the specific procedures contained in this
appendix are not normally applicable to
general permits. In developing general per-
mits. the district engineer will seek the
views of the SHPO and, the ACHP and
other organizations and/or Individuals with
expertise or Interest In historic properties.
Where designated historic properties are
reasonably likely to be affected, general per-
mits shall be conditioned to protect such
properties or to limit the applicability of
the permit coverage.
13. nationwide General Permit
a. The criteria at paragraph 15 of this Ap-
pendix will be used for determining compli-
ance with the nationwide permit condition
at 33 CFR 330.5(bX9> regarding the effect
on designated historic properties. When
making this determination the district engi-
neer may consult with the SHPO. the
ACHP or other interested parties.
b. If the district engineer is notified of a
potentially eligible historic property in ac-
cordance with nationwide permit regula-
•tions and conditions, he will immediately
notify the SHPO. If the district engineer be-
lieves that the potentially eligible historic
property meets the criteria for inclusion in
the National Register and that it may be af-
fected by the proposed undertaking then he
may suspend authorization of the nation-
wide permit until he provides the ACHP
and the SHPO the opportunity to comment
in accordance with the provisions of this
Appendix. Once these provisions have been
satisfied, the district engineer may notify
the general permittee that the activity is
authorized including any special activity
specific conditions identified or that an indi-
vidual permit is required.
14. Emergency Procedures
The procedures for processing permits in
emergency situations are described at 3S
CFR 325.2(eX4). In an emergency situation
the district engineer wOl make every reason-
able effort to receive comments from the
SHPO and the ACHP. when the proposed
undertaking can reasonably be expected to
affect a potentially eligible or designated
historic property and will comply with the
provisions of this Appendix to the extent
time and the emergency situation allows.
IS. Criteria of Effect and Adverse Effect
(a) An undertaking has an effect on a des-
ignated historic property when the under-
taking may alter characteristics of the prop-
erty that qualified the property for inclu-
sion in the National Register. For the pur-
pose of determining effect, alteration to fea-
tures of a property's location, setting, or use
may be relevant, and depending on a prop-
erty's Important characteristics, should be
considered.
(b) An undertaking is considered to have
an adverse effect when the effect on a desig-
nated historic property may diminish the
integrity of the property's location, design.
setting, materials, workmanship, feeling, or
association. Adverse effects on designated
historic properties include, but are not lim-
ited to:
C-46
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Appendix C
Dredged Material Permit/Project Review Manual
§326.1
(1) Physical destruction, damage, or alter-
ation of all or part of the property;
(2) Isolation of the property from or alter-
ation of the character of the property's set-
ting when that character contributes to the
property's qualification for the National
Register;
(3) Introduction of visual, audible, or at-
mospheric elements that are out of charac-
ter with the property or alter its setting;
(4) Neglect of a property resulting in its
deterioration or destruction; and •
(5) Transfer, lease, or sale of the property.
(c) Effects of an undertaking that would
otherwise be found to be adverse may be
considered as being not adverse for the pur-
pose of this appendix:
(1) When the designated historic property
is of value only for Its potential contribution
to archeological. historical, or architectural
research, and when such value can be sub-
stantially preserved through the conduct of
appropriate research, and such research is
conducted in accordance with applicable
professional standards and guidelines; '
(2) When the undertaking is limited to the
rehabilitation of buildings and structures
and is conducted in a manner that preserves
the historical and architectural value of af-
fected designated historic properties
through conformance with the'Secretary's
"Standards for Rehabilitation and Guide-
lines for Rehabilitating Historic Buildings".
or
(3) When the undertaking is limited to the
transfer, lease, or sale of a designated his-
toric property, and adequate restrictions or
conditions are Included to ensure preserva-
tion of the property's important historic
features.
[55 FR 27003. June 29.19901
PART 326—ENFORCEMENT
Sec.
326.1 Purpose.
326.2 Policy.
326.3 Unauthorized activities.
326.4 Supervision of authorized activities.
326.5 Legal action.
326.6 Class I Administrative penalties.
AuTHORrnr.-33 U.S.C. 401 et teg.; 33 U.S.C.
1344; 33 U.S.C. 1413; 33 U.S.C. 2101.
SOURCE 51 FR 41246. Nov. 13.1986. unless
otherwise noted.
S 326.1 Purpose.
This Part prescribes enforcement
policies (§ 326.2) and procedures appli-
cable to activities performed without
required Department of the Army per-
mits (J 326.3) and to activities not in
compliance with the terms and condi-
C-47
33 CFR Ch. II (7.1-91 Edition)
tions of issued Department of the
Army permits (§ 326.4). Procedures for
initiating legal actions are prescribed
in (326.5. Nothing contained in this
Part shall establish a non-discretion-
ary duty on the part of district engi-
neers nor shall deviation from these
procedures give rise to a private right
of action against a district engineer.
IS2&2 Policy.
Enforcement, as part of the overall
regulatory program of the Corps, is
based on a policy of regulating the
waters of the United States by discour-
aging activities that have not been
properly authorized and by requiring
corrective measures, where appropri-
ate, to ensure those waters are not
misused and to maintain the integrity
of the program. There are several
methods discussed in the remainder of
this part which can be used either
singly or in combination to implement
this policy, while making the most ef-
fective use of the enforcement re-
sources available. As EPA has inde-
pendent enforcement authority under
the Clean Water Act for unauthorized.
discharges, the district engineer
should normally coordinate with EPA
to determine the most effective and ef-
ficient manner by which resolution of
a section 404 violation can be achieved.
9326J Unauthorized activities.
(a) Surveillance. To detect unau-
thorized activities requiring permits.
district engineers should make the
best use of all available resources.
Corps employees; members of the
public; and representatives of state,
local, and other Federal agencies
should be encouraged to report sus-
pected violations. Additionally, district
engineers should consider developing
joint surveillance procedures with
Federal, state, or local, agencies having
similar regulatory responsibilities, spe-
cial expertise, or interest.
(b) Initial investigation. District en-
gineers should take steps to investi-
gate suspected violations in a timely
manner. The scheduling of investiga-
tions will reflect the nature and loca-
tion of the suspected violations, the
anticipated impacts, and the most ef-
fective use of inspection resources
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D*pt. of th« Army, DeD
§326.3
available to the district engineer.
These investigations should confirm
whether a violation exists, and if so,
will identify the extent of the viola-
tion and the parties responsible.
(c) Formal notifications to parties
responsible for violations. Once the
district engineer has determined that
a violation exists, he should take ap-
propriate steps to notify the responsi-
ble parties.
(1) If the violation involves a project
that is not complete, the district engi-
neer's notification should be in the
form of a cease and desist order pro-
hibiting any further work pending res-
olution of the violation in accordance
with the procedures contained in this
part. See paragraph (cK4) of this sec-
tion for exception to this procedure.
(2) If the violation involves a com-
pleted project, a cease and desist order
should not be necessary. However, the
district engineer should still notify the
responsible parties of the violation.
(3) All notifications, pursuant to
paragraphs (c) (1) and (2) of this sec-
tion, should identify the relevant stat-
utory authorities, indicate potential
enforcement consequences, and direct
the responsible parties to submit any
additional information that the dis-
trict engineer may need at that time
to determine what course of action he
should pursue in resolving the viola-
tion: further information may be re-
quested, as needed, in the future.
(4) In situations which would, if a
violation were not involved, qualify for
emergency procedures pursuant to 33
CFR Part 325.2(e)(4), the district engi-
neer may decide it would not be appro-
priate to direct .that the unauthorized
work be stopped. Therefore, in such
situations, the district engineer may.
at his discretion, allow the work to .
continue, subject to appropriate limi-
tations and conditions as he may pre-
scribe, while the violation is being re-
solved in accordance with the proce-
dures contained in this part.
(5) When an unauthorized activity
requiring a permit has been undertak-
en by American Indians (including
Alaskan natives. Eskimos, and Aleuts.
but not Including Native Hawaiians)
on reservation lands or In pursuit of
specific treaty rights, the district engi-
neer should use appropriate means to
coordinate proposed directives and
orders with the Assistant Chief Coun-
sel for Indian Affairs (DAEN-CCI).
(6) When an unauthorized activity
requiring a permit has been undertak-
en by an official acting on behalf of a
foreign government, the district engi-
neer should use appropriate means to
coordinate proposed directives and
orders with the Office. Chief of Engi-
neers. ATTN: DAEN-CCK.
(d) Initial corrective measures. (1)
The district engineer should, in appro-
priate cases, depending upon the
nature of the impacts associated with
the unauthorized, completed work, s«-
lidt the views of the Environmental
Protection Agency; the U.S. Fish and
WOdlife Service: the National Marine
Fisheries Service, and other Federal.
state, and local agencies to facilitate
his decision on what initial corrective
measures are required. If the district
engineer determines as a result of his
investigation, coordination, and pre-
liminary evaluation that initial correc-
tive measures are required, he should
issue an appropriate order to the par-
ties responsible for the violation. In
determining what initial corrective
measures are required, the district en-
gineer should consider whether seri-
ous jeopardy to life, property, or im-
portant public resources (see 33 CFR
320.4) may be reasonably anticipated
to occur during the period required for
the ultimate resolution of the viola-
tion. In his order, the district engineer
will specify the initial corrective meas-
ures required and the time limits for
completing this work. In unusual cases
where initial corrective measures sub-
stantially eliminate all current and
future detrimental impacts resulting
from the unauthorized work, further
enforcement actions should normally
be unnecessary. For all other cases.
the district engineer's order should
normally specify that compliance with
the order will not foreclose the Gov-
ernment's options to initiate appropri-
ate legal action or to later require the
submission of a permit application.
(2) An order requiring initial correc-
tive measures that resolve the viola-
tion may also be issued by the district
engineer In situations where the ac-
ceptance or processing of an af ter-the-
fact permit application is prohibited
C-48
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Appendix C
Dredged Material PermitfProject Review Manual
§326.4
or considered not appropriate pursu-
ant to 5326.3(e)(l) (ill) through (iv)
below. However, such orders will be
issued only when the district engineer
has reached an independent determi-
nation that such measures are neces-
sary and appropriate.
(3) It will not be necessary to issue a
Corps permit in connection with initial
corrective measures undertaken at the
direction of the district engineer.
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D»pt. of th* Army, DoD
§326.5
in appropriate cases, require that
copies of ENG Form 4336 be posted
conspicuously at the sites of author-
ized activities and will make available
to all interested persons information
on the terms and conditions of issued
permits. The TLS. Coast Guard will in-
spect permitted ocean dumping activi-
ties pursuant to section 107(c) of the
Marine Protection. Research and
Sanctuaries Act of 1972. as amended.
(b) Inspection limitations. Section
S26.4 does not establish a non-discre-
tionary duty to inspect permitted ac-
tivities for safety, sound engineering
practices, or interference with other
permitted or unpe: - <*ted structures
or uses in the area. Further, the regu-
lations implementing the Corps regu-
latory program do not establish a non-
discretionary duty to inspect permit-
ted activities for any other purpose.
(c) Inspection expenses. The ex-
penses incurred in connection with the
inspection of permitted activities will
normally be paid by the Federal Gov-
ernment unless daily supervision or
other unusual expenses are involved.
In such unusual cases, the district en-
gineer may condition permits to re-
quire permittees to pay inspection ex-
penses pursuant to the authority con-
tained in section 9701 of Pub L. 97-258
(33 U.S.C. 9701). The collection and
disposition of inspection expense
funds obtained from applicants will be
administered in accordance with the
relevant Corps regulations governing
such funds.
(d) Non-compliance. If a district en-
gineer determines that a permittee
has violated the terms or conditions of
the permit and that the violation is
sufficiently serious to require an en-
forcement action, then he should.
unless at his discretion he deems it in-
appropriate:- (1) First contact the per-
mittee;
(2) Request corrected plans reflect-
ing actual work, if needed: and
(3) Attempt to resolve the violation.
Resolution of the violation may take
the form of the permitted project
being voluntarily brought into compli-
ance or of a permit modification (33
CFR 325.7(b)). If a mutually agreeable
solution cannot be reached, a written
order requiring compliance should
normally be issued and delivered by
personal service. Issuance of an order
is not. however, a prerequisite to legal
action. If an order is issued, it will
specify a time period of not more than
30 days for bringing the permitted
project into compliance, and a copy
will be sent to the appropriate state
official pursuant to section 404(s)(2) of
the Clean Water Act. If the permittee
fails to comply with the order within
the specified period of time, the dis-
trict engineer may consider using the
suspension/revocation procedures in
33 CFR 325.7(c) and/or he may recom-
mend legal action in accordance with
1326.S.
I32&5 Legal action.
(a) General For cases the district
engineer determines to be appropriate.
he will recommend criminal or civil ac-
tions to obtain penalties for violations,
compliance with the orders and direc-
tives he has issued pursuant to
11326.3 and 326.4, or other relief as
appropriate. Appropriate cases for
criminal or civil action include, but are
not limited to, violations which, in the
district engineer's opinion, are willful.
repeated, flagrant, or of substantial
impact.
(b) Preparation of case. If the dis-
trict engineer determines that legal
action is appropriate, he will prepare a
litigation report or such other docu-
mentation that he and the local UJ5.
Attorney have mutually agreed to.
which contains an analysis of the in-
formation obtained during his investi-
gation of the violation or during the
processing of a permit application and
a recommendation of appropriate legal
action. The litigation report or alter-
native documentation will also recom-
mend what, if any. restoration or miti-
gative measures are required and will
provide the rationale for any such rec-
ommendation.
(c) Referral to the local U.S. Attor-
ney. Except as provided in paragraph
(d) of this section, district engineers
are authorized to refer cases directly
to the U.S. Attorney. Because of the
unique legal system in the Trust Terri-
tories, all cases over which the Depart-
ment of Justice has no authority will
be referred to the Attorney General
for the trust Territories. Information
C-50
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Appendix C
Dredged Material Permit/Project Review Manual
§ 326.6
copies of all letters of referral shall .be
forwarded to the appropriate division
counsel, the Office. Chief of Engi-
neers. ATTN: DAEN-CCK, the Office
of the Assistant Secretary of the Army
(Civil Works), and the Chief of the
Environmental Defense Section. Lands
and Natural Resources Division. U.S.
Department of Justice.
(d) Referral to the Office, Chief of
Engineers. District engineers will for-
ward litigation reports with recom-
mendations through division off ices to
the Office. Chief of Engineers, ATTN:
DAEN-CCK. for all cases that qualify
under the following criteria:
(1) Significant precedential or con-
troversial question ~I law or fact;
(2) Requests for elevation to the
Washington level by the Department
of Justice;
(3) Violations of section 9 of the
Rivers and Harbors Act of 1899;
(4) Violations of section 103 the
Marine Protection. Research. and
Sanctuaries Act of 1972;
(5) All cases involving violations by
American Indians (original of litiga-
tion report to DAEN-CCI with copy to
DAEN-CCK) on reservation lands or
in pursuit of specific treaty rights;
(6) All cases involving violations by
officials acting on behalf of foreign
governments; and
(7) Cases requiring action pursu-jnt
to paragraph (e) of this section.
(e) Legal option not available. In
cases where the local U.S. Attorney
declines to take legal action, it would
be appropriate for the district engi-
neer to close the enforcement case
record unless he believes that the case
warrants special attention. In that sit-
uation, he is encouraged to forward a
litigation reporttp the Office. Chief of
Engineers. ATTN: DAEN-CCK, for
direct coordination through the Office
of the Assistant Secretary of the Army
(Civil Works) with the Department of
Justice. Further, the case record
should not be closed if the district en-
gineer anticipates that further admin-
istrative enforcement actions, taken in
accordance with the procedures pre-
scribed in this part, will identify reme-
dial measures which, if not complied
with by the parties responsible for the
violation, will result in appropriate
legal action at a later date.
33 CFR Ch. II (7-1-91 Edition)
fi 326.6 Claw I Administrative penalties.
(a) Introduction. (1) This section
sets forth procedures for initiation
and administration of Class I
trative penalty orders under section
309(g) of the Clean Water Act, and
section 205 of the National Fishing
TSn>»ftTi earn ant Act. Section
309(g)(2)(A) specifies that Class I civil
penalties may not exceed $10,000 per
violation, except that the maximum
amount of any Class' I civil penalty
shall not exceed $25,000. The National
Fishing Enhancement Act. section
205(e). provides that penalties for vio-
lations of permits issued in accordance
with that Act shall not exceed $10.000
for each violation.
(2) These procedures supplement
the existing enforcement procedures
at ii 326.1 through 326.5. However, as
a matter of Corps enforcement discre-
tion once the Corps decides to proceed
with an administrative penalty under
these procedures it shall not subse-
quently pursue judicial action pursu-
ant to i 326.5. Therefore, an adminls-
trative penalty should not be pursued
if a subsequent judicial action for civil
penalties is desired. An administrative
civil penalty may be pursued in con-
junction with a compliance order; re-
quest for restoration and/or request
for mitigation issued under f 326.4.
(3) Definitions. For the purposes of
this section of the regulation:
(i) "Corps" means the Secretary of
the Army, acting through the UJ5.
Army Corps of Engineers, with respect
to the matters covered by this regula-
tion.
(ii) "Interested person outside the
Corps" includes the permittee, any
person who filed written comments on
the proposed penalty order, and any
other person not employed by the
Corps with an interest in the subject
of proposed penalty order, and any at-
torney of record for those persons.
(Ill) "Interested Corps staff" means
those Corps employees, whether tem-
porary or permanent, who may investi-
gate, litigate, or present evidence, ar-
guments. or the position of the Corps
in the hearing or who participated in
the preparation, investigation or delib-
erations concerning the proposed pen-
alty order, including any employee.
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, Dapt. of th* Army, DoD
§326.6
contractor, or consultant who may be
called as a witness.
(Iv) "Permittee" means the person to
whom the Corps issued a permit under
section 404 of the Clean Water Act, Cor
section 10 of the Rivers and Harbors
Act for an Artificial Reef) the condi-
tions and limitations of which permit
have allegedly been violated.
"Presiding Officer" means a
member of Corps Counsel staff or any
other qualified person designated by
the District Engineer (DE). to hold a
hearing on a proposed administrative
tivn penalty order (hereinafter re-
ferred to as "proposed order") in ac-
cordance with the rules set forth in
this regulation and to make such rec-
ommendations to the DE as prescribed
in this regulation.
Initiation of action. CD If the
DE or a delegates of the DE finds that
a recipient of a Department of the
Army permit (hereinafter referred to
as "the permittee") has violated any
permit condition or limitation con-
tained in that permit, the DE is au-
thorized to prepare and process a pro-
posed order in accordance with these
procedures. The proposed order shall
specify the amount of the penalty
which the permittee may be assessed
and shall describe with reasonable
specificity the nature of the violation.
(2) The permittee will be provided
actual notice, in writing, of the DE's
proposal to issue an administrative
civil penalty and will be advised of the
right to request a hearing and to
present evidence on the alleged viola-
tion. Notice to the permittee will be
provided by certified mail, return re-
ceipt requested, or other notice, at the
discretion of the DE when he deter-
mines Justice so requires. This notice
will be accompanied by a copy of the
proposed order, and will include the
following information:
(i) A description of the alleged viola-
tion and copies of the applicable law
and regulations;
(ii) An explanation of the authority
to initiate the proceeding;
(iii) An explanation, in general
terms, of the procedure for assessing
civil penalties, including opportunity
for public participation; '
(iv) A statement of the amount of
the penalty that is proposed and a
statement of the **»**<"iiiTn amount of
the penalty which the DE is author-
ized to assess lor the violations C-
legcd;
(v) A statement that the permittee
may within 30 calendar days of receipt
of the notice provided under this sub-
paragraph, request a hearing prior to
issuance of any final order. Further.
that the permittee must request a
hearing within 30 calendar days of re-
ceipt of the notice provided under this
subparagraph in order to be entitled
to receive such a hearing;
(vi) The name and address of the
person to whom the permittee must
send a request for hearing;
(vii) Notification that the DE may
issue the final order on or after 30 cal-
endar days following receipt of the
notice provided under these rules, if
the permittee does not request a hear-
ing; and
(viii) An explanation that any final
order issued under this section shall
become effective 30 calendar days fol-
lowing its issuance unless a petition to
set aside the order and to hold a hear-
ing is filed by a person who comment-
ed on the proposed order and such pe-
tition is granted or an appeal is taken
under section 309(gX8) of the Clean
Water Act.
(3) At the same time that actual
notice is provided to the permittee,
the DE shall give public notice of the
proposed order, and provide reasona-
ble opportunity for public comment on
the proposed order, prior to issuing a
final order assessing an administrative
civil penalty. Procedures for giving
public notice and providing the oppor-
tunity for public comment are con-
tained in § 326.6(c).
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Appendix C
Dredged Material Permit/Project Review Manual
§326.6
(4) At the same time that actual
notice is provided to the permittee.
the DE shall provide actual notice, in
writing, to the appropriate state
agency for the state in which the vio-
lation occurred. Procedures for provid-
ing actual notice to and consulting
with the appropriate state agency are
contained in § 326.6(d).
(c) Public notice and comment. (1)
At the same time the permittee and
the appropriate state agency are pro-
vided actual notice, the DE shall pro-
vide public notice of and a reasonable
opportunity to comment on the DE's
proposal to *ssue an administrative
civil penalty against u»w permittee.
(2) A 30 day public comment period
shall be provided. Any person may
submit written comments on the pro-
posed administrative penalty order.
The DE shall include all written com-
ments in an administrative record re-
lating to the proposed order. Any
person who comments on a proposed
order shall be given notice of any
hearing held on the proposed order.
Such persons shall have a reasonable
opportunity to be heard and to
present evidence in such hearings.
(3) If no hearing is requested by the
permittee, any person who has submit-
ted comments on the proposed order
shall be given notice by the DE of any
final order issued, and will be given 30
calendar days in which to petition the
DE to set aside the order and to pro-
vide a hearing on the penalty. The DE
shall set aside the order and provide a
hearing in accordance with these rules
if the evidence presented by the com-
menter in support of the commenter's
petition for a hearing is material and
was not considered when the order
was issued. If the DE denies a hearing.
the DE shall provide notice to the
commenter filing the petition for the
hearing, together with the reasons for
the denial. Notice of the denial and
the reasons for the denial shall be
published in the FEDERAL REGISTER by
theDE.
(4) The DE shall give public notice
by mailing a copy of the information
listed in paragraph (cK5), of this sec-
tion to:
. (i) Any person who requests notice;
33 CFR Ch. II (7-1-91 Edition)
(ii) Other persons on a mailing list
developed to include some or all of the
following sources:
(A) Persons who request in writing
to be on the list;
(B) Persons on "area lists" developed
from lists of participants in past simi-
lar proceedings in that area, including
hearings or other actions related to
section 404 permit issuance as required
by { 325.3(d)(l). The DE may update
the mailing list from time to time by
requesting written indication of con-
tinued interest from those listed. The
DE may delete from the list the name
of any person who fails to respond to
such a request.
(5) All public notices under this sub-
part shall contain at a minimum the
information provided to the permittee
as described in i 326.6 and:
(i) A statement of the opportunity to
submit written comments on the pro-
posed order and the deadline for sub-
mission of such comments;
(ii) Any procedures through which
the public may comment on or partici-
pate in proceedings to reach a final de-
cision on the order;
(ill) The location of the administra-
tive record referenced in i 326.6(e), the
times at which the administrative
record will be available for public in-
spection, and a statement that all in-
formation submitted by the permittee
and persons commenting on the pro-
posed order is available as part of the
administrative record, subject to provi-
sions of law restricting the public dis?
closure of confidential information.
(d) State consultation. (1) At the
same time that the permittee is pro-
vided actual notice, the DE shall send
the appropriate state agency written
notice of proposal to issue an adminis-
trative civil penalty order. This notice
will include the same information re-
quired pursuant to f 326.6(c)(5).
(2) For the purposes of this regula-
tion, the appropriate State agency will
be the agency administering the 401
certification program, unless another
state agency is agreed to by the Dis-
trict and the respective state through
formal/informal agreement with the
state.
(3) The appropriate state agency will
be provided the same opportunity to
comment on the proposed order and
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Appendix C
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of th« Array, DoD
§326.6
participate in any hearing that is pro-
vided pursuant to § 326.6(c).
Opportunity for hearing. (1) The
permittee may request a hearing and
may provide written comments on the
proposed administrative penalty order
at any time within 30 calendar days
after receipt of the notice set forth in
§326.6(b)(2>. The permittee must re-
quest the hearing in writing, specify-
ing in summary form the factual and
legal issues which are in dispute and
the specific factual and legal grounds
for the permittee's defense.
(2) The permittee waives the right to
a hearing to present evidence on the
alleged violation or violations if the
permittee does not submit the request
for the hearing to the official desig-
nated in the notice of the proposed
order within 30 calendar days of re-
ceipt of the notice. The DE shall de-
termine the date of receipt of notice
by permittee's signed and dated return
receipt or such other evidence that
constitutes.proof of actual notice on a
certain date.
(3) The DE shall promptly schedule
requested hearings and provide rea-
sonable notice of the hearing schedule
to all participants, except that no
hearing shall be scheduled prior to the
end of the thirty day public comment
period provided in 5326.6
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Appendix C
Dredged Material Permit/Project Review Manual
§326.6
ty order under S 326.6(c). This notice
shall specify a reasonable time prior to
the hearing within which the com-
menter may request an opportunity to
be heard and to present oral evidence
or to make comments in writing in any
such hearing. The notice shall require
that any such request specify the facts
or issues which the commenter wishes
to address. Any commenter who files
comments pursuant to |326.6(cX2>
shall have a right to be heard and to
present evidence at the hearing in con-
f ormance with these procedures.
. (3) The DE shall select a member of
the Corps counsel staff or other quali-
fied person to serve as Presiding Offi-
cer of the hearing. The Presiding Of fi-
cer shall exercise no other responsibil-
ity, direct or supervisory, for the inves-
tigation or prosecution of any case
before him. The Presiding Officer
shall conduct hearings as specified by
these rules and make a recommended
decision to the DE.
(4) The Presiding Officer shall con-
sider each case on the basis of the evi-
dence presented, and must have no
prior connection with the case. The
Presiding Officer is solely responsible
for the recommended decision in each
case.
(5) Ex Porte Communications, (i) No
interested person outside the Corps or
member of the interested Corps staff
shall make, or knowingly cause to be
made, any ex parte communication on
the merits of the proceeding.
(ii) The Presiding Officer shall not
make, or knowingly cause to be made.
any ex parte communication on the
proceeding to any interested person
outside the Corps or to any member of
the interested Corps staff.
(ill) The DE may replace the Presid-
ing Officer in any proceeding in which
it is demonstrated to the DE's satisfac-
tion that the Presiding Officer has en-
gaged in prohibited ex parte communi-
cations to the prejudice of any partici-
pant.
(iv) Whenever an ex parte communi-
cation in violation of this section is re-
ceived by the Presiding Officer or
made known to the Presiding Officer.
the Presiding Officer shall immediate-
ly notify all participants in the pro-
ceeding of the circumstances and sub-
stance of the communication and may
33 CFR Ch. II (7-1.91 Edition)
require the person who made the com-
munication or caused it to be made, or
the party whose representative made
the communication or caused it to be
made, to the extent consistent with
justice and the policies of the Clean
Water Act, to show cause why that
person or party's claim or interest in
the proceedings should not be dis-
missed, denied, disregarded, or other-
wise adversely affected on account of
such violation.
(v) The prohibitions of this para-
graph apply upon designation of the
Presiding Officer and terminate on
the date of final action or the final
order.
(i) Hearing Procedures, (1) The Pre-
siding Officer shall conduct a fair and
impartial proceeding in which the par-
ticipants are given a reasonable oppor-
tunity to present evidence.
(2) The Presiding Officer may sub-
poena witnesses and issue subpoenas
for documents pursuant to the provi-
sions of the Clean Water Act.
(3) The Presiding Officer shall pro-
vide interested parties a reasonable op-
portunity to be heard and to present
evidence. Interested parties include
the permittee, any person who filed a
request to participate under 33 CFR
326.6(c), and any other person attend-
ing the hearing. The Presiding Officer
may establish reasonable time limits
for oral testimony.
(4) The permittee may not challenge
the permit condition or limitation
which is the subject matter of the ad-
ministrative penalty order.
(5) Prior to the commencement of
the hearing, the DE shall provide to
the Presiding Officer the complete ad-
ministrative record as of that date.
During the hearing, the DE, or an au-
thorized representative of the DE may
summarize the basis for the proposed
administrative order. Thereafter, the
administrative record shall be admit-
ted into evidence and the Presiding
Officer shall maintain the administra-
tive record of the proceedings and
shall include in that record all docu-
mentary evidence, written statements.
correspondence, the record of hearing.
and any other relevant matter.
(6) The Presiding Officer shall cause
a tape recording, written transcript or
other permanent, verbatim record of
C-55
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Appendix C
Dredged Material Permit/Project Review Manual
Corps pf Engineers, D*pt. of the Army, DoD
§326.6
the hearing to be made, which shall be
included in the administrative record,
and shall, upon written request, be
made available, for inspection or copy-
ing, to the permittee or any person.
subject to provisions of law restricting
the public disclosure of confidential
information. Any person Tpafr<"g a re-
quest may be required to pay reasona-
ble charges for copies of the admlnis-
trative record or portions thereof.
(7) In receiving evidence, the Presid-
ing Officer is not bound by strict rules
of evidence. The Presiding Officer
may determine the weight to be ac-.
corded the evidence.
(8) The permit*** has the right to
examine, and to re-^^ad to the admin
istrative record. The permittee may
offer into evidence, in written form or
through oral testimony, a response to
the administrative record including.
any facts, statements, explanations,
documents, testimony, or other excul-
patory items which bear on any appro-
priate issues. The Presiding Officer
may question the permittee and re-
quire the authentication of any writ-
ten exhibit or statement. The Presid-
ing Officer may exclude any repetitive
or irrelevant matter.
(9) At the close of the permittee's
presentation of evidence, the Presiding
Officer should allow the introduction
pf rebuttal evidence. The Presidio?
Officer may allow the permittee to re-
spond to any such rebuttal evidence
submitted and to cross-examine any
witness.
(10) The Presiding Officer may take
official notice of matters that are not
reasonably in dispute and are com-
monly known in the community or are
ascertainable from readily available
sources of known accuracy. Prior to
taking official notice of a matter, the
Presiding Officer shall give the Corps
and the permittee an opportunity to
show why such notice should not be
taken. In any case in which official
notice is taken, the Presiding Officer
shall place a written statement of the
matters as to which such notice was
taken in the record, including the
basis for such notice and a statement
that the Corps or permittee consented
to such notice being taken or a sum-
mary of the objections of the Corps or
the permittee.
C-56
(11) After all evidence has been pre-
sented, any participant may present
argument on any relevant issue, sub-
ject to reasonable time limitations set
at the discretion of the Presiding Offi-
cer.
(12) The hearing record shall remain
open for a period of 10 business days
from the date of the hearing so that
the permittee or any person who has
submitted comments on the proposed
order may examine and submit re-
sponses for the record.
(13) At the close of this 10 business
day period, the Presiding Officer may
allow the introduction of rebuttal evi-
dence. The Presiding Officer may hold
the record open for an additional 10
business days to allow the presenta-
tion of such rebuttal evidence.
(j) The decision. (1) Within a reason-
able time following the close of the
hearing and receipt of any statements
following the hearing and after con-
sultation with the state pursuant to
1326.6(d). the Presiding Officer shall
forward a recommended decision ac-
companied by a written statement of
reasons to the BE. The decision shall
recommend that the DE withdraw.
issue, or modify and issue the pro-
posed order as a final order. The rec-
ommended decision shall be based on a
preponderance of the evidence in the
administrative record. If the Presiding
Officer finds that there is not a pre-
ponderance of evidence in the record
to support the penalty or the amount
of the penalty in a proposed order, the
Presiding Officer may recommend
that the order be withdrawn or modi-
fied and then issued on terms that are
supported by a preponderance of evi-
dence on the record. The Presiding Of-
ficer also shall make the complete ad-
ministrative record available to the
DE for review.
(2) The Presiding Officer's recom-
mended decision to the DE shall
become part of the administrative
record and shall be made available to
the parties to the proceeding at the
time the DE's decision is released pur-
suant to 5 326.6(J)C5). The Presiding
Officer's recommended decision shall
not become part of the administrative.
record until the DE's final decision is
issued, and shall not be made available
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Appendix C
Dredged Material Permit/Project Review Manual
Port 327
to the permittee or public prior to that
time.
(3) The rules applicable to Presiding
Officers under S 326.6(hX5) regarding
ex parte communications are also ap-
plicable to the DE and to any person
who advises the DE on the decision or
the order, except that communications
between the DE and the Presiding Of-
ficer do not constitute ex parte com-
munications, nor do <^>Tnm\irHcnt.«*n
withdraw, issue, or modify and issue
the proposed order as a final order.
The DE's decision shall be based on a
preponderance of the evidence in the
administrative record, shall consider
the penalty factors set out in section
309(gX3> of the CWA. shall be in writ-
ing, shall include a clear and concise
statement of reasons for the decision.
and shall include any final order as-
sessing a penalty. The DE's decision,
once Issued, shall constitute final.
Corps action for purposes of judicial
review.
(6) The DE shall issue the final
order by sending the order, or written
notice of its withdrawal, to the permit-
tee by certified mail. Issuance of the
order under this subparagraph consti-
tutes final Corps action for purposes
of judicial review. -
(7) The DE shall provide written
notice of the issuance, modification
and issuance, or withdrawal of the
proposed order to every person who
submitted written comments on the
proposed order.
(8) The notice shall include a state-
ment of the right to judicial review
and of the procedures and deadlines
for obtaining judicial review. The
notice shall also note the right of a
commenter to petition for a hearing
.pursuant to 33 CFR 326.6(cX3) if no
hearing was previously held.
C-57
33 CFR Ch. II (7.L91 Edition)
(k) Effective date of order. (1) Any
final order issued under this subpart
shall become effective 30 calendar
days following its issuance unless an
appeal is taken pursuant to section
309(g)(8) of the Clean Water Act. or in
the case where no hearing was held
prior to the final order, and a petition
for hearing is filed by a prior com-
menter.
(2) If a petition for hearing is re-
ceived within 30 days-after the final
order is issued, the DE shall:
(i) Review the evidence presented by
the petitioner.
(ii) If the evidence is material end
was not considered in the issuance of
the order, the DE shall immediately
set aside the final order and schedule
a hearing. In that case, a hearing will
be held, a new recommendation will be
made by the Presiding Officer to the
DE and a new final decision issued by
the DEL
(ill) If the DE denies a hearing
under this subparagraph, the DE shall
provide to the petitioner, and publish
in the FEDERAL REGISTER, notice of.
and the reasons for. such denial.
(1) Judicial review. (I) Any permit-
tee against whom a final order assess*
ing a civil penalty under these regula-
tions or any person who provided writ-
ten comments on a proposed order
may obtain judicial review of the final
order.
(2) In order to obtain judicial review.
the permittee or commenter must file
a notice of appeal in the United States
District Court for either the District
of Columbia, or the district in which
the violation was alleged to have oc-
curred, within 30 calendar days after
the date of issuance of the final order.
(3) Simultaneously with the filing of
the notice of appeal, the permittee or
commenter must send a copy of such
notice by certified man to the DE and
the Attorney General
164 PR 50709. Dee. 8.1989]
-------
-------
Appendix D
USAGE O&M REGULATIONS: 33 CFR 335-337
-------
-------
Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engin**rs, D«pt. of tht Army, OoD Parf 335
PART 335—OPERATfON AND MAIN-
TENANCE OF ARMY CORPS OF EN.
GINEERS CIVIL WORKS PROJECTS
INVOLVING THE DISCHARGE OF
DREDGED OR FILL MATERIAL INTO
WATERS OF THE U.S. OR OCEAN
WATERS
See.
335.1 Purpose.
335.2 Authority.
335.3 Applicability.
335.4 Policy.
335.5 Applicable laws.
335.6 Related laws and Executive Orders.
335.7 Definitions.
AUTHOIUTY: 33 U.S.C. 1344: 33 U.S.C. 1413.
D-l
-------
Appendix D
Dredged Material Permit/Project Review Manual
§335.1
SOURCE 53 PR 14911. Apr. 26.1988, unless
otherwise noted.
8 335.1 Purpose.
This regulation prescribes the prac-
tices and procedures to be followed by
the Corps of Engineers to ensure com-
pliance with the specific statutes gov-
erning Army Civil Works operations
and maintenance projects involving
the discharge of dredged or fill materi-
al into waters of the U.S. or the trans-
portation of dredged material for the
purpose of disposal into ocean waters.
These practices and procedures should
be employed throughout the decision/
management process concerning meth-
odologies and alternatives to be used
• to ensure prudent operation and main-
tenance activities.
13S&2. Authority,
Under authority delegated from the
Secretary of the Army and in accord-
ance with section 404 of the Clean
Water Act of 1977 (CWA) and section
103 of the Marine Protection, Re-
search, and Sanctuaries Act of 1972,
hereinafter referred to as the Ocean
Dumping Act (ODA), the Corps of En-
gineers regulates the discharge of
dredged or fill material into waters of
the United States and the transporta-
tion of dredged material for the pur-
pose of disposal into ocean waters.
Section 404 of the CWA requires
public notice with opportunity for
public hearing for discharges of
dredged or fill material into waters of
the U.S. and that discharge sites can
be specified through the application of
guidelines developed by the Adminis-
trator of the Environmental Protec-
tion Agency (EPA) in conjunction with
the Secretary of the Army. Section
103 of the ODA requires public notice
with opportunity for public hearing
for the transportation for disposal of
dredged material for disposal in ocean
waters. Ocean disposal of dredged ma-
terial must be evaluated using the cri-
teria developed by the Administrator
of EPA in consultation with the Secre-
tary of the Army. Section 103(e) of the
ODA provides that the Secretary of
the Army may. in lieu of permit proce-
dures, issue regulations for Federal
projects involving the transportation
of dredged material for ocean disposal
D-2
33 CFR Ch. II (7-1-91 Edition)
which require the application of the
same criteria, procedures, and require-
ments which apply to the issuance of
permits. Similarly, the Corps does not
issue itself a CWA permit to authorize
Corps discharges of dredged material
or fill material into U.S. waters, but
does apply the 404(b)(l) guidelines
and other substantive requirements of
the CWA and other environmental
laws.
6 S3&3 Applicability. '
This regulation (33 CFR Parts 335
through 338) is applicable to the
Corps of Engineers when undertaking
operation and maintenance activitiss
at Army Civil Works projects.
8335.4 Polity
The Corps of Engineers undertakes
operations and maintema&ee activities
where appropriate and environmental-
ly acceptable. All practicable and rea-
sonable alternatives are fully consid-
ered on an equal basis. This includes
the discharge of dredged or fill materi-
al into waters of the TLS. or ocean
waters in the least costly manner, at
the least costly and most practicable
location, and consistent with engineer-
ing and environmental requirements.
i 335.5 Applicable laws.
(a) The Clean Water Act (33 U.S.C.
1251 et seq.) (also known as the Feder-
al Water Pollution Control Act
Amendments of 1972. 1977. and 1987).
(b) The Marine Protection. Re-
search, and Sanctuaries Act of 1972
(33 U.S.C. 1401 et seq.) (commonly re-
ferred to as the Ocean Dumping Act
(ODA)).
8335.6 Related laws and Executive
Orders.
(a) The National Historic Preserva-
tion Act of 1966 (16 U.S.C. 470a et
seq.). as amended.
(b) The Reservoir Salvage Act of
1960 (16 U.S.C. 469). as amended.
(c) The Endangered Species Act (16
U.S.C. 1531 et seq.), as amended.
(d) The Estuary Protection Act (16
U.S.C. 1221).
(e) The Fish and Wildlife Coordina-
tion Act (16 U.S.C. 661 et seq.). as
amended.
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engineers, Dcpt. of the Army, DoD
(f) The National Environmental
Policy Act (42 U.S.C. 4341 et seq7"as
amended.
3 and Scenic Rivers Act
- — • - et seq.) as amended.
(h) Section 307(c) of the Coastal
*°ne Management Act of 1976 (16
U.S.C. 1456 ExccuUye Order 12372. Intergov-
ernmental-Review of Federal J»m-
395B>
Port 336
"Navigable waters of the US"
means those waters of the UJS. that
are subject to the ebb and flow of the
tide shoreward to the mean high
water mark, and/or are presently
used, have been used in the past? or
£U!re¥onablc improvement to trans-
port interstate or foreign commerce. A
S3 aSRStttSS?AS5S
of this regulation, the term also in-
cludes the confines of Federal naviga-
tion approach channels extending into
m^*2,*?£*** heyond the territorial
EL^fr "* VKA for toterstate or
foreign commerce.
capable of being done after taking into
considejatlon^costJ^Wto5^ -
of
9ntar » ron-
IWfeeto Abroad of Major Feder-
al Actions. January 4, 1979.
• 835.7 Dennitioiu.
9^h^tjnlttoos of 33 CF« Parts 323
32** 327. and 329 are herebylnco™t'
™****™* we deflnS
from ^^rts 320 through
of 33
— —_. ~..m,,^,ff means the dis*
-. of dredged or fill material for
the purpose of replenishing an eroded
beach or placing sediments in the lit-
toral transport process.
J3S™*»&' ^eans a situation
"Statement of Findings (SOP)"
means a comprehensive summary com-
f""166 document signed by the dS-
trict engineer after completion of ap-
propriate environmental documento-
tion and public involvement. ^^
"Territorial sea" means the belt of
toe seas measured from the line of or-
dinary low water along that portion of
2« «»•* which is in dirert contact
with the open sea and the line mark-
25L££ seaward "»" of inland waters.
extending seaward a distance of three
to the
ae
to life or navigation, a signifi-
cant loss of property, or an immediate
Si^01if een ^^fcant economic
hardship if corrective action is not
taken within a time period less than
the normal time needed under stand-
ard procedures. «>»•«"«
"Federal standard" means the
dredged material disposal alternative
°r alternatives identified by the Corps
which represent the least costly alter-
natives consistent with sound engi-
neering practices and meeting the en-
SL°nSi!^a},ftandards established by
the 404(b)(l) evaluation process or
ocean dumping criteria. ^^
CONSID-
v ^ ION OF
ARMY CORPS OF ENGINEERS
DREDGING PROJECTS INVOLVING
THE DISCHARGE OF DREDGED
"RIAL INTO WATERS OF THE
AND OCEAN WATERS
Sec.
336.0 General.
or ""
338.2 ^nsportation of dredged material
for the purpose of disposal into ocean
w
ATTTHORITT: 33 U.S.C. 1344; 33 U.S.C. 1413
l4912- Apr-
D-3
-------
Appendix D
Dredged Material Permit/Project Review Manual
§336.0
6336.0 General.
Since the jurisdiction of the CWA
extends to all waters of the U.S., in-
cluding the territorial sea, and the ju-
risdiction of the ODA extends over
ocean waters including the territorial
sea, the following rules are established
to assure appropriate regulation of dis-
charges of dredged or fill material into
waters of the U.S. and ocean waters.
(a) The disposal into ocean waters.
including the territorial sea, of*
dredged material excavated or dredged
from navigable waters of the UJS. will
be evaluated by the Corps in accord-
ance with the ODA.
(b) In those cases where the district
engineer deter, -'^es that the dis-
charge of dredged material into the
territorial sea would be for the pri-
mary purpose of fill, such as the use of
dredged material for beach nourish-
ment, island creation, or construction
of underwater berms, the discharge
will be evaluated under section 404 of
the CWA.
(c) For those cases where the district
engineer determines that the materi-
als proposed for discharge in the terri-
torial sea would not be adequately
evaluated under fee section 404(bXl)
guidelines of the CWA, he may evalu-
ate that material under the ODA.
6 336.1 DUcharget of dredged or fill mate-
rial into waters of the U.S.
(a) Applicable laws. Section 404 of
the CWA governs the discharge of
dredged or fill material into waters of
the U.S. Although the Corps does not
process and issue permits for its own
activities, the Corps authorizes its own
discharges of dredged or fill material
by applying all applicable substantive
legal requirements, including public
notice, opportunity for public hearing.
and application of the section
404(b)U) guidelines.
(1) The CWA requires the Corps to
seek state water quality certification
for discharges of dredged or fill mate-
rial into waters of the U.S.
(2) Section 307 of the Coastal Zone
Management Act (CZMA) requires
that certain activities that a Federal
agency conducts or supports be con-
sistent with the Federally-approved
state management plan to the maxi-
mum extent practicable.
D-4
33 CFR Ch. \\ (7.L91 Edition)
(b) Procedures. If changes in a previ-
ously approved disposal plan for a
Corps navigation project warrant re-
evaluation under the CWA, the follow-
ing procedures should be followed by
district enginers prior to discharging
dredged material into waters of the
U.S. except where emergency action as
described in 1337.7 of this chapter is
required.
(1) A public notice providing oppor-
tunity for a public hearing should be
issued at the earliest practicable time.
The public notification procedures of
1337.1 of this chapter should be fol-
lowed.
(2) The public hearing procedures of
33 CFR Part 327 should be folio weJ
(3) As soon as practicable, the dis-
trict engineer will request from the
state a 401 water quality certification
and. If applicable, provide a coastal
zone consistency determination for
the Corps activity using the proce-
dures of i 336.KD) (8) and (9). respec-
tively, of this part.
(4) Discharges of dredged material
will be evaluated using the guidelines
authorized under section 404(b)(l) of
the CWA. or using the ODA regula-
tions, where appropriate. If the guide-
lines alone would prohibit the designa-
tion of a proposed discharge site, the
economic impact on navigation and
anchorage of the failure to use the
proposed discharge site will also be
considered in evaluating whether the
proposed discharge is to be authorized
under CWA section 404(b)(2).
(5) The EPA Administrator can pro-
hibit or restrict the use of any defined
area as a discharge site under 404(c)
whenever he determines, after notice
and opportunity for public hearing
and after consultation with the Secre-
tary of the Army, that the discharge
of such materials into such areas will
have an unacceptable adverse effect
on municipal water supplies, shellfish
beds and fishery areas, wildlife, or
recreation areas. Upon notification of
the prohibition of a discharge site by
the Administrator the district engi-
neer will complete the administrative
processing of the proposed project up
to the point of signing the Statement
of Findings (SOF) or Record of Deci-
sion (ROD). The unsigned SOF o;r
ROD along with a report described in
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engin*«rer Dopt. of the Army, DoD
§336.1
§ 337.8 of this chapter will be forward-
ed through the appropriate Division
office to the Dredging Division, Office
of the Chief of Engineers.
(6) In accordance with the National
Environmental Policy Act (NEPA),
and the regulations of the Council on
Environmental Quality (40 CFR Parts
1500-1508). an Environmental Impact
Statement (EIS) or Environmental As-
sessment (EA) will be prepared for all
Corps of Engineers projects involving
the discharge of dredged or fill materi-
al, unless such projects are included
within a categorical exclusion found at
33 CFR Pan 230 or addressed within
an existing EA or EIS. If a proposed
maintenance activit*- will result in a
deviation in the operation and mainte-
nance plan as described in the EA or
EIS. the district engineer will deter-
mine the need to prepare a new EA,
EIS. or supplement. If a new EA. EIS.
or supplement is required, the proce-
dures of 33 CFR Part 230 will be fol-
lowed.
(7) If it can be anticipated that relat-
ed work by other Federal or non-Fed-
eral interests will occur in the same
area as Corps projects, the district en-
gineer should use all reasonable means
to include it in the planning, process-
ing, and review of Corps projects. Re-
lated work normally includes, but is
not necessarily limited to. mainte-
nance dredging of approach channels
and berthing areas connected to Fed-
eral navigation channels. The district
engineer should coordinate the related
work with interested Federal, state, re-
gional, and local agencies and the gen-
eral public at the same time he does so
for the Corps project. The district en-
gineer should ensure that related work
meets all substantive and procedural
requirements of 33 CFR Parts 320
through 330. Documents covering
Corps maintenance activities normally
should also include an appropriate dis-
cussion of ancillary maintenance work.
District engineers should assist local
interests to obtain from the state any
necessary section 401 water quality
certification and, If required, the sec-
tion 307 coastal zone consistency con-
currence. The absence of such certifi-
cation or concurrence by the state or
the denial of a Corps permit for relat-
ed work shall not be cause for delay of
D-5
the Federal project. Local sponsors
will be responsible for funding any re-
lated work. If permitting of the relat-
ed work complies with all legal re-
quirements and is not contrary to the
public interest, section 10.404, and 103
permits normally will be issued by the
district engineer in a separate SOF or
ROD. Authorization by nationwide or
regional general permit may be appro-
priate. If the related work does not re-
ceive a necessary state.water quality
certification and/or CZMA consisten-
cy concurrence, or are determined to
be contrary to the public interest the
district engineer should re-examine
the project viability to ensure that
continued maintenance is warranted.
(8) State water Quality certification:
Section 401 of the CWA requires the
Corps to seek state water quality certi-
fication for dredged material disposal
into waters of the U.S. The state certi-
fication request must be processed to a
conclusion by the state within a rea-
sonable period of time. Otherwise, the
certification requirements of section
401 are deemed waived. The district
engineer will request water quality
certification from the state at the ear-
liest practicable time using the follow-
ing procedures:
(i) In addition to the Corps section
404 public notice, information and
data demonstrating compliance with
state water quality standards will be
provided to the state water quality
certifying agency along with the re-
quest for water quality certification.
The information and data may be in-
cluded within the 404(b)(l) evaluation.
The district engineer will request
water quality certification to be con-
sistent with the maintenance dredging
schedule for the project. Submission
of the public notice, including infor-
mation and data demonstrating com-
pliance with the state water quality
standards, will constitute a valid water
quality certification request pursuant
to section 401 of the CWA.
(ii) If the proposed disposal activity
may violate state water quality stand-
ards, after consideration of disposal
site dilution and dispersion, the dis-
trict engineer will work with the state
to acquire data to satisfy compliance
with the state water quality standards.
The district engineer will use the tech-
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Appendix D
Dredged Material Permit/Project Review Manual
§336.1
nlcal manual "Management Strategy
for Disposal of Dredged Material: Con-
taminant Testing and Controls" or its
appropriate updated version as a guide
for developing the appropriate tests to
be conducted on such dredged materi-
al.
(Ill) If the state does not take final
action on a request for water quality
certification within two months from
the date of the initial request, the dis-
trict engineer will notify the state of
his intention to presume a waiver as
provided by section 401 of the CWA. If
the state agency, within the two-
month period, requests an extension
of time, the district engineer may ap-
prove one 30-day extension unless, in
his opinion, the magnitude and com-
plexity of the information contained
in the request warrants a longer or ad-
ditional extension period. The total
period of time in which the state must
act should not exceed six months from
the date of the initial request. Waiver
of water quality certification can be
conclusively presumed after six
months from the date of the initial re-
quest.
(iv) The procedures of { 337.2 wm be
followed if the district engineer deter-
mines that the state data acquisition
requirements exceed those necessary
in establishment of the Federal stand-
ard.
(9) State coastal zone consistency:
Section 307 of the CZMA requires that
activities subject to the CZMA which a
Federal agency conducts or supports
be consistent with the Federally ap-
proved state management program to
the maximum extent practicable. The
state is provided a reasonable period
of time as defined in 1336.1(b)(9Xiv)
to take final action on Federal consist-
ency determinations; otherwise state
concurrence can be presumed. The dis-
trict engineer will provide the state a
consistency determination at the earli-
est practicable.time using the follow-
ing procedures:
(i) The Corps section 404 public
notice and any additional information
that the district engineer determines
to be appropriate will be provided the
state coastal zone management agency
along with the consistency determina-
tion. The consistency determination
will consider the maintenance dredg-
D-6
33 CFR Ch. II (7-1.91 Edition)
ing schedule for the project. Submis-
sion of the public notice and, as appro-
priate, any additional information as
determined by the district engineer
will constitute a valid coastal zone con-
sistency determination pursuant to
section 307 of the CZMA.
Cii) If the district engineer decides
that a consistency determination is
not required for a Corps activity, he
may provide the state agency a writ-
ten determination that the CZMA
does not apply.
(ill) The district engineer may pro-
vide the state agency a general consist-
ency determination for routine or re-
petitive activities.
(iv) If the state fails to provide a re-
sponse within 48 days from receipt of
the initial consistency determination.
the district engineer will presume
state agency concurrence. If the state
agency, within the 45-day period, re-
quests an extension of time, the dis-
trict engineer will approve one 15-day
extension unless, in his opinion, the
magnitude and complexity of the in-
formation contained in the consisten-
cy determination warrants a longer or
additional extension period. The
longer or additional extension period
shall not exceed six months from the
date of the initial consistency determi-
nation.
(v) If the district engineer deter-
mines that the state recommendations
to achieve consistency to the maxi-
mum degree practicable exceed either
his authority or funding for a pro-
posed dredging or disposal activity, he
will so notify the state coastal zone
management agency indicating that
the Corps has complied to the y»mxl-
mum extent practicable with the
state's coastal zone management pro-
gram. If the district engineer deter-
mines that state recommendations to
achieve consistency to the maifimi»Yi
degree practicable do not exceed his
authority or funding but, nonetheless.
are excessive, he will follow the proce-
dures of § 337.2.
(c) Evaluation facton. The following
factors will be used, as appropriate, to
evaluate the discharge of dredged ma-
terial Into waters of the UJS. Other
relevant factors may also be evaluated,
as needed.
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engineers, D»pt. of the Army, DoD
§336.1
(1) Navigation and Federal stand-
ard. The maintenance of a reliable
Federal navigation system is essential
to the economic well-being and nation-
al defense of the country. The district
engineer will give full consideration to
the impact of the failure to maintain
navigation channels on the national
and, as appropriate, regional economy.
It is the Corps' policy to regulate the
discharge of dredged material from its
projects to assure that dredged materi-
al disposal occurs in the least costly,
environmentally acceptable manner,
consistent with engineering require-
ments established for the project. The
environmental assessment or environ-
mental impact statement, In conjunc-
tion with the section 404(b)(l) guide-
lines and public notice coordination
process, can be used as a guide in for-
mulating'environmentally acceptable
alternatives. The least costly alterna-
tive, consistent with sound engineering
practices and selected through the
404(bXl> guidelines or ocean disposal
criteria, will be designated the Federal
standard for the proposed project.
(2) Water Quality. The 404(bXI)
guidelines at 40 CFB Part 230 and
ocean dumping criteria at 40 CPR Part
220 implement the environmental pro-
tection . provisions of the CWA and
ODA. respectively. These guidelines
and criteria provide general regulatory
guidance and objectives, but not a spe-
cific technical framework for evaluat-
ing or managing contaminated sedi-
ment that must be dredged. Through
the section 404(b)(l) evaluation proc-
ess (or ocean disposal criteria for the
territorial sea), the district engineer
will evaluate the water Quality impacts
of the proposed project. The evalua-
tion will include consideration of state
water quality standards. If the district
engineer determines the dredged ma-
terial to be contaminated, he will
follow the guidance provided in the
most current published version of the
technical manual for contaminant
testing and controls. This manual is
currently cited as: Francingues, N.R^
Jr.. et aL 1985. "Management Strategy
for Disposal of Dredged Material: Con-
taminant Testing and Controls," Mis-
cellaneous Paper D-85-1, U.S. Army
Waterways Experiment Station, Vicks-
burg. Mississippi. The procedures of
§ 336.1(b)(8) will be followed for state
water quality certification requests.
(3) Coastal zone consistency. As ap-
propriate, the district engineer will de-
termine whether the proposed project
is consistent with the state coastal
zone management program to the
maximum extent practicable. The pro-
cedures of 5336.1(bX9) will be fol-
lowed for coastal zone consistency de-
terminations. *'
(4) Wetlands. Most wetland areas
constitute a productive and valuable
public resource, the unnecessary alter-
ation or destruction of which should
be discouraged as contrary to the
public interest. The district engineer
will, therefore, follow the guidance in
33 CFR 320.4(b) and EO 11990. dated
May 24. 1977. when evaluating Corps
operations and maintenance activities
in wetlands.
(5) Endangered species. All Corps op-
erations and maintenance activities
will be reviewed for the potential
impact on threatened or endangered
species, pursuant to the Endangered
Species Act of 1973. If the district en-
gineer determines that the proposed
activity will not affect listed species or
their critical habitat, a statement to
this effect should be included in the
public notice. If the proposed activity
may affect listed species or their criti-
cal habitat, appropriate discussions
will be initiated with the U.S. Fish and
Wildlife Service or National Marine,
Fisheries Service, and a statement to
this effect should be included in the
public notice. (See SO CFR Part 402).
(6) Historic resources. Archeological.
historical, or architectural resource
surveys may be required to locate and
identify previously unrecorded historic
properties in navigation channels and
at dredged or fill material disposal
sites. If properties that may be histor-
ic are known or found to exist within
the navigation channel or. proposed
disposal area, field testing and analysis
may sometimes be necessary in order
to evaluate the properties against the
criteria of the National Register of
Historic Places. Such testing should be
limited to the amount arid kind
needed to determine eligibility for the
National Register, more detailed and
extensive work on a property may be
prescribed later, as the outcome of
D-7
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Appendix D
Dredged Material Permit/Project Review Manual
§336.1
review under section 106 of the Na-
tional Historic Preservation Act. His-
toric properties are not normally
found in previously constructed navi-
gation channels or previously used dis-
posal areas. Therefore, surveys to
identify historic properties should not
be conducted for maintenance dredg-
ing and disposal activities proposed
. within, the boundaries of previously
constructed navigation channels or
previously used disposal areas unless
there is good reason to believe that
historic properties exist there.
(i) The district engineer will estab-
lish whether historic properties locat-
ed in navigation channels or at dispos-
al sites are eligiMr ~T inclusion in the
National Register oi Historic Places in
accordance with applicable regulations
of the Advisory Council on Historic
Preservation and the Department of
the Interior.
(ii> The district engineer will take
into account the effects of any pro-
posed actions on properties included in
or eligible for inclusion in the National
Register of Historic Places, and will re-
quest the comments of the Advisory
Council on Historic Preservation, in
accordance with applicable regulations
of the Advisory Council on Historic
Preservation.
(7) Scenic and recreational values.
(I) Maintenance dredging and disposal
activities may involve areas which pos-
sess recognized scenic, recreational, or
similar values. Full evaluation requires
that due consideration be given to the
effect which dredging and disposal of
the dredged or fill material may have
on the enhancement, preservation, or
development of such values. Recogni-
tion of these values is often reflected
by state, regional, or local land use
classification or by similar Federal
controls or policies. Operations and
maintenance activities should, insofar
as possible, be consistent with and
avoid adverse effects on the values or
purposes for which such resources
have been recognized or set aside, and
for which those classifications, con-
trols, or policies were established. Spe-
cial consideration must be given to
rivers named In section 3 of the Wfld
and Scenic Rivers Act and those pro-
posed for Inclusion as provided by sec-
D-8
33 CFR Ch. II (7.1.91 Edition)
tion 4 and 5 of the Act. or by later leg-
islation.
(ID Any other areas named in Acts of
Congress or Presidential Proclama-
tions, such as National Rivers. Nation-
al Wilderness Areas. National Sea-
shores, National Parks, and National
Monuments, should be given full con-
sideration when evaluating Corps op-
erations and maintenance activities.
(8) fish and wildlife, (i) In those
cases where the Fish and Wildlife Co-
ordination Act (FWCA) applies, dis-
trict engineers will consult, through
the public notification process, with
the Regional Directors of the U.S.
Fish and Wildlife Service and the Na-
tional Marine Fisheries Service and
the head of the agency responsible for
fish and wildlife for the state in which
the work is to be performed, with a
view to the conservation of fish and
wildlife resources by considering ways
to prevent their direct and indirect
loss and damage due to the proposed
operation and maintenance activity.
The district engineer will give full con-
sideration to these views on fish and
wildlife conservation in evaluating the
activity. The proposed operations may
be modified in order to lessen the
damage to such resources. The district
engineer should include such justifi-
able means and measures for fish and
wildlife resources that are found to be
appropriate. Corps funding of Fish
and Wildlife Service activities under
the Transfer of Funds Agreement be-
tween the Fish and Wildlife Service
and the Corps is not applicable for
Corps operation and maintenance
projects.
(ii) District engineers should consid-
er ways of reducing unavoidable ad-
verse environmental impacts of dredg-
ing and disposal activities. The deter-
mination as to the extent of imple-
mentation of such measures will be
done by the district engineer after
weighing the benefits and detriments
of the maintenance work and consider-
ing applicable environmental laws.
regulations, and other relevant fac-
tors.
(9) Marine sanctuaries. Operations
and maintenance activities involving
the discharge of dredged or fill materi-
al in a marine sanctuary established
by the Secretary of Commerce under
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engineers, D»pt. of th» Army, DoD
§336.2
authority of section 302 of the ODA
should be evaluated for the impact on
the marine sanctuary. In such a case,
certification should be obtained from
the Secretary of Commerce that the
proposed project is consistent with the
purposes of Title m of the ODA and
can be carried out within the regula-
tions promulgated by the Secretary of
Commerce to control activities within
the marine sanctuary.
(10) Other state requirements. Dis-
trict engineers will make all reasona-
ble efforts to comply with state water
quality standards and Federally ap-
proved coastal cone programs "«
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Appendix D
Dredged Material Permit/Project Review Manual
§336.2
be consistent with an approved state
CZMA plan. If such a circumstance
arises, the district engineer shall so
notify the division engineer who then
decides on consultation with CECW-
D. CECW-Z. and CECC-E for pur-
poses of determining the Corps of En-
gineers' appropriate response and
course of action.
(d) Evaluation factors. (1) In addi-
tion to the appropriate evaluation fac-
tors of S336.KO, activities involving
the transportation of dredged material
for the purpose of disposal in ocean
waters will be evaluated by the Corps
.to determine whether the proposed
disposal will unreasonably degrade or
endanger human ...ilth, welfare, o~
amenities, or the marine environment,
ecological systems or economic poten-
tialities. In making this evaluation.
the district engineer, in addition to
considering the criteria developed by
EPA on the effects of the dumping.
will also consider navigation, economic
and industrial development, and for-
eign and domestic commerce, as well
as the availability of alternatives to
ocean disposal, in determining the
need for ocean disposal of dredged ma-
terial. Where ocean disposal is deter-
mined to be appropriate, the district
engineer will, to the extent feasible.
specify disposal sites which have been
designated by the Administrator pur-
suant to section 102(c> of the ODA.
(2) As provided by the EPA regula-
tions at 40 CFR 225.2(b-e) for imple-
menting the procedures of section 102
of the ODA. the regional administra-
tor of EPA may make an independent
evaluation of dredged material dispos-
al activities regulated under section
103 of the ODA related to the effects
of dumping. The EPA regulations pro-
vide that the regional administrator
make said evaluation within 15 days
after receipt of all requested informa-
tion. The regional administrator may
request from the district engineer an
additional 15-day period for a total of
to 30 days. The EPA regulations pro-
vide that the regional administrator
notify the district engineer of non-
compliance with the environmental
impact criteria or with any restriction
relating to critical areas on the use of
an EPA recommended disposal site
designated pursuant to section 102(c)
D-10
33 CFR Ch. II (7-1-91 Edition)
of the ODA. In cases where the re-
gional administrator has notified the
district engineer in writing that the
proposed disposal will not comply with
the criteria related to the effects of
dumping or related to critical area re-
striction, no dredged material disposal
may occur unless and until the provi-
sions of 40 CFR 225.3 are followed and
the Administrator grants a waiver of
the criteria pursuant to section 103(d)
of the ODA.
(3) If the regional administrator ad-
vises the district engineer that the
proposed disposal wOl comply with the
criteria, the district engineer will com-
plete the administrative record and
sign the 8OF.
(4) In situations where an EPA-des-
ignated site is not feasible for use or
where no site has been designated by
the EPA. the district engineer, in ac-
cordance with the ODA and in consul-
tation with EPA, may select a site pur-
suant to section 103. Appropriate
NEPA documentation should be used
to support site selections. District en-
gineers should address site selection
factors .in the NEPA document. Dis-
trict engineers will consider the crite-
ria of 40 CFR Parts 227 and 228 when
selecting ocean disposal sites, as well
as other technical and economic con-
siderations. Emphasis will be placed
oh evaluation to determine the need
for ocean disposal and other available
alternatives. Each alternative should
be fully considered on an equal basis,
including the no dredging option.
(5) If the regional administrator ad-
vises the district engineer that a pro-
posed ocean disposal site or activity
will not comply with the criteria, the
district engineer should proceed as fol-
lows.
(i) The district engineer should de-
termine whether there is an economi-
cally feasible alternative method or
site available other than the proposed
ocean disposal site. If there are other
feasible alternative methods or sites
available, the district engineer will
evaluate the engineering and economic
feasibility and environmental accept-
ability of the alternative sites.
(ii) If the district engineer makes a
determination that there is no eco-
nomically feasible alternative method
or site available, he will so advise the
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engineers, D«pt. of the Army, DoD
§337.1
regional administrator of his intent to
proceed with the proposed action set-
ting forth his reasons for such deter-
mination.
(iii) If the regional administrator ad-
vises, within 15 days of the notice of
the intent to issue, that he will com-
mence procedures specified by section
103(c) of the ODA to prohibit use of a
proposed disposal site, the case will be
forwarded through the respective Di-
vision office and CECW-D to the Sec-
retary of the Army or his designee for
further coordination with the Admin-
istrator of EPA and final resolution.
The report forwarding the case should
be in the format described in i 337.8 of
this chapter.
(iv) The Secretary of -the Army or
his designee will evaluate the proposed
project and make a final determina-
tion on the proposed disposal If the
decision of the Secretary of the Army
or his designee is that ocean disposal
at the proposed site is required be-
cause of the unavailability of economi-
cally feasible alternatives, he wffl seek
a waiver from the Administrator, EPA,
of the criteria or of the critical site
designation in accordance with section
103(d) of the ODA.
PART 337—PRACTICE AND
PROCEDURE
Sec.
337.0 Purpose.
337.1 Public notice.
337.2 State requirements.
337.3 Transfer of section 404 program to
the states.
337.4 Memoranda of Agreement (MOA).
337.5 General authorizations.
337.6 Statement of Findings (SOP).
337.7 Emergency actions.
337.8 Reports to higher echelons.
337.9 Identification and use of disposal
areas.
337.10 Supervision of Federal projects.
ADTHORITT: 33 U.S.C. 1344; 33 U.S.C. 1413.
Source 53 PR 14916. Apr. 26.1988. unless
otherwise noted.
8 337.0 Purpose.
The practices and procedures part of
this regulation apply to all Corps oper-
ations and maintenance activities in-
volving the discharge of dredged or fill
material in waters of the U.S. and
ocean waters and related activities of
local interests accomplished to ensure
continued functions of constructed
Corps projects.
8337.1 Public notice.
Presently, public notification of pro-
posed discharges of dredged or fill ma-
terial is required by the provisions of
section 103 of the ODA and sections
401 and 404 of the CWA. District engi-
neers are encouraged to develop proce-
dures to avoid unnecessary duplication
of state agency procedures. Joint
public notification procedures should
be a primary factor in the develop-
ment of Memoranda of Agreement
with the states as described in 1337.4.
(a) With the possible exception of
emergency actions as discussed in
1337.7. the district engineer should
issue a public notice for projects in-
volving the discharge of dredged or f 01
material into waters of the U.S. or
ocean waters unless the project is au-
thorized by a general permit. Public
notices for Corps operation and main-
tenance activities are normally issued
for an indefinite period of time and
are not reissued unless changes in the
disposal plan warrant re-evaluation
under section 404 of the CWA or sec-
tion 103 of the ODA. The public notice
is the primary method of advising all
interested parties of Federal projects
and of soliciting comments and infor-
mation necessary to evaluate the prob-
able impact of the discharge of
dredged or fill material into waters of
the U.S. or ocean waters. The notice
should, therefore, include sufficient
information to provide a clear under-
standing of the nature of the activity
and related activities of local interests
in order to generate meaningful com-
ments. A single public notice may be
used for more than one project in ap-
propriate cases. The notice normally
should Include the following items:
(1) The name and location of the
project and proposed disposal site.
(2) A general description of the
project and a description of the esti-
mated type, composition, and quantity
of materials to be discharged, the pro-
posed time schedule for the dredging
activity, and the types of equipment
and methods of dredging and convey-
ance proposed to be used.
D-ll
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Appendix D
Dredged Material Permit/Project Review Manual
§337.1
(3) A sketch showing the location of
the project, including depth of water
in the area and all proposed discharge
sites.
(4) The nature, estimated amount.
and frequency of known and anticipat-
ed related dredging and discharge to
be conducted by others.
(5) A list of Federal, state, and local
environmental agencies with whom
the activity is being coordinated.
(6) A statement concerning a prelim-
inary determination of the need for
and/or availability of an environmen-
tal impact statement.
(7) Any other available information
which may assLt interested parties iii
evaluating the likely impact of the
proposed activity, if any.
(8) A reasonable period of time, nor-
mally thirty days but not less than fif •
teen days from date of mailing except
in emergency situations where the
procedures of i 337.7 will be followed.
within which interested parties may
express their views concerning the
proposed project.
(0) If the proposed Federal project
would occur in the territorial seas or
ocean waters, a description of the
project's relationship to the baseline
from which the territorial sea is meas-
ured.
(10) A statement on the status of
state water quality certification under
section 401 of the CWA.
. (11) For activities requiring a deter-
mination of consistency with an ap-
proved state coastal zone management
plan, the following information win be
included in the notice:
(1) A statement on whether or not
the proposed activity will be undertak-
en in a manner consistent to the maxi-
mum extent practicable with the state
management program.
(ii) Sufficient information to support
the consistency determination to in-
clude associated facilities and their
coastal zone effect.
(iii) Data and supporting informa-
tion commensurate with the expected
effects of the activity on the coastal
zone.
(12) A statement on historic re-
sources, state of present knowledge.
likelihood of damage or other adverse
effect on such resources, etc.
D-12
33 CFR Ch. II (7-1-91 Edition)
(13) A statement on endangered spe-
cies.
(14) A statement on evaluation fac-
tors to be considered, adapted from
that presented at 33 CFR 325.3(b).
(15) The name, address, and tele-
phone number of the Corps employee
from whom additional information
concerning the project may be ob-
tained.
(16) The signature of the district en-
gineer or his designee on all mainte-
nance dredged material disposal public
notices.
(17) For activities regulated under
section 103 of the ODA, the following
additional information should be inte-
grated into the public notice:
(i) A statement on the designation
status of the disposal site.
(ii) If the proposed disposal site is
not a designated site, a description of
the characteristics of the proposed dis-
posal site and an explanation as to
why no previously designated disposal
site is feasible.
(iii) A brief description of known
dredged material discharges at the
proposed disposal site.
(iv) Existence and documented ef-
fects of other authorized disposals
that have been made at the disposal
area.
(v) An estimated length of time
during which disposal would continue
at the proposed site.
(vi) Information on the characteris-
tics and composition of the dredged
material, and the following paragraph:
The proposed transportation of this
dredged material for disposing of it in ocean
waters is being evaluated to determine that
the proposed disposal will not unreasonably
degrade or endanger human health, welfare.
or amenities or the marine environment, ec-
ological systems, or economic potentialities.
In making this determination, the criteria
established by the Administrator. EPA pur-
suant to section 102(a> of the ODA, will be
applied. In addition, based upon an evalua-
tion of the potential effect which the fail-
ure to utilize this ocean disposal site will
have on navigation, economic and industrial
development, and foreign and domestic com-
merce of the United States, an independent
determination will be made of the need to
dispose of the dredged material in ocean
waters, other possible methods of disposal.
and other appropriate locations.
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engineers, D»pt. of th« Army, DoD
§337.2
(b) The following statement should
be Included in the public notices:
Any person who his mn interest which
may be affected by the disposal of this
dredged material may request a public hear-
ing. The request must be submitted in writ-
ing to the district engineer within the com-
ment period of this notice and must clearly
aet forth the interest which may be affected
and the manner in which the interest ™*v
be affected by this activity.
(c) Public notices should be distrib-
uted as described in 33 CFR 325.3(c).
In addition, public notices should be
sent to CECW-D. Office of the Chief
of Engineers, Washington. DC 20314.
if the project involves the discharge of
dredged material in waters of the UJS.
or ocean waters. District engineers
should also develop, as appropriate, re-
gional mailing lists for Corps mainte-
nance dredging and disposal activities
to the extent that property owners ad-
jacent to the navigation channel and
disposal area are notified of the pro-
posed activity. In order to effect com-
pliance with Executive Order 12372.
district engineers should provide
copies of public notices to concerned
state and local elected officials.
(d) The district engineer should con-
sider all comments received in re-
sponse to the public notice in his sub-
sequent actions. Ail comments ex-
pressing objections to or raising ques-
tions about the project should be ac-
knowledged. Comments received as
form letters or petitions, however.
may be acknowledged as a group to
the person or organization responsible
for the form letter or petition. If com-
ments are received which relate to
matters within the special expertise of
another agency, the district engineer
may seek the advice of that agency.
The receipt of comments as a result of
the public notice normally should not
extend beyond the stated comment
period; however, at his discretion, the
district engineer may provide an ex-
tension.
(e) Notices sent to several agencies
within the same state may result in
conflicting comments from those agen-
cies. Many states have designated a
state agency or individual to provide a
single and coordinated state position
regarding Federal activities. Where a
state has not so designated a single
source, the district engineer, as appro-
priate, may seek from the Governor
an expression of his views and desires
concerning the proposed and subse-
quent similar projects.
(f) All comments received from the
public notice coordination should be
considered in the public interest
review process. Comments received
from Federal or state agencies which
are within the area of expertise of an-
other agency will be communicated
with that other agency if the district
engineer needs the information to
make a final determination on the pro-
posed project.
5337.2 State requirements.
The procedures of this section
should be followed in implementing
state requirements.
(a) District engineers should cooper-
ate to the maximum extent practica-
ble with state agencies to prevent vio-
lation of Federally approved state
water quality standards and to achieve
consistency to the m^rin^m degree
practicable with an approved coastal
zone management program.
(b) If the state agency imposes con-
ditions or requirements which exceed
those needed to meet the Federal
standard, the district engineer should
determine and consider the state's ra-
tionale and provide to the state infor-
mation addressing why the alternative *
which represents the Federal standard
is environmentally acceptable. The
district engineer will accommodate the
state's concerns to the extent practica-
ble. However, if a state agency at-
tempts to impose conditions or con-
trols which, in the district engineers
opinion, cannot reasonably be accom-
modated, the following procedures will
be followed.
(1) In situations where an agency re-
quires monitoring or testing, the dis-
trict engineer will strive to reach an
agreement with the agency on a data
acquisition program. The district engi-
neer will use the technical manual
"Management Strategy for Disposal of
Dredged Material: Contaminant Test-
ing and Controls" or its appropriate
updated version as a guide for develop-
ing the appropriate tests to be con-
ducted. If the agency insists on re-
D-13
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Appendix D
Dredged Material Permit/Project Review Manual
§337.3
qulrements which, in the opinion of
the district engineer, exceed those re-
quired in establishment of the Federal
standard, the agency will be asked to
fund the difference in cost. If the
agency agrees to fund the difference
in cost, the district engineer will
comply with the request. If the agency
does not fund the additional cost, the
district engineer will follow the guid-
ance in paragraph (b) (3) of this sec-
tion.
(2) When an agency requires special
conditions or implementation of an al-
ternative which the Federal standard
does not, district engineers will pro-
ceed as follows: In those cases where
the project authorization requires a
local sponsor to provide suitable dis-
posal areas, disposal areas must be
made available by a sponsor before
dredging proceeds. In other cases
where there are no local sponsor re-
quirements to provide disposal areas,
the state or the prospective local spon-
sor wfll be advised that, unless the
state or the sponsor provides suitable
disposal areas, the added Federal cost
of providing these disposal areas -will
affect the priority of performing
dredging on that project. In either
case, states wfll be made aware that
additional costs to meet state stand-
ards or the requirements of the coast-
al zone management program which
exceed those necessary in establish-
ment of the Federal standard may
cause the project to become economi-
cally unjustified.
(3) If the state denies or notifies the
district engineer of its intent to deny
water quality certification or does not
concur regarding coastal zone consist-
ency, the project dredging may be de-
ferred. A report pursuant to § 337.8 of
this section will be forwarded to
CECW-D, Office of the Chief of Engi-
neers, Washington. DC 20314-1000 for
resolution.
§337.8 Transfer of the section 404 pro-
gram to the states.
Section 404(g-l) of the CWA allows
the Administrator of the EPA to
transfer to qualified states administra-
tion of the section 404 permit program
for discharges into certain waters of
the U.S. Once a state's 404 program is
approved, the district engineer wfll
D-14
33 CFR Ch. II (7.1-91 Edition)
follow state procedures developed in
accordance with section 404(g-l) of
the CWA for all on-going Corps
projects involving the discharge of fill
material in transferred waters to the
state agency responsible for adminis-
tering the program. Corps projects in-
volving the discharge of dredged or fill
material in waters not transferred to
the state wfll be processed in accord-
ance with this regulation.
1 837.4 Memoranda of Agreement (MOA).
The establishment of joint notifica-
tion procedures for Corps projects in-
volving disposal of dredged or fill ma-
terial should be actively pursued
through the development of MOAs
with the state. The MOAs may be
used to define responsibilities between
the state and the Corps district in-
volved. The primary purpose of MOAs
wfll be to avoid or eliminate
trative duplication, when such duplica-
tion does not contribute to the overall
decision-making process. MOAs for
purposes of this regulation will not be
used to implement provisions not re-
lated to the maintenance or enforce-
ment of Federally-approved state
water quality standards or coastal
zone management programs. District
engineers are authorized and encour-
aged to develop MOAs with states and
other Federal agencies for Corps
projects involving the discharge of
dredged or fill material. Copies of all
MOAs will be forwarded to CECW-D.
Office of the Chief of Engineers.
Washington. DC 20314-1000 for ap-
proval.
B 33741 General authorizations.
Under the provisions of sections
404(e> of the CWA and 104(c) of the
ODA certain categories of activities
may be authorized on a regional, state-
wide/ or nationwide basis. General au-
thorizations can be a useful mecha-
nism for implementation of the proce-
dural provisions of the CWA, CZMA.
and ODA while avoiding unnecessary
duplication and paperwork. Through
the general authorization process.
compliance with all environmental
laws and regulations including coastal
zone consistency, if applicable, and
•water quality certification can be ac-
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engineers, 0«pl. of the Army, DoD
complished in a single process for a
category of activities. Since the em-
phasis of particular environmental
issues for most Corps projects is more
regional than nationwide, district engi-
neers are encouraged to develop gener-
al authorizations for routine Civil
Works activities involving the dis-
charge of dredged or fill material to
address the specific requirements of a
particular geographic region. When
evaluating general categories of activi-
ties, the district engineer should
follow the same procedure as outlined
for individual Federal activities includ-
ing the water quality certification
and/or coastal zone consistency re-
quirements of Part 3«w of this chapter.
General authorizations should include
related activities of local interests. Ad-
ditionally, .district engineers should
use existing general permits author-
ized on a statewide or regional basis
and the nationwide permits at 33 CFR
Part 330 for Federal projects involving
the disposal of dredged material. The
development of new statewide or re-
gional general authorizations for Fed-
eral activities should be in accordance
with the requirements of Si 336.1 and
336.2 of this chapter. General permits
for related activities of local interests
should be developed using the proce-
dures of 33 CFR Parts 320 through
330.
fi S37.6 Statement of Findings (SOP).
Upon completion of the evaluation
process including required coordina-
tion, receipt or waiver of required
state certifications, and completion of
the appropriate environmental docu-
ments, an 8OF will be prepared. In
cases involving an EIS. a ROD will be
prepared in accordance with 33 CFR
Part 230 and should be used in lieu of
the SOF. providing the substantive
parts of this section are included in
the ROD. The SOF need not duplicate
information contained in supporting
environmental documents but rather
may incorporate it by reference. The
SOF should include a comprehensive
summary and record of compliance
and should be prepared in the follow-
ing format except that the procedures
of 33 CFR 325.2 should be followed for
related activities of local interests.
§337.6
(a) The SOF should identify the
name of the preparer, date (which
may not necessarily correspond to the
date signed), and name of waterway.
(b) The proposed action for which
the findings are made should be de-
scribed.
CO A coordination section should be
provided. The coordination section
should reference the public notice
number and date. The letters of com-
ment and appropriate' responses
should be summarized. Any coordina-
tion undertaken by local or state agen-
cies should also be discussed.
(d) An environmental effects and im-
pacts section should be used to docu-
ment compliance with the applicable
environmental laws. This section
should include the views and/or condi-
tions of the state concerning water
quality certification and, if required,
the results of the coastal zone consist-
ency process.
(e) A determinations section should
reference the results of the EA and/or
EIS and any conditions necessary to
meet the state's water quality stand-
ards or coastal zone management pro-
gram. Appropriate conditions or modi-
fications should be included in the
project specifications. This section
should also contain a subsection on
consideration of alternatives and cu-
mulative impacts.
(f) A section on the district engi-
neer's findings and conclusions con-
cerning the proposed project should
be included.
(g) The SOF should be dated and
signed by the district engineer or his
designee except in those cases requir-
ing referral to higher authority.
(h) In accordance with the provi-
sions of section 104(g) of the ODA, the
district engineer will forward a copy of
the SOF to the District Commander
U.S. Coast Guard, if the activity in-
volves the ocean disposal of dredged
material.
The Findings of No Significant
Impact or ROD, as appropriate, re-
quired by 33 CFR Part 230 may be in-
corporated into the SOF. as appropri-
D-15
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Appendix D
Dredged Material Permit/Project Review Manual
§337.7
S S37.7 Emergency actions.
After obtaining approval from the
division engineer, the district engineer
will respond to emergency situations
on an expedited basis, complying with
the procedures of this regulation to
the maximum degree practicable. The
district engineer will issue a public
notice describing the emergency in ac-
cordance with i 337.1, if such a notice
is practicable in view of the emergency
situation; such a public notice should
be forwarded to all appropriate Feder-
al and state agencies. The district en-
gineer should prepare a section
404(b)(l) evaluation report and. as
necessary, an environmental assess-
ment, if this is practicable in view of
the emergency situation. If comments
are received from the public notice
which, in the judgment of the district
engineer, reveal the necessity of modi-
fying the emergency operation, the
district engineer should take appropri-
ate measures to modify the emergency
operation to reduce, avoid, or minimi?*
adverse environmental impacts. If the
district engineer, after receiving com-
ments from the public notice, deter-
mines that the emergency action
would constitute a major Federal
action significantly affecting the qual-
ity of the human environment, he
should, after consultation with the di-
vision engineer, coordinate with the
Council on Environmental Quality
about alternative arrangements for
compliance with the NEPA in accord-
ance with 40 CFR 1506.11 to the
extent that it is practicable in view of
the emergency situation. District engi-
neers should consult with the appro-
priate state officials to seek water
quality certification or waiver of certi-
fication, and should certify that the
Federal action is consistent to the
maximum extent practicable with an
approved coastal zone management
plan for emergency activities, to the
extent that is practicable in view of
the emergency.
5 337.8 Reports to higher echelons.
(a) Certain activities involving the
discharge of dredged or/in material re-
quire action by the division engineer
or Chief of Engineers. Such reports
should be prepared in the format de-
scribed in paragraph (b) of this sec-
D-16
33 CFR Ch. II (7-1.91 Edition)
tion. Reports may be necessary in the
following situations:
(1) When there is substantial doubt
as to the authority, law, regulations,
or policies applicable to the Federal
project;
(2) When higher authority requests
the case be forwarded for decision;
(3) When the state does not concur
in a coastal zone consistency determi-
nation or attempts to concur with con-
ditions or controls; .
(4) When the state denies or unrea-
sonably delays a water quality certifi-
cation or issues the certification with
conditions or controls not related to
maintenance or enforcement of state
water quality standards or significant-
ly exceeding the Federal standard;
(5) When the regional administrator
has advised the district engineer, pur-
suant to section 404(c) of the CWA, of
.his intent to prohibit or restrict the
use of a specified discharge site; or no-
tifies the district engineer that the dis-
charge of dredged material in ocean
waters or territorial seas will not
comply with the criteria and restric-
tions on the use of the site established
under the ODA; and the district engi-
neer determines that the proposed dis-
posal cannot be reasonably modified
to alleviate the regional administra-
tor's objections; and
(6) When the state fails to grant
water quality certification or a waiver
of certification or concurrence or
waiver of coastal zone consistency for
emergency actions.
(b) Reports. The report of the dis-
trict engineer on a project requiring
action by higher authority should be
in letter form and contain the follow-
ing information:
(1) Justification showing the eco-
nomic need for dredging. "
(2) The impact on states outside the
project area if the project is not
dredged.
(3) The estimated cost of agency re-
quirements which exceed those neces-
sary in establishment of the Federal
standard.
(4) The relative urgency of dredging
based on threat to national security.
life or property.
(5) Any other facts which will aid in
determining whether to further defer
the dredging and seek Congressional
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Appendix D
Dredged Material Permit/Project Review Manual
Corps of Engineers, D*pt. of Ih* Army, DoD
§338.1
appropriations for the added expense
or the need to exercise the authority
of the Secretary of the Army to main-
tain navigation as provided by sections
511(a) and 404(t) of the CWA if the
disagreement concerns water quality
certification or other state permits.
(6) If the disagreement concerns
coastal zone consistency, the district
engineer will follow the reporting re-
quirement of this section and
i 336.1(9) of this chapter.
6337.9 Identification and use of disposal
(a) District engineers should identify
and develop dredged material disposal
management strategies that satisfy
the long-term (greater than 10 years)
needs for Corps projects. Full consid-
eration should be given to all practica-
ble alternatives including upland, open
water, beach nourishment, within
banks disposal, ocean disposal, etc.
Within existing policy, district engi-
neers should also explore beneficial
uses of dredged material, such as
marsh establishment and dewaterihg
techniques, in order to extend the
useful life of existing disposal areas.
Requests for water quality certifica-
tion and/or coastal zone consistency
concurrence for projects with identi-
fied long-term disposal sites should in-
clude the length of time for which the
certification and/or consistency con-
currence is sought. The section
404(bXl) evaluation and environmen-
tal assessment or environmental
impact statement should also address
long-term maintenance dredging and
. disposal. District engineers should use
the guidance at 40 CFR 230.80 to
shorten environmental compliance
processing time. The Corps of Engi-
neers will be.responsible for accom-
plishing or assuring environmental
compliance requirements for all dis-
posal areas. This does not preclude the
adoption of other agencies NEPA doc-
uments in accordance with 40 CFR
Parts 1500 through 1508.
(b) The identification of disposal
sites should include consideration of
dredged material disposal needs by
project beneficiaries. District engi-
neers are encouraged to require local
interests, where the project has a local
sponsor, to designate long-term dispos-
al areas.
8337.10 Supervision of Federal projects.
District engineers should assure that
dredged or fill material disposal activi-
ties are conducted in conf onnance
with current plans and description of
the project as expressed in the SOF or
ROD. Conditions and/or limitations
required by a state (e.g., water quality
certification), as identified through
the coordination process, should be in-
cluded in the project specifications.
Contracting officers should assure
that contractors are aware of their re-
sponsibilities for compliance with the
terms and conditions of state certifies-
D-17
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Appendix E
PERMIT APPLICATION FORM
-------
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Appendix E
Dredged Material Permit/Project Review Manual
APPLICATION FOR DEPARTMENT OF THE ARMY PERMIT
OMB APFHOVAL .VO. tirnl.iM.iti
Expire* JO June 1996
The Department of the Army permit program is authorized by Section 10 of the River «nd Harbor Act of 1899. Section 404 of the
Clean Water Act and Section 103 of the Marine. Protection. Research and Sanctuaries Act. The»e law* require permits authorizing
activities in or affecting navif able waters of the United States, the discharge of dredged or fill material into waters of the United States.
and the transportation of dredged material for the purpose of dumping it into ocean waters Information provided on this form will be
used in evaluating the application for a permit. Information in this application is made a matter of public record through issuance of a
public notice Disclosure of the information requested is voluntary: however, the data requested are necessary in order to communicate
with the applicant and to evaluate the permit application. If necessary information is not provided, the permit application cannot be
processed nor can a permit be issued.
One act of original drawings or good reproducible copies which show the location and character of the proposed activity must be
attached to this application nee sample drou-infs and tiuiructinnii and be submitted to the District Engineer having jurisdiction over
the location of the proposed activity. An application that is not completed in full will be returned.
1. APPLICATION NUMBER I To *f MwrfWd »> Carpi
2. NAME AND ADDRESS OF APPLICANT
3 NAME. ADDRESS. ANO TITLE OF AUTHORIZED AGENT
None
aurinc SHIMMM r>our«
Fred R. Harris
852 Nest Branch Road
Blue Harbor, Maryland
rutclmi* no. aunttf eutu
2170
Statement of AutMfunion: I Mreov d«mn«« »"S •utMrin
I of this oormit
•uoowwwl information in miooon
A c.301) S85-2779
A C I I ,^_____
lOffitfl
to «et M> mv
i mna t» (urnivi. u»»n r«aiM«i,
DATE
4. DETAILED DESCRIPTION OP PROPOSED ACTIVITY
«•. ACTIVITY
Build timber bulkhead and pier and fill
•B. PURPOSE
To provide boat access and prevent erosion of shoreline
place of residence.
4c. DISCHARGE OP OREOGEO OR PILL MATERIAL
Approximately 200 cubic yards of upland fill will be placed between new bulkhead and
existing shoreline.
ENG FORM 4345, Apr 83
EDITION OP 1 OCT 77 IS OtSOLCTE
E-l
(P'OOOnwir OAEN CWO Ml
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Appendix E
Dredged Material Permit/Project Review Manual
«-S, NAMES AND ADDRESSES OF ADJOINING PROPERTY OWNERS. LESSEES. ETC.. WHOSE PROPERTY ALSO AOJOINS'TME WATERWAY
Mary L. Clark
850 West Branch Road
Blue Harbor, Maryland 21703
(301) 585-8830
Harry N. Hampton
854 West Branch Road
Blue Harbor, Maryland 21703
(301) 585-3676
C.WATERBODY AND LOCATION ON WATERBOOY WHERE ACTIVITY EXISTS OR IS'PROPOSED
West Branch of the Haven River on Blue Harbor.
7. LOCATION ON LAND WHERE ACTIVITY EXISTS OR IS PROPOSED
ADDRESS
852 West Branch Road
STREET, ROAD. ROUTE OR OTHER DESCRIPTIVE LUXATION
.King Edward.
Maryland
COUNTY
STATE
Town of Blue Harbor
LOCAL GOVERNING BODY WITH JURISDICTION OV
21703
ZIP CODE
. It any »or' the eetivny w«
SJlMO
it* the •Kitting work on th« arewingt.
1. Lin all eocroveit or certification! ana oeniait received from other federal, in
• rtcharfet or etnar activitm awcrioed in thii •pollution.
ISSUING AGENCY TYPE APPROVAL IDENTIFICATION NO. O
Town of Blue
Harbor Zoning BH2S172
Md DNR
Certification
DNR258WQ
•tenciet for eny structures, construction,
DATE Of APPROVAL DATE OF DENIAL
6/30/82
8/12/82
10. Aaeliutian It hocov m»o«
-------
Appendix F
EXAMPLE OF
PUBLIC . :OTICE FOR A f^RMIT APPLICATION
-------
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Appendix F
Dredged Material Permit/Project Review Manual
PUBLIC NOTICE
FOR PERMIT APPLICATION
US Army Corps
nf Fnn/nPPrc bsue Date: June 3- 1991
n 7 ? n Expiration Date: July 3. 1991
Portland District Q^ of Engineers Numben 071-OYA-5-009528
30 Day Notice Oregon Division of State Lands Number: RP - 4749
Interested parties are hereby notified that application has been received for a Department of the
Army permit for certain work in waters of the United States, as described below and shown on
the attached plan.
COMMENTS; Comments on the described work should reference the U.S. Army Corps of
Engineers number show, above and should reach this office no later than the above expiration
date of this Public Notice to become part of the record and be considered in the decision.
Comments should be mailed to the following address:
U.S. Army Corps of Engineers
ATTN: CENPP-PE-RP (Robert Rose)
P.O. Box 2946
Portland, Oregon 97208-2946
APPLICANT; Oregon International Port of Coos Bay
LOCATION; Coos Bay, river mile 55 to 15.0
PROJECT DESCRIPTION;
1. Maintenance dredging of 18 deep draft docks on Coos Bay. Dredging would typically
be carried out every other year, at the same time as the Corps of Engineers' dredging of the
navigation channel. Dredging would be carried out with a clamshell dredge and would occur only
within the timing window established by the Oregon Department of Fish and Wildlife in the
Oregon Division of State Lands permit for the project. Depth of dredging and the amount
dredged each cycle would vary with the facility, as shown on Table 1. Dredged material would be
discharged either at upland sites or at EPA-approved ocean sites, as described below.
2. Ocean disposal of material at EPA-approvcd Dredged Material Disposal Sites
(DMDS) "P and "H", as shown on Sheet 4. Based on prior sediment analyses, material from
docks A, B, and C (see Table 1 for names) would be discharged at Site F, while material from
the remaining docks would be discharged at Site H.
PURPOSE; Maintenance of adequate depth for access to and use of existing deep draft dock
facilities.
NOTES;
The proposed permit would be a renewal, with some modifications, of Department of the
Army permit OYA-071-5-006363, which expired January 31, 1991. Differences between the earlier
permit and that currently proposed include an upland disposal option and the inclusion of sevenil
docks not covered in the earlier permit.
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Appendix F
Dredged Material Permit/Project Review Manual
CENPP-PE-R
PN-009528
Sediment testing is being carried out according to the schedule shown in Table 1. The
samples Have been taken and are currently being analyzed. The results are expected to be
available within 14 days, and will be made available to Federal and State resource agencies at that
time.
In earlier testing, three docks (A, B, and C) qualified for ocean disposal on the basis of
Tier One (physical) sediment testing. Sediments at those sites are coarse-grained and low in
organic content, and therefore should not retain any contaminants.
Seven docks (D, E, J, K, M, N, and O) qualified for ocean disposal on the basis of Tier
n (chemical) testing. Sediments at these docks are finer-grained and higher in organic content.
However, the sediments at these docks were either free of contaminants or contaminants were
present at levels low enough to allow ocean disposal without biological testing.
Of the four docks v. Ii failed Tier II testing, three (docks G, H, and I) chose not to go
on to Tier in (biological) testing. Tier HI testing was carried out for dock L, the UNOCAL
dock, resulting in a finding that the material was suitable for in-water disposal.
DRAWINGS; Four sheets labeled 9528 (Coos Bay - Maintenance Dredging)
ADDITIONAL INFORMATION; Additional information may be obtained from Allan Rumbaugh.
Oregon International Port of Coos Bay, 326 Front Street, Coos Bay, Oregon 975420, telephone
(503) 267-7678, or by telephoning Robert Rose, Environmental Specialist, U.S. Army Corps of
Engineers at (503) 326-6995.
AirrHORrrY; This permit will be issued or denied under the following:
Section 10, Rivers and Harbors Act 1899 (33 U.S.C 403), for work in or affecting
navigable waters of the United States.
Section 103, Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C 1413),
for transport of dredged material for the purpose of dumping it into ocean waters.
SPECIAL CONDITIONS; The requested permit, if issued, shall be subject in part to the
following conditions:
a. Care shall be taken to prevent any petroleum products, chemicals, or other
deleterious materials from entering the water.
b. Work in the waterway shall be done so as to minimize turbidity increases in the water
that tend to degrade water quality and damage aquatic life.
F-2
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Appendix F
Dredged Material Permit/Project Review Manual
CENPP-PE-R
PN-009528
c. The permittee shall comply with the work timing restrictions established in Material
Removal/Fill Permit No. RP-4749 issued by the Oregon Division of State Lands.
d. If a bucket dredge of any type, including but not limited to grab or clamshell, dipper,
dragline, or backhaul bucket, is used, all digging passes of the bucket shall be completed without
any material, once in the bucket, being returned to the wetted area.
e. Land disposal of dredged material shall be accomplished behind adequately .maintained
protective berms, which will prevent the material from returning to the waterway.
£ The permittee shall advise Portland District Regulatory and Environmental Resource
Branch in writing at least two weeks before starting maintenance dredging activities (whether
using upland or in-water disposal) under the authority of this permit.
g. The permittee shall obtain the prior written approval of the Portland District
Regulatory and Environmental Resource Branch for each in-water discharge of dredged material
carried out under this permit
h. For each proposed in-water discharge of dredged material, appropriate sediment
testing shall be carried out upon samples of the material proposed for discharge. Sediment
testing requirements shall be based on Portland District's tiered testing approach. All aspects of
testing shall be as designated or approved by the Regulatory and Environmental Resource
Branch. This includes, but is not limited to:
The number and location of samples to be taken;
The level (tier) of testing to be initially carried out;
The need for further testing or retesting, either at the same level (tier) or at higher
levels;
The characteristics and/or substances to be tested for,
The protocols and detection levels or organisms to be employed in the
analyses;
Quality Appraisal/Quality Control measures to be employed; and
Documentation and reporting requirements.
Designation or approval of aspects of testing shall be on a case-by-case basis.
L The permittee shall contact Portland District Regulatory and Environmental Resource
Branch at least two weeks prior to any proposed sediment sampling for design of a sediment
sampling and testing plan or review of any permittee-designed plan. Since the results from one
level of testing may result in a determination that additional testing is required, we strongly
recommend that the permittee begin the testing process at least 4 months prior to the proposed
beginning of discharge operations.
F-3
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Appendix F
Dredged Material Permit/Project Review Manual
CENPP-PE-R
PN-009528
j. The final tier of testing shall be completed and the analytical results and
documentation delivered to Portland District Regulatory and Environmental Resource Branch at
least 30 days prior to the proposed date of discharge, to allow time for review of the results and
a determination as to the suitability of the material for in-water disposal
k. Dredged material from docks A, B, and C shall be discharged at Dredged Material
Disposal Site F. Dredged material from the remaining docks shall be discharged at Dredged
Material Disposal Site H, as shown on the attached drawings.
L You must have a copy of this permit available on the vessel used for the authorized
transportation and disposal of dredged material
m. When the District Engineer has been notified by a fishery agency that a filling
activity is adversely affecting fish or wildlife resources or the harvest thereof, and when the
District Engineer subsequently directs remedial ' casures, the permittee shall comply with such
directions as may be received to suspend or modify the activity, to the extent required to mitigate
or eliminate the adverse effect
WATER QUALITY CERTIFICATION; A permit for the described work will not be issued until
certification, as required under Section 401 of the Clean Water Act (P.L. 95-217), has been
received or is waived from the certifying state. Waiver will be deemed to occur if the certifying
state fails or refuses to act on the request for certification within 45 days. Attached is the state's
notice advertising the request for certification.
SECTION 404fb)fl) EVALUATION; The impact of the activity on the public interest will be
evaluated in accordance with the Environmental Protection Agency guidelines pursuant to Section
404(b)(l) of the Clean Water Act.
COASTAL ZONE MANAGEMENT ACT CERiiFICATION; A permit for the described work
will not be issued until the state has concurred with the applicant's certification that the described
activity affecting land or water uses in the Coastal Zone complies with the State Coastal Zone
Management Program. Section 307(c)(3) of the Coastal Zone Management Act of 1972. as
amended by 16 U.S.C 1456(c)(3) requires the applicant to provide a Certification of Consistency
statement. If the state fails to concur or object to the certification statement within six months.
state concurrence shall be conclusively presumed. Attached to this Public Notice is a notice of
application for Certification of Consistency with the State's Coastal Zone Management Program.
PUnLIC HEARING; Any person may request, in writing, within the comment period specified in
this notice, that a public hearing be held to consider this application. Requests for public
hearings shall state, with particularity, the reasons for holding a public hearing.
ENDANGERED SPECIES; Preliminary determinations indicate that the described activity will
not affect endangered species, or their critical habitat designated as endangered or threatened.
F-4
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Appendix F
Dredged Material Permit/Project Review Manual
CENPP-PE-R
PN-009528
under the Endangered Species Act of 1973 (87 StaL 844). Formal consultation under Section 7
of the Act is not required for the described activity.
CULTURAL RESOURCES; The described activity is not located on property registered or
eligible for registration in the latest published version of the National Register of Historic Places.
This notice has been provided to the State Historic Preservation Office.
EVALUATION; The decision whether to issue a permit will be based on an evaluation of the
probable impact including cumulative impacts of the described activity on the public Interest.
That decision will reflect the national concern for both protection and utilization of important
resources. The beneGt which reasonably may be expected to accrue from the described activity
must be balanced against its reasonably foreseeable detriments. All factors, which may be
relevant to the described activity will be considered including the cumulative effects thereof-
among those are conservation, economics, aesthetics, general environmental concerns, wetlands,
historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation,
shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy
needs, safely, food and fiber production, mineral needs, consideration of property ownership and,
in general, the needs and welfare of the people.
The Corps of Engineers is soliciting comments from the public; Federal, state and local agencies
and officials; Indian Tribes; and other interested parties in order to consider and evaluate the
impacts of this proposed activity. Any comments received will be considered by the Corps of
Engineers to determine whether to issue, modify, condition or deny a permit for this proposal.
To make this decision, comments are used to assess impacts on endangered species, historic
properties, water quality, general environmental effects, and the other public interest factors listed
above. Comments are used in the preparation of an Environmental Assessment and/or an
Environmental Impact Statement pursuant to the National Environmental Policy Act Comments
are also used to determine the need for a public hearing and to determine the overall public
interest of the proposed activity.
ADDITIONAL REQUIREMENTS: State law requires that leases, easements, or permits be
obtained for certain works or activity in the described waters. These State requirements must be
met,'where applicable, and a Department of the Army permit must be obtained before any work
within the applicable Statutory Authority, previously indicated, may be accomplished. Other local
governmental agencies may also have ordinances or requirements which must be satisfied before
the work is accomplished.
F-5
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Appendix F
Dredged Material Permit/Project Review Manual
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F-6
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Appendix F
Dredged Material Permit/Project Review Manual
9528 (Coos Bay - Maintenance Dredging)
PROPOSED: Annual-Maintenance Dredqinq
.IN: Coos Pay Mir.E: 5.5 to 15.0
NEAR: All Major Docks
COUNTY: Coos STATE: Oregon
°f C°°S
REGIONAL MAP
Figort 1
F-7
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Appendix F
Dredged Material Permit/Project Review Manual
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nppenuix r
Dredged Material Permit/Projea Review Manual
9528 (.Coos Bay - Maintenance Dredging;
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PROPOSED: Annual Maintenance Dredgi
IN: Coos Bay MILE: 5.5 to 15.0
NEAR: All Major Docks
COUNTY: Coos STATE: Oregon
APPLICANT: Oregon Int'l Port of Coos Bav
SHEET: 3 of
* .< 4Sfti
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Appendix F
Dredged Material Permit/Project Review Manual
9528 (Coos Bay - Maintenance Dredging)
PROPOSED: Annual Maintenance Dredging
IN: Coos Bay MILE: 5.5 to 15.0
NEAR: All Major Docks
COUNTY: Coos STATE: Oregon
APPLICANT: ORegon Int*1 .Port-of Coos Bay
SHEET: A of 4
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Appendix F
Dredged Material Permit/Project Review Manual
O
I »i I'M-'I MI • i
i \'\ ir< »••••• 11 •.
«.»«' \i I I ,
Date: June 3, 1991
Public Notice
The following shall constitute public notice by th»
OM«??*.°f Oregon that the Department of Environmental
£ SSI P?rfuant tto the requirements of Section 401 of
the Federal Clean Water Act of 1977, PL 95-217 has been
th «~. assuranc tha
the project described in Corps of Engineers Public
Inni?; M ^ - P71-QYA-5-009528 _ will not violate
nSS^S? vater ^ualltV standards. Comments regarding
SS!?f i6 Wa f r ?ua}ity effects of the proposed project
shall be sent within 30 days to the Department of
Environmental Quality, Water Quality Division 811 s W
-6th Avenue, Portland, OR 97204.
SA\WC7699 (1/17/91)
• II ..«• "....'.
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Appendix F
Dredged Material Permit/Project Review Manual
Oregon'
Notice of Certification of Consistency .
with the DEPT OF I AND
Oregon Coastal Management Program
CONSERVATION
Notice is hereby given that a certification has been DEVELOPMENT
filed with the Department of Land Conservation and
Development, as provided in Section 307 (c) of the Coastal
Zone Management Act, that the permit described in this
public notice will comply with the Oregon Coastal
Management Program and that the permitted activities will
be conducted in a manner consistent with that program.
Any person desiring to present views or considerations
pertaining to the permit's compliance or consistency with
the Oregon Coastal Management Program may do so by
providing his views in writing to the Division of State
Lands, 775 Summer Street, Salem, Oregon 97310, with in
twenty days of- publication of this notice.
REVIEW CRITERIA
Comments should address consistency with the applicable
elements of Oregon's Coastal Management Program. These
include:
Acknowledged LocaJ Comprehensive Plan
Statewide Planning Goals
Fill and Removal Law (when a state permit is
required)
ADEQUATE INFORMATION?
A copy of the consistency certification and information
supporting the certification are available through the
Department of Land Conservation and Development. If you
believe additional information is needed to make a
decision on this matter, please indicate this as soon as
possible. Requests for additional information must ~
describe why more information is needed to make the
consistency decision.
INCONSISTENT?
If you believe this permit is inconsistent with the
Oregon Coastal Management Program, you should list Lhe
reJevant policy (i.e., goal requirement or plan policy)
and explain brief Jy why you believe it is inconsistent.
You should also describe how the permit could be modified
to make it consistent if this is possible.
BARBARA ROB»-KI»
'Govvrivir
ET : sp !175 Court ?«*••'
Salem. OR «»7* 1i1
(503) 37.WV.5ti
*AX (303) 362-»-
F-12
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Appendix G
SPECIAL PERMIT CONDITIONS
EPA Region H and K
Generic Special Conditions for MPRSA Section 103 Permit
EPA Region IX
Checklist of Questions to Evaluate Sampling and Testing Plans
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Appendix G
Dredged Material Permit/Project Review Manual
Appendix G. EPA REGION II
GENERIC SPECIAL CONDITIONS FOR MPRSA SECTION 103 PERMIT
(A) That the dumping will be carried out in conformity with the goals, objectives, and
requirements of the EPA Criteria established pursuant to Section 102 of the Marine Protection
Research and Sanctuaries Act of 1972, published in 40 CFR 220 - 228.
(B) That any dredged material in the prosecution of the work herein authorized shall be
removed evenly and no large refuse piles, ridges across the bed of the waterway or deep holes that
may have a tendency to cause injury to navigable channels or to the banks of the waterway shall be
left. If any pipe, wire or cable hereby authorized is laid hi a trench, the formation of permanent
ridges across the bed of the waterway shall be avoided and the back filling shall be done so as not to
increase the cost of future dredging for navigation.
(C) This permit shall by no implication be construed to authorize or empower the grantee
therein to transport or deposit utc material herein declared from and to the points herein designated in
violation of the common law, or any Federal, State, County or municipal laws, ordinances or
regulations.
(D) Prior to the departure of a vessel from port for the transportation and disposal or
deposit of dredged material in the approved dump site, the U.S. Army Engineer District New York
located at 26 Federal Plaza, New York, New York 10278, will be notified by telephone. All calls
will be made to the Water Quality Compliance Branch at (212) 264-0165 on a 24-hour seven-day-a-
week basis. Calls for daytime disposal will be made 2 hours prior to departure of the vessel. Calls
for evening, weekend or holiday disposal must be made by 1500 hours of the preceding workday.
All .calls will be made to allow sufficient time to check and confirm permit status before the vessel
departs. By these phone calls, the permittee or his contractor will furnish the following information.
1. Permittee's name.
2. Permit Number.
3. Date of disposal operation.
4. Date of letter of authorization if applicable.
5. Trip Number.
6. Volume and general description of dredged material to be dumped.
7. Name and Owner of vessel and scow number.
8. The place of departure.
9. Location of the dump site (Mud Dump Site, KVK or OM Buoy).
10. The estimated tune of departure to the disposal site.
11. The estimated tune of arrival at the disposal site.
12. The estimated time of return to port.
13. Than name of the Corps of Engineers Inspector, when applicable.
14. Any specific requirements, deviations from schedules or observations encountered during
disposal operations including missing or off-position disposal buovs.
(E) The Corps of Engineers reserves the right to require inspectors to accompany all tows
to the dump site in the Atlantic Ocean to certify compliance with the conditions of this permit. The
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Dredged Material Permit/Project Review Manual
permittee will contact the Corps of Engineers Harbor Supervision and Compliance Section at (212)
264-9055 to arrange for the services of an inspector, if required, at least 24 hours hi advance of the
time the vessel will depart port for the dump site. All expenses connected with said inspections or
any other operations by the United States hi the interest of navigation or enforcing compliance to this
permit shall be borne by the permittee. No vessel will depart from port for the transportation and
disposal of dredged material as authorized by this permit unless a Corps of Engineers Inspector is on
board or has been specifically declined by the Corps of Engineers.
(F) The permittee or his authorized contractor will be required to fill out the enclosed
copy of "Monthly Transportation and Dumping Log." It is required mat every trip made under this
authorization be recorded and endorsed by the master of the tow or the person acting in such
capacity. This log is to be completed and returned to the address below no later than the 4th day
after each month of activity.
District Engineer
U.S. Army Engineer District, New York
ATTN: CENAN-OP-W
26 Federal Plaza
New York, New York 10278
(G) At least fourteen (14) days, but no more than thirty (30) days, prior to the commence-
ment of the initial dredging portion of the project, and each subsequent dredging portion of the
project, the permittee will notify the Chief, Water Quality Compliance Branch, using the enclosed
"Response Letter." The permittee will not commence any work until they have been notified of the
exact location of the disposal buoy by the Corps of Engineers.
(H) Further determination as to the acceptability of the dredged material for ocean
disposal will be required for each subsequent maintenance dredging after the initial dredging. This
reauthorization will depend upon the applicable criteria for ocean dumping and the availability of an
approved dump site. Requests for reauthorization must be submitted at least 20 days prior to the time
you wish to perform the maintenance dredging.
CO The "Mud Dump Site," as defined in the Environmental Protection Agency Final
Revision of Regulations and Criteria on Ocean Dumping; Federal Register: 11 January 1977, has its
corner points located at:
Latitude Longitude
40° 23' 48" N 73° 51* 28" W
40P 23' 48" N 73° 50' 00" W
40° 21f 48" N 73° 51' 28" W
40° 21' 48" N 73° 50' 00" W
NOTE: The dredged material may be deposited at available filling projects within the New York
District provided that the fill project has been authorized by a Department of the Army permit and
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Appendix G
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that such disposal has been properly coordinated with the New York District. Office: Telephone No
(212) 264-5622.
Further, it should be noted that this authorization would not preclude the applicant from using a
disposal technique outside the jurisdiction of this office should it become feasible during the life of
this permit.
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Appendix G
Dredged Material Permit/Project Review Manual
Appendix G. EPA REGION IX
GENERIC SPECIAL CONDITIONS FOR MPRSA SECTION 103 PERMIT
I. DREDGING OPERATIONS
A. [NAME OF PERMITTEE] ("the permittee) shall write to the Corps of Engineers
Regulatory Branch in [DISTRICT] to confirm when dredging is planned to begin.
Written confirmation shall be sent at least fifteen (15) days before initiation of
dredging activities under the authority of the MPRSA Section 103 Permit Number
[PERMIT NUMBER] ("the permit"). The permittee shall include a dredging
operations plan with the written confirmation. The dredging plan shall contain the
following information:
1. A copy of the dredging contract and a description of the dredging work, either
maintenance dredging or new construction dredging, authorized by the permit
Description of the dredging work should include information on:
a. " Proposed dredging procedures [FOR SUITABLE DREDGED
MATERIAL].
b. Proposed dredging procedures [FOR UNSUITABLE DREDGED
MATERIAL].
2. A list of key permittee and contract personnel associated with the project
(including dredging and disposal operations), their company affiliations, their
telephone numbers and emergency telephone numbers.
3. A list of all vessels, major dredging equipment and navigation equipment that
will be used for each dredging project, including bin and barge capacities. .
B. No later than fifteen (15) days before the dredging project begins, the permittee shall
submit a pre-dredging bathymetric condition survey to the Corps [DISTRICT]. The
survey shall be accurate to ± 0.1-foot and the exact location of all soundings shall be
clearly labeled on the survey chart
1. The survey shall be a detailed drawing of the dredging site showing the entire
dredging area, the location of any sediment not suitable for ocean disposal, and
the toe and top of the side-slopes.
2. The quantity of dredged material to be removed from each dredging area and
the side slopes shall be defined.
3. The dredging design depth and allowable overdredge depth shall be indicated
on the survey.
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4. The survey shall be signed by the permittee to certify that the data are ace; irate.
NOTE: The Corps District and/or EPA Region may determine that some portion of the
proposed dredged material is not suitable for ocean disposal. The permittee
may be required to remove and properly dispose of the unsuitable dredged
material first A special condition will have to be written to describe this
process for any project requiring special dredging. When contaminated
sediment is detected, a horizontal and vertical buffer area should be dredged
and removed with the contaminated sediments. This will ensure that all of the
contaminated material is removed before any ocean dumping is planned.
C. The permittee shall not allow dredged material or water in a barge or scow to spill
over the sides longer than [NUMBER] minutes at the dredging site. No more than
[NUMBER] percent of the dredged material or water in a barge or scow shall be
allowed to spill out of the barge or scow during transportation to the disposal site.
D. The permittee shall use an electronic positioning system for navigation at the dredging
site. The electronic positioning system shall have a minimum accuracy and precision
of ± 10 feet<3 meters).
E. The permittee shall submit a debris management plan to the Corps [DISTRICT] to
prevent disposal of solid debris at the [CORPS DUMP SITE ABBREVIATION] dump
site. The debris management plan shall include: sources and expected types of debris,
debris separation and retrieval methods, and debris disposal methods.
F. The permittee shall maintain a copy of the permit on all vessels authorized for
dredging, transportation and disposal of dredged material under this permit
G. The permittee shall have a qualified inspector present on the dredging vessel at all
times when the dredge is moving, actively excavating bottom sediments or placing
sediment in either a hopper or disposal barge or scow. The inspector shall be an
independent contractor, an employee of the permittee or a representative of the
permittee's dredging contractor. The inspector(s) shall be identified in the list of key
personnel as specified in Special Condition [NUMBER] above. The inspector shall
ensure that all permit conditions are obeyed. When the dredging project is completed,
the inspector shall certify that no permit violations occurred. If violation of any
permit condition occurs, the violation shall be reported to the Corps' [DISTRICT]
Regulatory Branch at [TELEPHONE NUMBER] and EPA Region [NUMBER] at
[TELEPHONE NUMBER] within 24 hours by the permittee based on the inspector's
notification.
H. Required contact with the U.S. Coast Guard (USCG).
•I. The permittee shall provide written notification to the Commander [NUMBER]
USCG District, [ADDRESS] and telephone notification to the USCG Marine
Safety Office (MSO) in [CITY], [STATE] at [TELEPHONE NUMBER] at
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least fifteen (15) days before the start of each dredging activity. Written
notification shall include the following information:
a. The location of the work site.
b. The size and type of equipment that will be performing the work.
c. Name and radio call signs for working vessels.
d. Telephone number for on-site contact with the project engineer.
e. The schedule for beginning and completing the project
2. If buoys are placed in any navigation channel, the permittee shall notify the
. USCG Aids to Navigation Branch at [TELEPHONE NUMBER] thirty (30)
days in advance of any hazard to navigation so appropriate information can be
published in the Local Notice to Mariners.
• 3. The permittee shall ensure that working vessel operators follow the Inland
Rules of Navigation or the USCG Vessel Traffic Control Service. All vessels
shall have the proper day shapes, navigation lights, and a marine band radio.
The permittee's contractor shall monitor VHF-FM channel 16 while
.transporting dredged material to the [CORPS DUMP SITE ABBREVIATION]
site and during the return trip. If there are any questions, the permittee should
contact the USCG at [TELEPHONE NUMBER].
4. The permittee shall inform the USCG Captain of the Port, MSO [CITY] at
[TELEPHONE NUMBER] at least twenty-four (24) hours in advance of any
anticipated activity which may restrict navigability within any channel or which
may endanger any bridge. The permittee shall provide the details of the
activity, including the location of work and the proposed time and date of the
commencement and completion of dredging.
H. DISPOSAL OPERATIONS
A. The permittee shall certify the accuracy of the navigation equipment proposed for use
during transportation to and from the [CORPS DUMP SITE ABBREVIATION] site.
The electronic positioning system shall have a minimum accuracy and precision of ±
16.5 feet (5 meters). This will require the use of at least 2 shore transponders to
Obtain an accurate fix for the center coordinates of the ocean dredged material disposal
site. Back-up stations should be planned if one of the primary shore transponders
fails. The center coordinates of the [CORPS DUMP SITE ABBREVIATION] disposal
site are: [LATITUDE] _° __._* North by [LONGITUDE] ° _.__' West (North
American Datum from 19_J, with a radius of [NUMBER] feet
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NOTE: A Global Positioning System (GPS) may be acceptable if coastal coverage is
adequate.
B. Before disposal of any dredged material, the permittee shall demonstrate the accuracy
of the navigation system by direct comparison with a known fixed point This fixed
point shall be [LOCATION ON NAVIGATION CHART SPECIFIED BY CORPS
DISTRICT]. The permittee may submit an alternate fixed point or calibration method
to the Corps [DISTRICT] for approval before initiation of dredging.
C. The permittee shall notify the USCG MSO one (1) hour before departing for the
disposal site. The telephone number for the USCG MSO in [CITY] is [NUMBER].
The notification shall include:
1. Name of permittee.
2. Permit number.
3. Name and identification of vessel(s; (hopper or tug and disposal barge or scow)
employed in the dumping operation.
4. Loading location of the material to be dumped.
5. Material to be dumped.
6. Time of departure from the dredging site
7. Location of dump site.
8. Estimated time of arrival at the disposal site and estimated time of departure
from the disposal site.
9. Estimated time of arrival at dredging site after the disposal operation.
D. During the disposal operations, the permittee shall conduct disposal operations so no
portion of the hopper dredge or disposal barge or scow is farther than [NUMBER] feet
([NUMBER] meters) from the center of the [CORPS DUMP SITE ABBREVIATION]
disposal site as defined in Special Condition [NUMBER] above.
1. The permittee shall require the master of any hopper dredge or tug used to haul
a disposal barge or scow to the disposal site to plot the continuous course of
each disposal trip once inside the [NUMBER]-foot radius disposal site
boundary.
2. All disposal vessel plots shall provide sufficient detail to display the vessel
track, including the time and position of the hopper dredge or disposal barge or
scow at the beginning and end of the disposal operation.
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3. The master of the vessel shall use latitude and longitude coordinates for all
plots.
B.
. POST-DREDGE REPORTING
The permittee shall send two (2) copies of the dredging site inspector's certification
report to the Corps [DISTRICT] documenting compliance with all general and special
conditions defined in the permit The dredging site inspector's certification shall
indicate whether any violations occurred during the dredging project, either at the
dredging site or during transportation and disposal operations. The certification report
shall be sent within thirty (30) days after completion of the dredging project
The permittee shall send two (2) copies of a post-dredging report to the Corps
[DISTRICT] within thirty (30) days after completion of the dredging project with the
following information:
1. Start date and completion date of the dredging project
2, Plots of all trips to the [CORPS DUMP SITE ABBREVIATION] disposal site.
3. Total cubic yards disposed at the [CORPS DUMP SITE ABBREVIATION]
site.
4. A detailed post-dredging condition survey with areas above project depth
(grade) shaded green, areas between grade and overdredge depth shaded
yellow, areas below overdredge depth that were not dredged shaded blue, and
areas dredged below the overdredge depth or outside authorized boundaries
shaded red The post-dredging survey shall be accurate to ± 0.1 feet and the
exact location of all soundings shall be clearly labeled on the survey chart
The survey shall be signed by the permittee certifying that the data are
accurate.
NOTE: The methods used to prepare the post-dredging survey should be similar to
those use in the predredging condition survey.
NOTE: One copy of the inspector's report and the post-dredging report should be sent
by the Corps [DISTRICT] to EPA Region [NUMBER] as soon as the reports
are received by the Corps [DISTRICT].
C. A copy of the post-dredging condition survey specified in Special Condition
[NUMBER] shall be sent to the National Ocean Service to update navigational charts.
The information shall be sent to the following address: Director, Charting and
Geodetic Services, ATTENTION: N/CG22, National Ocean Service, NOAA,
Rockville, Maryland 20852-3806.
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D. For every calendar year in which ocean disposal of dredged material occurs, the
permittee shall submit the following information to the Corps [DISTRICT! District
before February 1 of the year following the last disposal trip.
1. Permit number.
2. Mode of dredging.
3. Mode of transportation.
4. Form of dredged material.
5. Frequency of dumping.
6. Start date of dumping.
7. Completion date of dumping.
8. Chemical composition of dredged material.
9. Solubility of dredged material.
10. Density of dredged material.
11. pH of dredged material.
12. Percent sand, silt and clay in dredged material.
13. Method of packaging.
14. Method of release.
15. Procedure and site for tank washing.
16. Total cubic yards dumped.
NOTE: In the future, the Corps [DISTRICT] and EPA Region [NUMBER] may require
the permittee to submit this information in a database format to go directly into
EPA's Ocean Discharge Evaluation System (ODES) or a Dredged Material
Tracking System (DMATS) along with other permit administrative and
sediment testing data.
IV. COORDINATION WITH STATE OF [STATE] REGULATORY AGENCIES
A. This permit is not valid until the [STATE] Coastal Commission concurs that this
project is consistent with the State of [STATE]'s Coastal Zone Management Program
pursuant to Section 307(c) of the Coastal Zone Management Act
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3. The permittee shall obtain a State water quality certification or a waiver, pursuant to
Section 401 of the dean Water Act, from the [STATE] Water Quality Control Board.
V. COMPLIANCE WITH CLEAN WATER ACT SECTION 404
This permit is not valid for any activity which will result in a dredge and fill project
subject to regulations pursuant to Section 404 of the Clean Water Act
VI. INSPECTIONS
A. The permittee and his contractors shall allow inspectors from the Corps [DISTRICT],
EPA Region [NUMBER] or the USCG MSO to inspect all phases of the dredging and
disposal operations.
B. Upon request, the vessel trade plots and all disposal vessel logs or records shall be
made available to inspectors from the Corps [DISTRICT], EPA Region [NUMBER] or
the USCG MSO.
C. Upon request, the permittee and his contractors shall allow inspectors from the Corps
[DISTRICT], EPA Region [NUMBER] or the USCG MSO access to all records
pertaining to the authorized dredging project The records may be at the permittee's
premises, on a dredging barge, on a tug boast or on a disposal vessel.
VIL PERMIT LIABILITY
A. The permittee and the dredging contractor shall accept individual liability for their
actions under the MPRSA Section 103 permit (This needs to be written in the proper
legal language)
B. The permittee and the dredging contractor should sign the permit accepting individual
liability for the permit conditions.
NOTE: The conditions in Section Vn will help EPA and the Corps enforce violations
against both parties if a complaint is issued.
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Appendix <3
Dredged Material Pennit/Project Review Manual
Appendix G. EPA REGION IX
CHECKLIST OF QUESTIONS TO EVALUATE SAMPLING AND TESTING PLANS
1. Has the rite been dredged before?
a. How recently?
b. Were there any problems with previous dredged material disposal?
c. Is a copy of the testing report needed?
d. Can previous test results be used to determine the need for new testing?
e. Can previous test results be used to design the new sampling plan?
2. What is the proposed project depth, including the overdredge depth?
3. What is the total cubic yards of dredged material to be excavated?
a. What is the amount of dredged material to get to project depth?
b. . What is the amount of dredged material in the overdredge layer?
4. Is there a copy of a recent hydrographic condition survey?
a. Is the complete area proposed for dredging shown adequately, including all
side-slopes or relief cuts, U.S. Pierhead lines and other important boundaries?
b. Is the toe and top of all side-slopes marked clearly to show the outer boundary
of dredging?
c. Were the hydrographic soundings corrected for tides and checked for accuracy
and precision?
d. Are all soundings labeled clearly showing the exact point where the sounding
was taken?
e. Did the survey cover a reasonable area outside the proposed dredging area to
show surrounding conditions, wetlands, submerged vegetation, intertidal
mudflats or shellfish beds that could be affected by dredging?
f. Are the areas proposed for dredging shaded correctly?
Green = above project depth (grade).
Yellow = deeper than grade but less than overdredge dredge depth.
Blue = deeper than overdredge depth.
5. What are the estimated dates for initiation and completion of the project?
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6. Who arc the key personnel associated with project management, sampling, testing,
dredging and disposal.
7. What type of equipment is planned for use during the project?
a. What type of dredging equipment will be used?
b. What type of disposal vessel, tugs, scows, etc, will be used?
c. What is the precision and accuracy of the fathometer equipment used at the
dredging site?
d. What is the precision and accuracy of the navigation equipment to be used at
the dredging site and to navigate to and from the disposal site?
e. What is an estimate of the time required for a disposal trip?
8. Where is the proposed disposal site, its reference site and the control site used for
biological testing?
9. Are the number of cores in each sampling area and the number of sediment sampling
areas acceptable to characterize the proposed dredging area?
10. How will sediment samples be collected?
11. What physical, chemical or biological sediment tests could be required for this
project?
a. Her I - Existing Information, Contaminants of Concern and Compliance
b. Tier n • Water Column Evaluations and Theoretical Bioaccumulation Potential
c. Tier m - Biological Testing
d. Tier IV - Case-specific Testing
13. Is the list of chemicals of concern adequate or should the list be revised?
a. Have there been any pollution spills at or near the site?
b. Are there letters from USCG or the Harbormaster on spills?
c. Are there any discharge outfalls, drains, NPDES permits, RCRA sites or
Superfund sites near the site that could pollute the sediments?
14. What test species are required for suspended particulate phase and solid phase
bioassays?
15. What test species and chemicals of concern are required for bioaccumulation?
16. What QA/QC procedures are proposed?
17. Is the proposed report format adequate?
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18.— Has this project been coordinated with other Federal and State agencies?
19.— Will the State of California require any additional tests for this project?
20.— Is a meeting or a telephone call necessary to discuss this project with other agencies?
G-13
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Appendix H
EXAMPLE OF A
USAGE PERMIT EVALUATION AND DECISION DOCUMENT
AND USACE PERMIT
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Appendix H
Dredged Material Permit/Project Review Manual
PERMIT EVALUATION
AND
DECISION DOCUMENT
Reference No: 071-OYA-3-009528
(Coos Bay - Maintenance Dredging
and Ocean Disposal)
Concerning issuance of Department of the Army permit:
APPLICABLE STATUTORY AUTHORITY OR AUTHORITIES;
Section 10, Rivers and Harbors Act of 1899 (33 U.S.C. 403), for work in or
affecting navigable waters of the United States.
Section 103, Marine Protection, Research and Sanctuaries Act of 1972 (66
Stat. 1052; P.L. 92-532), for transport-of dredged material for the purtx -• of
dumping it into ocean waters.
APPLICANTi Oregon International Port of Coos Bay
LOCATION; Coos Bay, River Mile 5.5 to River Mile 15.0, in Coos Bay, Coos
County, Oregon.
WORK:
1. Maintenance dredging of 17 deep draft docks on Coos Bay, as shown on
Table 1. Dredging would typically be carried out every other year, at the
same time as the Corps of Engineers' dredging of the navigation channel.
Dredging would generally be carried out with a clamshell dredge and would
occur only within the timing window established by the Oregon Department of
Fish and Wildlife in the Oregon Division of State Lands permit for the
project. Depth of dredging and the amount dredged each cycle would vary with
the facility, as shown on Table 1. Dredged material would be discharged
either at upland sites or at EPA-approved ocean sites, as described below.
2. Ocean disposal of material at EPA-approved Dredged Material Disposal
Sites (DMDS) "F" and "H", as shown on Sheet 4 of the drawings submitted with
the application. Based on prior sediment analyses, material from docks "A",
"B", and "C- (see Table 1 for names) would be discharged at disposal site "F",
while material from the.remaining docks would be discharged at disposal site
"H."
PURPOSE AND NEEDI
The purpose of the project is the maintenance of adequate depth for vessel
access to and use of the existing deep draft docks in Coos Bay.
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Appendix H
Dredged Material Permit/Project Review Manual
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Appendix H
Dredged Material Permit/Project Review Manual
ENVIRONMENTAL RSSESSMENT fEA>
I. Alternatives
A. No action (no dredging).
The no action alternative would consist of both no Section 103 activity
(i.e., no ocean disposal), and no Section 10 activity (i.e., no dredging).
This alternative would result in the deep draft docks slowly silting in until
they became unavailable for their intended use. Hood chip and log exports
through Coos Bay and North Bend have decreased in the last several years, and
can be expected to decrease still further. However, even after those
decreases, the export of timber products will still be substantial, and
movement of general cargo should remain relatively constant. In addition, one
dock is now scheduled for work which will allow the import of about 900,000 ,
tons of. nickel ore per year. If maintenance dredging of these docks is not
carried out, these import and export opportunities will be lost. This would
have severe economic i«. _- r:ts both upon the Coos Bay area and upon the lai -r
area of southwestern Oregon.
B. Upland disposal only.
Upland disposal of all of the dredged material does not appear to be
practicable. The topography and hydrologic conditions in the area of Coos Bay
are such that virtually all of those areas which are flat enough and close
enough to the water to allow their use as a disposal site are either already
developed or are at least partially wetland. This upland disposal alternative
would made continued maintenance dredging considerably more expensive, if
possible at all, and would result in severe impacts on wetlands. Further, it
would be preferable to retain what upland disposal capacity does exist for the
disposal of contaminated material.
C. In-Bav disposal.
In-bay disposal has been practiced in the past for channel maintenance
dredging. However, the channel material consists of coarser, cleaner material
than would be found at most of the dredge sites proposed here. In-bay
disposal of the material expected to be found at the dredge sites might result
in unacceptable increases in turbidity, and could increase the potential for
bioavailability of any contaminants present in the dredged material.
D. Ocean disposal (where possible and appropriate*.
Dredging with ocean disposal would require authorization under both
Section 1O and Section 103. Material from dock "A" through dock "C" would be
discharged at EPA-designated dredged material disposal site (DMOS) "F", while
material from the docks further up-bay would be discharged at DMDS site "H".
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Appendix H
Dredged Material Permit/Project Review Manual
Ocean disposal would allow the maintenance dredging of these economically
important deep draft ports to be carried out at a reasonable cost and without
the filling of wetlands, the loss of disposal sites for contaminated material,
or the adverse effects that in-bay disposal might have. The benthic habitats
that would be affected have already been disturbed by disposal from channel
maintenance activities, and are of types which are common in the project area.
Obviously, ocean disposal would not be an option for material which failed
to meet the MPRSA Section 102 criteria (unless there was no way the material
could be discharged elsewhere, and a waiver of the criteria was obtained).
For-some of the smaller sites, dredging with upland disposal would be
appropriate. Typically, the amount of material removed from these sites
smaller sites is such that the material can be dewatered behind foerras on the
immediately adjacent property, and then sold for fill material or removed to
another location.
II. - Existing Physical/Chemical Characteristics and Anticipated Changes
A. Existing Characteristics.
The existing physical and chemical characteristics of the dredging and
disposal sites have been described in the Coos Bay, Oregon, Dredged Material
Disposal Site Designation: Final Environmental Impact Statement (U.S. Army
Corps of Engineers, 1985). (That report will hereafter be referred to as the
DMDS FEIS.) That information is hereby incorporated by reference.
B. "No effect" categories.
The project is expected to have no effect or a negligible effect upon the
following physical and chemical characteristics of the dredging and disposal
sites: Currents, circulation or drainage patterns; Water quality -(other than
suspended particulates and turbidity); Floodplain functions; Storm, wave and
erosion buffers; Erosion and accretion patterns; Aquifer recharge; Baseflow.
C. Substrate.
The project would result in the disposal of 50,000 to 60,000 yards of
material at the two disposal sites every two years. The material discharged
would be similar in grain size and other physical characteristics to the
material already present at the sites. Any finer material is expected to be
resuspended by winter wave and current action and slowly moved offshore. The
above amount is less than 10% of the amount discharged by the Corps of
Engineers in their maintenance dredging efforts. Therefore, the disposal
proposed here is not expected to have a substantial effect upon the type of
substrate present at the disposal sites.
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Appendix H
Dredged Material Permit/Project Review Manual
D. Suspended particulates; turbidity.
The project would result in temporary, localized increases in turbidity at
both the dredging and the disposal sites. Turbidity plumes should dissipate
within a few hours of the cessation of activities. This increase is expected
to have minimal adverse effects.
III. Existing Biological Characteristics and Anticipated Changes
A. Existing Characteristics.
The existing biological characteristics of the disposal sites have also
been described in the OMDS FEIS. That information is hereby incorporated by
reference.
B. Special aquatic sites.
There are no special aquatic sites in the vicinity of the areas that would
be dredged or near the ocean disposal sites. The proposed permit would
include a special condition requiring the applicant to inform Portland
District of the location of the proposed upland disposal site and receive
approval of that site prior to each upland disposal event. This would prevent
the discharge of dredged material on wetland areas.
c- Habitat for fish and other aquatic organisms.
The project would have minimal adverse effects upon habitat for fish and
other aquatic organisms, both at the dredging and at the disposal sites.
Obviously, benthic habitat at the disposal sites would be disturbed, and
benthic infauna could be buried. However, these areas are repeatedly
disturbed by the disposal of material from channel maintenance dredging, and
recolonization by opportunistic benthic organisms should be rapid. Dredging
would be carried out during the time window specified by the Oregon Department
of Fish and Wildlife.
???
D. Wildlife habitat .
The project is expected to have no effect upon wildlife habitat.
E. Endangered or threatened species.
\
It appears that there are "no threatened or endangered species occurring in
the areas that would be dredged. From the information gathered for the DMDS
FEIS, it appears that the only threatened or endangered species that may occur
within those ocean disposal sites is the grey whale, Eschrichtiua robustus.
The proposed disposal is not expected to have any effect upon that species, as
the work would typically be carried out during September through mid-November,
a period when the species is absent from the disposal area.
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Dredged Material Permit/Project Review Manual
F. Biological availability of possible contaminants in dredged or
fill material.
In general, the danger of contaminants in the dredged material entering
biological systems should be relatively low. The Coos Bay -estuary is not
heavily industrialized, there have been no major spill events, and the. types
of crops grown upstream do not require heavy applications of pesticides.
Therefore, total contaminant loading of Coos Bay sediments should be low.
Prior testing of material from the areas proposed for dredging under this
permit supports this view. (Testing results can be found both in the current
file and in the files for the earlier permit 006363.) Material from dock "A"
through dock "C" consists predominantly of marine sand, and is low in organic
content. This material is unlikely to accumulate contaminants. Material from
the remainder of the docks, while more fine-grained, is also relatively low in
organic content. Chemical testing of material from those latter docks has
shown that, in general, the sites are relatively clean. While some samples
have contained levels of tributyl tin or some polycyclic aromatic hydro~a ;ne
that exceeded the conservative PSDDA screening levels, most samples have not.
Biological testing of material from two of the docks has not shown any
substantial degree of toxicity.
The proposed permit would contain a special condition requiring the
applicant to consult with Portland District on testing and sampling
requirements. Chemical testing of those docks where the dredged material is
predominantly fine-grained will be required before each dredging and disposal
event until it is apparent that the site has been adequately characterized,
that the testing results are consistent from one year to the next, and that
the MPRSA section 102 tier one -reason to believe" criteria can be met.
Thereafter, chemical testing would be required every second or third dredging
cycle. Decisions on whether ocean disposal will be allowed would carried out
on a dock-by-dock and year-by year basis, to ensure that MPRSA Section 102
criteria are met. Thus, there appears little chance that other than trace
amounts of contaminants will enter biological systems.
IV. Existing Human Use Characteristics and Impacts
A. Existing Characteristics.
The existing human use characteristics of the area that might be affected
by the proposed dredging and disposal have also been described in the DMDS
FEIS. That information is hereby incorporated by reference.
B. ."No effect" categories.
The project is expected to have either no effect or a negligible effect
upon the following human use characteristics: Existing and potential water
supplies; Water conservation; Recreational or commercial fisheries; Other
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Dredged Material Permit/Project Review Manual
water related recreation; Aesthetics; Parks, national and historic monuments,
national seashores, wild and scenic rivers, wilderness areas, research sites,
etc.; Energy consumption or generation; Safety; Air quality; Noise;
Traffic/Transportation patterns; Cultural values (section 301(5) National
Historic Preservation Act); Land use classification; Prime -and unique farmland
(7 CFR Part 658); Food and fiber production; General water quality; Mineral
needs; Consideration of private property; Needs and welfare of the people.
C. Navigation.
The project would allow continued access to the deep draft docks in Coos
Bay. The project is not expected to result in any increase in the number of
vessel transits; rather it would allow the number of transits to be determined
by factors other than available dockside depth.
The actual dredging and disposal operations are expected to have a minimal
adverse effect upon commercial and recreational navigation. Close
coordination between dr«* 'oing contractors and dock and vessel owners can be
expected to keep navigational conflicts within acceptable limits.
D. Economics and Needs and welfare of the people.
Without the proposed dredging the local economy could suffer severe
adverse effects. In the DUDS FEIS it was estimated that as much as 50% of the
approximately 20,000 jobs available in the Coos Bay region are directly or
indirectly dependent upon shipping activity. Issuance of the proposed permit
would allow the further development and implementation of a long-term solution
to the dredging needs of the Coos Bay shipping community.
V. Summary of Secondary and Cumulative Effects:
Secondary and cumulative effects of the project are expected to be
minimal, with the exception of the secondary effects upon the regional economy
of southwest Oregon. These secondary economic effects will be positive./
FINDINGS
I. Based on the receipt of chemical sediment test results (i.e., a full
description of the composition of the material proposed for ocean disposal), a
complete application was received on July 1, 1991, on the strength of previous
sediment testing results. A public notice describing the project and using
information from that earlier sediment testing was issued on June 3, 1991.
That notice was sent to all interested parties including appropriate state and
Federal agencies. The public notice stated that sediment testing results were
expected to be available approximately 2 weeks after the date of the notice
and would be provided to the resource agencies at that time. As noted above.
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we did not receive chemical testing results until July 1, 1991. Test results
were made available to EPA as soon as they became available. On the basis of
a written request by NMFS, we extended the comment period for federal resource
agencies until August 5, 1991. Test results were transmitted to NMFS and
USFHS in our letter of July 26, 1991, the delay being the result of incorrect
calculations of mercury levels and the time required to obtain the correct
values from the testing contractor. All comments received on this action have
been reviewed, and they are summarized and addressed below.
A. Summary of comments received.
1. Federal agencies:
a. U.S. Environmental Protection Agency (EPA)
EPA responded to the public notice in a letter dated July 16, 1991. In
that letter EPA made the following recommendations:
•1) That it be made explicit in the permit that development
of sampling and analysis plans, etc. must be coordinated with and approved by
EPA as well as-by Portland District.
2) That they receive notification of the actual volume of
material from each disposal activity that goes to ocean sites.
3) That condition h. of the special conditions proposed on
the public notice be changed to show that testing will follow Corps- and EPA-
approved approaches, e.g., the Green Book (the Evaluation of Dredged Material
Proposed for Ocean Disposal: Testing Manual) as supplemented by regional
practices and the best professional judgement of Corps and EPA technical
experts.
4)' That a section be included stating that "impact of the
proposed disposal in the ocean will be evaluated in accordance with the EPA
criteria pursuant to section 102 of the Marine Protection, Research and .•
Sanctuaries Act."
Finally, EPA approved the ocean disposal of material from docks "A", "B",
and "C" based on the coarse grain size of the material present and the low
potential of contamination, and the disposal of material from dock "L" based
on the,biological testing carried out in late 1990. EPA stated that it would
review the testing results for the other docks and provide suitability
decisions on those docks by separate correspondence.
Portland District Response:
In general, we concur with these comments. However, regarding the first
comment, we do not believe it necessary that EPA have approval authority for
sediment testing plans. He intend to maintain the existing close coordination
which has occurred during the development of these plans in the past.
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However, we believe that the regulations for sections 102 and 103 of the MPRSA
do not provide testing plan approval authority to EPA, and further believe
that since the final responsibility for the adequacy of testing plans rests
with Portland District, the final decisions on those testing plans must also
be made by the District. EPA will, of course, retain its Section 102 criteria
concurrence authority.
b. National Marine Fisheries Service (NMFS) and U.S. Fish and
Wildlife Service (USFWS)
NMFS requested a 30-day extension of the comment period in a letter dated
July 2, 1991, as a .result of which we extended the comment period for Federal
agencies until August 5, 1991. In a telephone conversation on August 5 (and
in a letter dated August 5 and received August 7, 1991), NMFS requested an
additional two-week extension, stating that they had not received the sediment
testing results until July 29, 1991. In that August 5 telephone conversation,
Portland District staff stated that additional extensions did not appear to be
possible under the exisu*...4 memoranda c. agreement, and urged NMFS to (if
their comments on the sediment testing were not ready) at least submit their
comments regarding the decision-making framework that the proposed permit
would establish. On August 9, 1991, Portland District staff contacted NMFS
staff and informed them that under the existing memoranda of agreement,
extensions beyond an additional 30 days were not possible, and requested that
they forward their comments as soon as possible. Those comments were received
in a letter dated August 14, 1991.
In that August 14 letter, the only comment that addressed the proposed
permit (rather than individual suitability decisions) recommended that the
Corps meet with concerned Federal and State agencies to better define the
District's approach to sediment testing and to better -define the level at
which resource agency review and recommendations should be submitted." That
letter also stated, in effect, that if the Corps decided to issue a permit
without adhering to their (NMFS-) disposal recommendations, NMFS would want to
elevate the decision.
NMFS' disposal recommendations included:
1) Biological testing for material from docks "I", "J",
"K", and "N", based on tributyl tin levels above or near the PSDDA screening
level.
2) Further testing of one area of dock "M" to isolate an
area of contamination there, with upland disposal of the contaminated
material.
USFWS made a verbal request for a 30-day extension of the comment period.
As noted above, we extended the comment period for Federal agencies through
August 5, 1991. On August 5 USFWS staff contacted Portland District by
telephone, requesting an additional two-week extension. In that telephone
conversation, Portland District staff stated that additional extensions did
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not appear to be possible under the existing memoranda of agreement and urged
USFWS to submit their comments regarding the decision-making framework that
the proposed permit would establish. On August 9, 1991, Portland District
staff contacted USFWS staff and informed them that under the existing
memoranda of agreement extensions beyond an additional 30 days were not
possible, and requested that they forward their comments as soon as possible.
Those comments were received in a letter dated August 13, 1991.
The USFWS response contained only one recommendation addressing the
permit; that sediment testing be required prior to dredging in each of the
three years in which ocean disposal could be expected, and that USFWS have the
opportunity to review the results.
The remainder of the USFWS response consisted solely of recommendations on
testing and disposal for material from individual docks. Those recommendations
included:
1) Biological testing of material from docks "I", "J",
"K", and "NM, based on tributyl tin levels above or near the PSDDA screening
level.
2) Upland disposal of material from dock "M" (apparently
for all areas rather than just the area confirmed to be contaminated),
3) Upland disposal of material from dock "L". Biological
testing had been carried out for this site in late 1990, and EPA had concurred
that the material was suitable for ocean disposal.
4) Biological testing of material from dock "E", based
upon a DDT level in one sample that exceeded the PSDDA screening level.
Portland District Response
Portland decision believes that having the meeting recommended by NMFS is
not necessary and would not lead to additional protection of marine resources.
Portland District intends to continue to supply NMFS and USFWS with sediment
testing results and to allow opportunity for their review and comment, and
welcomes their recommendations. However, the NMFS response makes it clear
that they believe they should have some form of approval authority over
individual ocean disposal suitability determinations. Given the section 102
criteria test concurrence authority that EPA already has, we see no purpose in
extending disposal approval authority to two additional agencies, nor is there
any regulatory requirement to do so.
Regarding NMFS' explicit invocation of the 404q MOA in its letter (and
DSFWS implicit invocation of that document in its letter), we believe that the
issue of whether a permit should be issued is separate from the individual
decisions on ocean disposal suitability. Portland District staff repeatedly
suggested to NMFS and USFWS that they submit their comments regarding the
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Dredged Material Permit/Project Review Manual
decision-making framework that the permit would establish, rather than waiting
for sediment test results and commenting only on whether they believed the
material from a given dock to be suitable for ocean disposal. However, the
point of whether individual ocean disposal suitability determinations should
be considered elevatable is rendered moot by the fact that 'both letters were
received after the end of the extended comment period and that: the MO&s do not
provide for an extension of more than 30 days.
NMFS' and USFWS testing and disposal recommendations for specific docks
will be considered in detail in the MPRSA section 102 criteria determinations
which will be prepared and forwarded to EPA Region X for review.
2. State and Local Agencies.
a. Oregon Division of State Lands, has authorized the project
in Removal/Fill permit RF-4749 (revised).
b. Tne Ore'.; .-n Department of Environmental Quality has not
responded within the 60-day period specified by 33 CFR 325.2(b)(1)(ii).
Therefore, Hater Quality Certification is deemed to have occurred. A
telephone check with ODSL verified that the State has no objection to the
issuance of the Department of the Army Permit.
c. The Department of Land Conservation and Development has
concurred with the applicant's certification that the project is consistent
with Oregon's Coastal Zone Management Program.
3. Organizations. No responses have been received.
4. Individuals. No responses have been received.
B. Evaluation.
1. I have reviewed and evaluated, in light of the overall public
interest, the documents and factors concerning this permit application as well
as the stated views of other interested agencies and the concerned public. In
doing so, I have considered the possible consequences of this proposed work
and/or activity in accordance with regulations published in 33 CFR Part 320
and 330 and 40 CFR Part 220.
2. Evaluation of Compliance with MPRSA Section 102 criteria
(restrictions on ocean disposal, 40 CFR 227).
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Dredged Material Permit/Project Review Manual
a. Subpart B - Environmental Impact (40 CFR 227.4-13).
1) The dredged material discharged at ocean sites will
not contain: high-level.radioactive wastes, materials produced or used for
radiological, chemical or biological warfare; materials whose description is
insufficient to allow application of the environmental impact criteria in this
part; or persistent inert synthetic or natural material which would float or
remain in suspension.
2) The dredged material discharged at ocean sites, will not
contain the following constituents in other than trace amounts: organohalogen
compounds; mercury and mercury compounds; cadmium and cadmium compounds; oil
of any kind or in any form; known or suspected carcinogens, mutagens or
teratogens. Upland disposal will be required for material containing any of
these constituents in greater than trace amounts.
3) T - discharge of material will not damage the ocean
environment as a result of the amount of material discharged, nor will it
result in a serious reduction of amenities.
4) The discharged material and the act of its
transportation and discharge will not represent or result in an unacceptable
interference with fishing or navigation. The discharged material will not
represent a danger to shorelines or beaches.
b. Subpart C - Need for Ocean Dumping (40 CFR 227.14-16).
There are no practicable alternative locations and methods of disposal
available which have less adverse environmental impact or potential risk to
other parts of the environment than ocean dumping.
c. Subpart D - Impact of the Proposed Dumping on Esthetic,
Recreational and Economic Values (40 CFR 227.17-19).
Ocean dumping of the dredged material will not result in unacceptable
adverse effects on esthetic, recreational or economic values, including:
recreational use and values of ocean waters, inshore waters, beaches and
shorelines; recreational and commercial values of living marine resources;
nonquantifiable aspects of esthetic, recreational and economic values.
d. Subpart E - Impact of the Proposed Dumping on Other Uses
of the Ocean (40 CFR 227.20-22).
Ocean dumping of the dredged material will not result in unacceptable
adverse effects on other uses of the ocean, including: commercial and
recreational fishing in open ocean, coastal and estuarine areas; commercial
and recreational navigation; actual or anticipated exploitation of living
marine resources; actual or anticipated exploitation of non-living marine
resources; and scientific research and study.
H-12
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Appendix H
Dredged Material Permit/Project Review Manual
C. Determinations.
I. MPRSA Section 102 Criteria Compliance Review (40 CFR 227).
The proposed ocean disposal of dredged material, with fche inclusion of the
operating procedures and conditions contained in the State and Federal
permits, complies with the criteria established by Section 102 of the Marine
Protection, Research and Sanctuaries Act of 1972.
2. Finding of No Significant Impact (FONSI) (33 CFR Part 230.10).
The significance of the work and its environmental effects described above
have been evaluated in accordance with 33 CFR 230 and 320-330. The proposed
work and/or activity will not significantly affect the quality of the human
environment. Therefore, an Environmental Impact Statement has not been
prepared.
3. Public Interest determination.
I find that issuance of the Department of Army permit, as described in the
final permit -format with special conditions as established as of this date, is
based on thorough analysis and evaluation of the various factors affecting the
public interest; that there are no reasonable alternatives available to the
applicant that will achieve the purposes for which the work is being
constructed; that the proposed work is in accordance with the overall desires.
of the public as reflected in the comments of Federal, State and local
agencies and the general public; that the proposed work complies with
established State and local laws, regulations and codes; that the issuance of
this permit is consonant with national policy, statutes, and administrative
directives; and that on balance the total public interest should be served by
the issuance of a Department of Army permit for the described work.
ote
H-13
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Appendix H
Dredged Material Permit/Project Review Manual
OCEAN DISPOSAL SUITABILITY DETERMINATION
PERMIT 009528
Fall, 1991, Dredging Window
September 13, 1991
DISCUSSION
1. Docks "A", "B", and "C" - T-Dock, Roseburg Forest Products, and
Ocean Terminals:
Physical testing results for these docks show that the material
present continues to be coarse material, low in oil and grease and total
volatile solids. At dock "C-, the furthest up-bay of the three, fines
constituted less than 7.5% of the sample by weight, with an oil and grease
level of 20 ppm ar. •» total volatile solids level of 1.5%.
2. Dock "D" - Western Fuel Oil:
The only value of concern was total DDTs, at 12 ppb. All other values
were below all screening levels. While above the PSDDA screening level,
this is considerably below the level at which most researchers have begun
to see effects. DDTs were not detected in the June, 1989, chemical
testing of the site, at a detection level 1.5 ppb.
Biological testing of this site was carried out in August, 1990. The
samples from this site served essentially as one of several reference
sediments for the bioassay testing on material from the UNOCAL dock. • That
testing showed no significant level of mortality for the Western Fuel
sample compared to controls or the other reference sediments.
3. Dock "E" - Oregon Chip Terminal:
The only value of concern was total DDTs, at 46 ppb, found in one of
the two samples. This level exceeds Portland District's level of concern,
and approaches levels at which some researchers have found apparent
effects, as well as the PSDDA maximum level. However, the detected level
may be anomalous. DDTs were detected in the other sample .from this site,
but only at the detection limit of 2.0 ppb. In the 1989 chemical testing
of the site, DDTs were not detected at a detection limit of 2.1 ppb. As
there should have been no introduction of DDTs to the site in the last two
years, we are inclined to view the 46 ppb level as not representative of
that portion of the site.
4. Dock "F" - Bayshore Dock:
Upland disposal only. Ocean disposal not requested.
H-14
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Appendix H
Dredged Material Permit/Project Review Manual
5. Docks "G" & "H" - Champion Dock and Central Dock:
These docks were dredged in July, 1991, with the material going to an
upland disposal site. Ocean disposal is not requested at this time.
7. Dock "I" - Hillstrom Dock:
Both chemical and biological testing were carried out. The biological
testing was required on the basis on somewhat elevated levels of fluorene,
phenanthrene, fluoranthene, pyrene, and chrysene found in chemical testing
done in 1989.
In the current chemical testing the only organics that were detected
were phenanthrene, at 108 ppb, and pyrene, at 64 ppb, both well below even
the PSDDA screening levels. The only species which exceeded the PSDDA
screening levels was chromium, at 95 ppm. This is a normal background
level for Coos Bay, and results from the chromium-rich black sands found
in the sediment. Chromium in that .form is essentially non-bioavailable.
The only other species that approached the PSDDA screening levels were
silver, at 1.0 ppb, and tributyltin, at 22 ppb.
In the bioassay work, unfortunately, a reference sediment sample was
not taken, so statistical analysis is not possible. However, survival in
the control groups was quite high ( > 90%) for all tests, and survival in
the test groups was essentially identical to those in the controls.
Growth in the test group in a 20-clay Neanthes test was somewhat reduced
from that in the control group. Survival, however, was 100% for both
groups.
8. Dock "J" - Portland Dock:
The only value of concern was for tributyltin, at 36 ppb. Material
from this site is similar to that for Dolphin Terminals, dock "N", which had a
tributyltin level of 78 ppb. Therefore, the discussion of the results for
that dock can also be applied here.
9. Dock "K" - Coos Bay Docks:
All values were below all screening levels.
1O. Dock "L" - UNOCAL:
Previously found suitable for ocean disposal on the basis of
biological testing carried out in August, 1990.
H-15
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Appendix H
Dredged Material Permit/Project Review Manual
11. Dock "M" - Weyerhaeuser:
Samples 2 and 3 tested clean, will all values being below all
screening levels.
Sample 1 contained elevated values for total DDTs, dibenzofuran and a
number of PAHs. Values of concern in Sample 1 were:
Napthalene - 3359 ppb
2-roethylnapthalene - 1969 ppb
Acenaphthene - 4141 ppb
Fluorene - 5859 ppb
Phenanthrene - 15313 ppb
Anthracene - 7344 ppb
Pluoranthene - 9375 ppb
Pyrene -' 4734 ppb
Benzo(a)anthracene - 1391 ppb
Chrysene - 1207 ppb
Benzyl alcohol - 328 ppb
Dibenzofuran - 4000 ppb
Total DDTs- - 18 ppb
12. Dock "N" - Dolphin Terminals:
The only value of concern was the tributyltin level, at 78 ppb. With
the exception of low levels of fluoranthene and pyrene (202 and 121 ppb,
respectively), all other organics were undetected.
Biological testing of this site was carried out in August, 1990. The
sample from this site 'served essentially as one of several reference
sediments for the bioassay testing on material from the UNOCAL dock. That
testing showed no significant level of mortality or abnormality for the
Dolphin Terminals sample compared to controls or the other reference
sediments. There have been no known sources of tributyltin input at this
dock between the 1990 bioassays and the 1991 chemical testing. Therefore,
the bioassay results can still be considered valid.
13. Dock -O- - USCG Cutter CITRUS Dock:
Previously found suitable for ocean disposal on the basis of chemical
testing carried out in late 1990.
14. Dock "P" - USCCG Cutter ORCAS Dock:
Upland disposal only. Ocean disposal not requested.
15. Dock "Q":
No dock has been assigned to this letter.
H-16
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Appendix H
Dredged Material Permit/Project Review Manual
16. Dock "R" - City Dock
Upland disposal only. Ocean disposal not requested.
DECISION
1. Regarding the Dock "M" (Weyerhaeuser Dock) material represented by sample
#1, we find that this material is unsuitable for ocean disposal due to its
elevated levels of dibenzofuran and a number of PAHs. We understand that
the area represented by that sample is being resampled in more detail to
confirm and delineate the contaminated area. In the absence of that data,
we find that all material from the edge of the dredge area out to a line
midway between the sites of sample #1 and sample #2 should be discharged
at an upland site.
2. We find for the reasons given in the'discussions above, that material • ."»m
the following areas is suitable for ocean disposal without management
restrictions. This finding applies only to the dredging window extending
from September 15, 1991 through January 15, 1992.
Dock "A"
Dock "B"
Dock "C"
Dock "D"
Dock "E"
Dock "I"
Dock "J"
Dock "K"
Dock "L"
Dock "M"
Dock "N"
Dock "O"
T-Dock - Entire area
Roseburg Forest Products - Entire area
Ocean Terminals - Entire area
Western Fuel Oil - Entire area
Oregon Chip Terminal - Entire area
Hillstrom Dock - Entire area
Portland Dock - Entire area
Coos Bay Docks - Entire area
UNOCAL - Entire area
Weyerhaeuser - Area represented by samples #2 and #3
(see 1. above)
Dolphin Terminals - Entire area
USCGC CITRUS Dock - Entire area
Environmental Specialist\
Date
^approving
H-17
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Appendix H
Dredged Material Permit/Project Review Manual
DEPARTMENT OK THE AKMY PERMIT
Permittee: OIUKiON INTHKNAT1ONAI. PORT Ol' COOS HAY
Permit No: u7l-OYA-3-(KH).S2S
Issuing Office: US. ARMY CORPS OF HNGINI-I-KS. PORTLAND DISTRICT
NOTE: The term "you" ""^ its derivatives, as used in this permit, means the permittee or any future transferee. .The term "this
oflkc" refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitted activity or
Ibc appropriate official of that office acting under the authority of the commanding officer.
You arc authorized 10 perform work in accordance with the terms and conditions specified below.
Protect Description:
1. Maintenance dredging of 17 deep draft docks on Coos Hay. Dredging will be carried out with a clamshell dredge and will
occur only within the liming window established by the Oregon Department of Fish and Wildlife in the Oregon Division of Slate
I^nds permit for the project. Depth of dredging and the amount dredged each cycle will vary with the facility, as shown on Table 1.
Dredged material will be discharged cither at upland sites or at EPA-dcsignatcd ocean sites, as described below.
2. Ocean disposal of material ai EPA-dcsignaied Dredged Material Disposal Sites (DMDS) F and II, as shown on Sheet 4.
Based on prior sediment analyses, material from docks "A". "B", and "C" (sec Table 1 for names) will be discharged at Site F. while
material from the remaining docks will be discharged at Site II.
fumosc: Maintenance of adequate depth for access 10 and use of existing deep draft dock facilities.
Drawings: i'our sheets labeled 1)528 (Coos Day - Maintenance Dredging)
Project Ijoeatton: Coos Hay. river mile 5.5 through 15.0, near Empire, North Uend and Coos Bay, Coos County, Oregon
Permit Conditions:
General Conditions:
1. The time limit for completing the work authorized ends on January 31. 1997. If you find that you need more time to complete
the authorized acitvity, submit your request for a time extension to this office for consideration at least one month before the above
date is reached.
2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of
this permit. You are not relieved of this required if you abandon the permitted activity, although you may make a good faith transfer
to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should
you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may
require restoration of the area.
3. If you discover any previously unknown historic or archcologicul remains while accomplishing the activity authorized by this permit,
you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to
determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places.
ENG FORM 1721, Nov 86 (33 CFR 325(Appcndix A))
H-18
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Appendix H
Dredged Material Permit/Project Review. Manual
I'crmiucc: OIU-GON tNTI:l NATIONAL I'OUT OF COOS HAY
1'crniii No: 07l-OYA-3-es not auihorixe any injury to ihe properly or rights others.
U. 'IWs permii does not authorize interference with any existing or proposed Federal project.
3. Limits of Federal IJabiliiy. In issuing lnis pemni lnc ,.-cUcra| (jtwcrnnicnl Pr°PCny§ W M tMhCr pBraii"al W un»wmi«":tl aclivilics or structures caused by the activity authorized
i». Designed or cunsirucium tlelkicncie.s with the permitted utirk.
H-19
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Appendix H
Dredged Material Permit/Project Review Manual
Permittee: ORHCiON IN'l I-UNA'I IQNAI POUT OF COOS HAY
Permit No: 07l-OYA-3-(i0952K
a. Care shall be taken lu prevent any petroleum products, chemicals, or oilier deleterious materials from entering the water.
b. Work in the waterway shall be done so as to minimize turbidity increases in the water that tend to degrade water quality
and damage aquatic life.
c. 'Ihe permittee shall eomply with the work liming restrictions established in Maicrial Removal/Fill Permit No. RP-4749 issued
by the Oregon Division of Slate louuls.
d. If a bucket dredge of any type, including but not limited to grab or clamshell, dipper, dragline, or backhaul bucket, is used.
alt digging passes of the bucket shall be completed without any material, once in the bucket, being relumed to ihe wetted area.
c. You must have a copy of this permit available on ihe vessel used for the authorized transportation and disposal of dredged
material
f. When the Districi Engineer has been notified by a fishery agency thai a discharge activity is adversely affecting fish or wildlife
resources or the harvest thereof, and when ihe District Engineer subsequently directs remedial measures, the permittee shall comply
with such directions as may be received to suspend or modify the activity, to the extent required to mitigate or climina!: ihe adverse
effect.
Upland Disposal
g. Upland disposal of dredged material shall be accomplished behind adequately maintained protective berms, which will prevent
the material from returning to the waterway.
h. The permittee shall advise Portland District Regulatory and Environmental Resource Branch In writing at least two weeks
before starling maintenance dredging activities that would utilize an upland disposal area. ITiat notification shall include ihe exact
location of the disposal area. If ihe disposal area has not previously been used under this permit, that notification shall also include
the following:
1) A USGS topographic map. scale 1:25.(XX) or less, showing ihe exact location of the disposal site.
2) A survey of the vegetation present at the disposal site, including photographic coverage where available, sufficient 10 assure
the District Engineer that the area is not a jurisdictiona! wetland under section 404 of the Clean Water Act.
3) Disposal plans, construction drawings or other documentation sufficient .10 assure the District Engineer that Ihe dredged
material will not return to ihe waterway.
Ocean Disposal
L 'ihe permittee shall obtain the prior written approval of the Portland District Regulatory and Environmental Resource
Uranch for each in-water discharge of dredged material carried out under this permit.
j. For each proposed in-waicr discharge of dredged material, appropriate sediment testing shall be carried out upon samples
of the material proposed for dbcteirge. All aspects u\' testing shall IK us designated or approved by the Regulatory and Environmental
Resource llmnch. 'this includes. Inn is not limited to:
The number and location of samples to be taken;
The type (physical, chemical or biological) of testing to be initially carried out;
The need for further testing or rcicsting;
The characteristics andAv substances to be tested for;
Ihe protocols and detection lex-els or organisms to be employed in the testing;
Quality Appraisal/Quality Control measures 10 be employed; and
Documentation and reporting requirements.
H-20
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Appendix H
Dredged Material Permit/Project Review Mairoal
Permittee: ORI-CiON INTI-KNA'I IONAI. PORT Ol-' COOS I'.AY
rermil No. 07l-OYA-3-(MM)S2B
Designation or approval ol aspects ol testing shall IK on a case-by-easc basis.
k. '1 he pcnniucc shall contact Portland District Regulatory and Environmental Resource Branch ai least two weeks prior to
any proposed sediment sampling tor design of a sediment sampling and testing plan or review of any permittee-designed plan. Since
the results from one typo of testing may result in a determination that additional testing is required, we strongly recommend that
the permittee begin the testing process at least 4 months prior to the proposed beginning of discharge operations.
1. 'llic final tests shall be completed and the analytical results and documentation delivered to Portland District Regulatory and
Environmental Resource Hranch at least 30 days prior to the proposed date of discharge, to allow lime for review of the results and
a determination as to the suitability of the material lor in-watcr disposal.
n. Dredged material from docks "A". "IT, and "C" shall be discharged at Dredged Material Disposal Site F. Dredged material
from the remaining docks shall be discharged at Dredged Material Disposal Site H. as shown on the attached drawings.
Reporting
a During January of each year, the uppuc;.:u shall submit to Portland District Regulatory and Environmental Resource Uranch
an cnd-of-year report showing for each dock, for the prior calendar year:
1) 'llic amount of material dredged;
2) 'the location of the disposal site used; and
3) 'llje dates of dredging and disposal.
Operating Procedures For Ocean Disposal
Determination of sediment testing requirements and design of the sampling plan will
be carried out by Portland District in consultation with EPA Region 10. The applicant
may also submit a testing program and sampling plan for review. Sediment testing
requirements will be based on the evaluation of Dredged Material Proposed for Ocean
Disposal: Testing Manual (the "Green Book") as supplemented by regional practices and
best professional judgement by Corps and EPA technical experts. In general, testing of
the chemical characteristics will be required of all sites before each proposed ocean
disposal event (except docks "A", "B", and "C", for which testing of the physical
characteristics will be required). The need for biological testing of the material at
a given dock will be determined after review of the results of both current and past
chemical testing. (For docks "A", »B", and "C", the need for chemical testing will be
determined after review of the results of the physical testing.)
When final testing results are received, Portland District will distribute those
results to EPA Region 10, USFWS and NMFS, and provide a 14-day review period. At the
end of that period. Portland District will consider the comments made by the above
agencies and evaluate the impact of the proposed ocean disposal event in accordance with
the EPA criteria established pursuant to Section 102 of the Marine Protection, Research
and Sanctuaries Act of 1972. That evaluation will be forwarded to EPA Region 10 for its
review and decision on concurrence. EPA will advise Portland District of its decision
within 14 days.
If EPA Region 10 does not find the material proposed for discharge to be suitable
for ocean disposal, further processing will be as specified by 33 CFR 324.4(c) and (Uj .
H-21
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/ippenuix n
Dredged Material Pennit/Project Review Manual
I'wniillcc: OKHCiON INTI-iUNATIONAl. 1'OKT OI-" COOS HAY
Pcrnui No: 07i.QYA-3-flW.<>28
The above testing will be required before each proposed ocean disposal event until,
for a given dock, it is found that the material at that site has been adequately
characterized, that the test results are consistent from one year to year, and that the
material from the site has consistently been found suitable for ocean disposal.
Thereafter, some relaxation of testing requirements for that dock may, after
consultation with EPA Region 10, be found appropriate.
During January of each year, the applicant shall submit to Portland District
Regulatory and Environmental Resource Branch an end-of-year report. This report will
detail for each dock, for the prior calendar year, the amount of material dredged, the
location of the disposal site used, and the date's of dredging and disposal. Portland
District will provide a copy of this report to EPA Region 10.
H-22
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Appendix H
Dredged Material Permit/Project Review Manual
Permittee: OKI-dON INTI-KNA'I IONAI. POUT ()!•'COOS HAY
Permit No: <)7|.QYA-3-(MW>28
c. Damage claims associated with any future modification, suspension, or re vocal ion of this permit.
4. Reliance on Applicant's Data: 'Ilie determination of this office thai issuance of this permit iff not contrary 10 the public interest
was made in reliance on the information you provided.
5. Ucevaluation of Permit Decision. 'ITus office may recvaluate its decision on this permit at any lime the circumstances warrant.
Circumstances that could require a rcevaluation include, but are not limited to, the following:
a. You fail to comply with the terms and conditions of this permit.
b. The information provided by you in support of your permit application proves to have been false, incomplete or inaccurate
(See 4 above).
c. Significant new information surfaces which this office did not consider in reaching the original public interest decision.
Such a revaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures
contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced
enforcement procedures provide for In* t- —j of an administrative order requiring you lo comply with the terms and conditions
of your permit and for the initiation of legal uctkxf where appropriate. You will be required to pay for any corrective measures
ordered by this office, and if you tail to comply with such directive, this office may in certain situations (such as those specified in 33
CITt 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost.
6. Extensions. General condition 1 establishes a lime limit for the completion of the activity authorized by this permit. Unless there
are circumstances requiring cither a prompt completion of the authorized activity or a rcevaluation of the public interest decision,
the Corps wilt normally give favorable consideration to request for an extension of this time limit.
Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit.
(PERMITTEE)
'Ihis permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below.
(DISTRICT ENGINEER) (DATE)
Charles A. W. I lines
Colonel, Corps of Engineers
District Engineer
When the structures or work authorized by this permit arc still in existence at ihe time the property is transferred, the icruu
conditions of this permit will continue to be binding on the new owncr(s) of the property. To validate Ihe transfer of'this perm-
the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below
(TRANSFEREE) (DATE)
H-23
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Appendix H
Dredged Material Permit/Project Review Manual
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-------
Appendix H
Dredged Material Permit/Project Review Manual
PROPOSED: Annual Maintenance Dredging
IN: Coos Bay MILE: 5.5 to 15.0
NEAR: All Major Docks
COUNTY: Coos STATE: Oregon
APPLICANT: Oregon Int ' 1 Port of Coos Bay
SHEET: 1 of 4
Pacific
Ocean
REGIONAL MAP
fit «•
H-25
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Appendix H
Dredged Material Permit/Project Review Manual
-------
Appendix H
Dredged Material Permit/Project Review Manual
9528 (.Coos Bay - Maintenance Dredging)
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PROPOSED: Annual Maintenance
IN: Coos Bay MILE: 5.5 to
NEAR: All Major Docks
COUNTY: Coos
APPL
SHEET
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OUNTY: Coos STATE: Oregon T^ \ -rV^^lfeS-I^W'
PPLICANT: Oregon Int'l Port of Coos Ba> %L'- ^L^V^^^^W-\
IIEET: 3of^ H27 rfraiii^H^-^lWlP
Px; i • "i: tri'-.•..) liWr- .-:{I.' "«• $w^f"" ••-):•••] *.^:- r-rfc;-. l?/J
h •'' .^s.-j-,, >s^;^.-;-.-iji , .-t ^.,^:,. hfc-^^-J-^i
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Appendix H
Dredged Material Permit/Project Review Manual
9528 (Coos Bay - Maintenance Dredging)
PROPOSED: Annual Maintenance Dredging
IN: Coos Bay MILE: 5.5 to 15.0
NEAR: All Major Docks
COUNTY: Coos STATE: Oregon
APPLICANT: ORegon Int'l.Port of Coos Bay
SHEET: A of 4
H-28
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Appendix I
EXAMPLE OF
PUBLIC NOTICE FOR A CIVIL WORKS PROJECT
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Appendix I
Dredged Material Permit/Project Review Manual
DEPARTMENT OF THE ARMY
•CATTI.C DISTRICT. CORPS OP CNQINCEMS
P.O. BOX C>370»
•KATTUe. WASHINGTON ••1X4
15-Oav
NFS
Public Notice Date: 9 February 1990
Cloving Date: 24 February 1990
Reference No.: CENPS-EN-PL-1
Ocean Disposal of Grays Harbor
Dredged Material
Interested parties are hereby notified that the O.6. Army
Corps of Engineers , Seattle District, is proposing to
transport dredged material from Grays Harbor for the purpose
of dumping it into ocean waters, as described below and
shown on the e<.:il3sed location map. This proposal is
pursuant to Section 103 of the Marine Protection, Research
and Sanctuaries Act of 1972 (86 Statute 1052, Public Law 92-
932) (hereinafter referred to as the ocean Dumping Act or
ODA)
notify the. public of the Corps proposal to
transport dredge material for ocean disposal and to
designate two ocean disposal sites to receive the material*
NAME AND LOCATION OF PROJBCT AND PROPOSED DISPOSAL SITES -
The project involves the construction of the widening and
deepening of the existing Grays Harbor navigation channel
from the ocean bar to Cosmopolis, Washington. Two disposal
sites are proposed to receive portions of this dredged. '
material, the Southwest Navigation Lane Ocean Dredged
Material Disposal Site (ODMDS) (hereinafter referred to as
the 3.9-mile site) and 8-Mile (6.95 nautical miles) ODMDS
site. The 3.9-mile site is a parallelogram shaped area
about 3.9 nautical miles offshore, with its corners at
NE124'13.81'W 46*52. 94'Nf SE124 ' 12 . 96'W 46*52. 17'N;
SW124*14.19'H 46'51.15'N; and NW124*14.95'W 46*51. 92'H.
The center of the circular 8-mile site is located at
124 * 20. 6 'W and 46*57.0'N with a radius of 0.4 miles and an
area of 0.5 sq. miles* (See location map).
- The work is described more fully in a May 1989
Environmental Impact Statement Supplement (EISS) . A
December 1989 Environmental Assessment (EA) contains
additional information on the sediments to be dredged. It
is proposed that both ODMDS sites would receive dredged
construction material totaling approximately 4,878,000 c.y.
1-1
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Appendix I
Dredged Material Permit/Project Review Manual
2.2SO.OOO «s.y. e\f «andy catarial from the bar
reach IB proposed to be placed at the 3.9-mile ocean »ite»
All bar material will be dredged by hopper dredge.
Approximately 2/198,000 c.y. of sandy silt and silt froa the
Hoquiam-Cow Point and Aberdeen reaches are proposed to be
placed at the 8-mile cite. Clamshell dredging will be used
for ttimmm two reaches. This represents a change from the
4,448,000 c.y. stated in the £186. Since publication of the
Eis and EISS, an additional 430,000 c.y. of silty sand from
the Moon Island reach is proposed to be placed at the 8-mile
site. The material from the Koon Island reach will be
dredged by hopper or clamshell, (depending on the bid).
This change is based on resource agency preference,
expressed in comments on the SA. This 430,000 c.y. of
material was originally designated for estuarine disposal.
In addition, it is proposed that maintenance dredged
material from the bar reach would be placed at the 3.9-mile
ocean site; 800,000 c.y. vill be placed in year 1,
decreasing through years 2t 3, and then 500,000 c.y.
annually there-.ter. At this time no maintenance dredged
material is proposed to be placed at the 8-mile site.
The sites were sited based upon the estimated material to be
disposed.
It is proposed that the disposal of the material at the
ocean sites begin on 1 June 1990. This widening and
deepening project is scheduled to be completed by August
1992.
DTSPOBXI, BV OTHERS - No .other material ether than the
material proposed in this notice is scheduled for disposal
at the ODKDS sites.
pQORDTKATIQN WITH FEDERAL. STATE. AND LOCAL AGENCIES - The
following federal, state, and local agencies have been or
are being coordinated with regarding this ua« of these
proposed ocean disposal sitest
Padaral
environmental Protection Agency
Fish and Wildlife Service
National Marine Fisheries Service
State
Department of Fisheries
Department of Ecology
Department of Natural Resources
Department of Wildlife
1-2
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Appendix I
Dredged Material Permit/Project Review Manual
ENVIRONMENTAL DOCUMENTATION - An Bis was completed in 1986,
and a copy is on file for review at the Seattle District
office, 4735 East Marginal way South, Seattle, Washington,
98124. An £168 was completed Kay 1989. A draft EA was
circulated December 1969. The EZSS and EA are on file- at
the same District office. The EISS contains procedural
information on establishing ocean disposal sites. The EA
contains information on additional testing performed to
determine the feasibility of dredged materials for ocean
disposal .
RELATIONSHIP TO TERRITORIAL SEAS - The proposed project is
located in ocean waters. The baseline from which the
territorial sea is measured is 3 nautical miles from
ordinary low tide. The closest edge of the proposed 3.9-
mile disposal site is located approximately 3.9 nautical
miles from the baseline of the territorial sea. The 8-mile
site is located • statutory miles west northwest of the
entrance to Grays Harbor, wit:, its center located 6.95
nautical miles from the baseline of the territorial sea.
STATUS OF STATE 4oi CERTTFTCATTQN - Discharge of dredged
material will take place entirely beyond the extent of the
3-mile territorial sea, therefore, State Section 401 Water
Quality certification is not applicable or required under
this Section 103 procedure.
ZONE MANAGEMENT Aet - Both dredging and
transportation of the dredge material would be conducted in
a manner consistent to the maximum extent practicable with
the approved State Coastal Zone Management Program.
HISTORIC RgsonRCEs - No historic or cultural resources will
be affected by this proposed work, as stated in a letter
from the state Department of Community Development (SHIPO),
dated 12 December 1988, in the EISS.
ENDANGERED SPECIES • Coordination with the U.S. Fish and
wildlife Service and National Marine Fisheries Service has
been done. The analysis is that no endangered or threatened
species will be adversely impacted as a result of the
project. A supplement to the biological assessment for
endangered species is being prepared.
STATUS OF DE6ICKATION OF THE SITES - Neither Of the two
proposed sites is presently a designated site under Section
1-3
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Appendix I
Dredged Material Permit/Project Review Manual
103 of the ODA. No known aaterial has been discharged at
the proposed aitee. Since there haa baan no known disposal
at tha aita, tbara la likewise no documented affaeta of
othar author lead diapoaal at the sites.
Thara ara no daaignatad ooaan diapoaal aitaa within a
reasonable diatanoa of tha project. Estuarine aitaa do not
have auffioient capacity to handle tha volume* of Material
that auat be dredged for tha project, and vatland cite usage
ia discouraged or prohibited. Upland sites are not
available, aaide from the two discussed in the KISS,
Therefore, the new ocean Bites are to be uaed.
Tha EPA ia proposing tha designation of both ooaan sites
described above under Section 102(c) of the ODA. Portions
of the Grays Harbor £188 pertaining to ocean disposal will
be formally adopted to technically support its designation
proeeaa. The SPA draft and final rule will be published in
tha Federal Register and serves as its Record of Decision
(ROD) for their action.
Under the authority of faction 103 of tha ODA, tha Corps of
Engineera is proposing to designate the two ocean sites as
disposal araaa. Tha 8-sdle site is intended by the corps of
Engineers to be uaed only once, for disposal of dredged
aaterial from the Grays Harbor navigation improvement
project. The site haa not been used previoualy and haa been
aelected because existing estuarine and ocean sitea do not
offer enough capacity and alao ara not aa suitable to
receive silty aaterial. Tha 3.9-vile site, as noted
earlier, will also receive maintenance aaterial after
construction is completed. The characteristics of both
ocean sites and tha impacts of disposal are preaanted in tha
EISS.
CHARACTERISTICS AKp COMPOSITION O> THE
The material ia primarily silt and silty sand. Zt 10
described in more detail in tha EX8S and EIS. ;
Subsequent to the Kay 1989 release of the EISS, new
information concerning resin acids and dioxin-furans in the
Grays Harbor sediments and some organisms vas received,
necessitating the generation of an additional sediment and
biological testing program. Tha results of tha progran were
published in tha draft EA released 22 December 1989.
EVALUATION FACTORS - The following factors, including their
cumulative affects, are ralavant to tha decision regarding
whathar to designate the two ocean sites under Section 103
of the ODA: conservation, economics, aesthetics, general
environmental concerns, wetlands, historic properties, fish
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Appendix 1
Dredged Material Permit/Project Review Manual
and wildlife values, flood hazards, floodplain values, land
use, navigation, shoreline erosion and accretion,
recreation, water supply and conservation, water quality,
energy needs, safety, food and fiber production, mineral
needs, consideration of property ownership and, in general,
the needs and welfare of the people.
The proposed transportation of the dredged material for
disposing of it in ooean waters is being evaluated to
determine that the proposed disposal will not unreasonably
degrade or endanger human health, welfare, or aaenities or
the marine environment, ecological systems, or economic
potentialities, in making this determination, the criteria
SJ?S1Si«iSr«5* ^i'^fr- EPA P«™ant to siSSn
102(a) of the ODA, will be applied, in addition, based uoon
Sl?iSU?S}0n °f ^ P^ential effects which the fiilSe SS
utilize this ocean disposal site will have on navigation,
economic and .ndustrial development, and foreign and
domestic commerce of the United states, an independent
determination will be made on the need to dispose of the
dredged material in ooean waters, other possible methods of
*PProPri«t« locations. The UFA, in a
~*«., ,
JS ™dafcJ? " Jun« "M* supported the selection of the
two ocean disposal sites being designated in the Eiss.
f£SMg BK£RT!ff ~JPW P«r»on who has an interest which may be
affected by the disposal of this dredged material may
ia 0< be ebed in
•eiciSU e«?Jfc?i§tri?t En^ne*r within the comment period
specified in this notice and must clearly set forth the
interest which may be affected and the manner irTwhich the
interest may be affected by this activity.
AOPITlPmMj IHrORKATTOlL- Additional information may be
obtained from Bert Brun, Environmental Resource Section, at
the above address, telephone number (206) 764-6578?
*- *• £r
Acting District Engineer
1-5
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Appendix I
Dredged Material Permit/Project Review Manual
1-6
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Appendix J
EXAMPLE OF
PUBLIC NOTICE FOR AN O&M ACTIVITY
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US Army Corps
of Engineers
Portland District
Operations Division
Navigation Branch
P.O. Box 2946
Portland, Oregon 97208-2946
Appendix J
Dredged Material Permit/Project Review Manual
ublic Notice
PUBLIC NOTICE DATE: 12 December 1989
CLOSING DATE: 12 January 1990
REFERENCE NUMBER: NPPOP-CRA-F90-001
Maintenance Dredging - Mouth of the
Columbia River
'4.n ?lstrict' Plar»s to perform work in navigable
£ this Distract under the Provisions of Section 103 of the
Protection, Research and Sanctuaries Act of 1972 (MPRSA) and in
accordance with Regulation 33 CFR Parts 335-338.
5° ""£*»*».«>• channel at the Federally authorized depths of
«i b? PeriodicaHy removing restrictive shoals consisting of
naturally occurring sedimentary material. For this action, up to 5 felt
of allowable overdepth dredging will be accomplished.
*" M°Uth' Clats°P Bounty, Oregon; Pacific
r
H ee respectively to ensure that the authorized
depths are maintained between dredging operations. The proposed work
-
The
to
i t0 *?
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Appendix J
Dredged Material Permit/Project Review Manual
Disposal Area 'A* - This disposal area is 5,000 feet x 2,000 feet
for a surface area of 0.359 square miles (0.929 sq. km.) at an
average depth of 60 feet (18.3 m^ The area.is" parallel to the Main
Channel Range with an azimuth of 225?.,,and -a^centroid at 46° 12'-38- N
and 124°-06'30"W. The four corners of,the rectangular disposal area
are:
46°-13f-03" N
46°-12'-50" N
46°-12'-13" N
460-12'-26" N
and
and
and
and
124°-06'-17" W
124°-05'-55" W
124°-06'-43" W
124°-07'-05" W
Disposal Area 'B' - This disposal area is 5,000 feet x 2,000 feet
for a surface area of 0.359 square miles (0.929 sq. km.) at an
average depth of 130 feet (39.6m). The centroid of the area is
located at 46°-14'-10" N and 124°-10'-30" W with the longest
dimension having an azimuth of 332°. The four corners of the
rectangular disposal area are:
46°-14'-37" N
46°-13'-53" N
46°-13'-43" N
46°-14'-28" N
and
and
and
and
124°-10•-34" W
124°-10•-01" W
124°-10«-26" W
124°-10'-59" W
Disposal Area 'E' - This disposal area is 4,000 feet x 1,000 feet
for a surface area of 0.143 square miles (0.372 sq. km.) at an
average depth of 70 feet (21.3 m). The area is parallel to the
North Jetty with an azimuth of 229° and a centroid at 46°-15'-27" N
and 124°-05'-37" W. The four corners of the rectangular disposal
area are:
46°-15l-43" N
46°-15'-36" N
460-15«-11" N
46°-15l-18" N
and
and
and
and
124°-05'-21" W
124°-05'-11" W
124°-05'-53" W
124°-06'-03" W
Disposal Area *F' - This disposal area is 1,800 feet x 1,800 feet
for a surface area of 0.116 square miles (0.301 sq. km.) at an
average depth of 125 feet (38.1 m). The area is parallel to the
Main Channel Range with an azimuth of 225° and a centroid of
46°-12'-00" N and 124°-09'-00" W. The four corners of the square
disposal area are:
46°-12'-12" N
46°-12'-00" N
46°-ll'-48" N
460-12«-00" N
and
and
and
and
124°-09'-00" W
124°-08'-42" W
124e-09'-00" W
124°-09'-18" W
The sites listed have received a final designation as approved ocean
disposal sites from the Environmental Protection Agency, pursuant to
Section 102 of the Marine Protection, Research, and Sanctuaries Act of
1972 (ODA).
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Appendix J
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These ocean disposal sites have periodically received dredged material
of similar characteristics since the mid-1960's. There have been no
known use of the sites for disposal by non-Federal interests. Area F
has received very little material from the maintenance of the Mouth of
the Columbia River but is presently being used for sediment from new
channel construction at Tongue Point, Oregon.
As a matter of comity, Section 401 State Water Quality Certifications
are being requested. This request for certification shall not be
construed as affecting or impairing the authority of the Secretary of
the Army to maintain navigation nor as concession that the Corps has any
legal obligation to obtain 401 Water Quality Certification for Corps
ocean disposal of dredged material.
PUBLIC SPONSOR; The local sponsor for the Federal navigation project,
Columbia River at the Mouth, is the Port of Portland.
MARINE PROTECTION. RESEARCH. AND SANCTUARIES ACT; The proposed
transportation of this dredged material for the disposing of it in ocean
waters has been evaluated, and it has been determined that the proposed
disposal will -not unreasonably degrade or endanger human health,
welfare, or amenities of the marine environment, ecological system, or
economic potentialities. In making this determination, the criteria
established by the Administrator, EPA pursuant to Section 102(a) of the
Marine Protection, Research, and Sanctuaries Act of 1972 was applied.
In addition, based upon an evaluation of the potential effect which the
failure to utilize this ocean disposal site would have on navigation,
economic and industrial development, and foreign and domestic commerce
of the United States, an independent determination has also been made of
the need to dispose of this dredged material in ocean waters, other
possible methods of disposal, and other appropriate locations.
CULTURAL RESOURCES: An investigation has been conducted to determine if
any cultural resources would be affected by the proposed work. This
investigation included field surveys. A review of the latest public
version of the National Register of Historic Places and Consultation
with the State Historic Preservation Officers will be initiated.
FEDERAL CONSISTENCY REQUIREMENTS WITH STATE'S COASTAL ZONE MANAGEMENT
PROGRAM: The proposed project is the maintenance of an existing
navigation channel and placement of material at a designated ocean
disposal site. Operations will be conducted in an manner that is
consistent, to the maximum extent practicable, with the approved state
management program. A determination of the project's consistency with
the applicable State Coastal Zone Management program has been
coordinated with the States of Oregon and Washington. The states have
concurred with this determination. Their concurrence is sought as a
matter of comity, and should not be construed as a concession that the
Corps has any legal obligation to obtain a determination of CZM
consistency for Corps ocean disposal of dredged material.
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Dredged Material Permit/Project Review Manual
ENDANGERED SPECIES; Preliminarily, the described activity will not
affect an endangered species, or their critical habitat designated as
endangered or threatened, pursuant to the Endangered Species Act of 1973
(87 Stat. 844).
ENVIRONMENTAL COORDINATION; The proposed work will be coordinated with
the following Federal, State, or local agencies:
Federal;
U.S. Environmental Protection Agency
U.S. Fish and Wildlife Service
National Marine Fisheries Service
State of Washington;
Washington Department of Fisheries
Washington Department of Game
Washington State Department of Ecology
Washington State Historic Preservation Office
State of Oregon;
Oregon Department of Fish and Wildlife
Oregon Division of State Lands
Oregon state Department of Environmental Quality
Oregon Department of Land Conservation and Development
Oregon State Historic Preservation Office
STATEMENT OF POLICY FOR OPERATIONS AND MAINTENANCE DREDGING; The Corps
of Engineers undertakes operations and maintenance activities where
appropriate and environmentally acceptable. All practicable and
reasonable alternatives are fully considered on an equal basis. This
includes the discharge of dredged or fill materials into waters of the
U.S. or ocean waters in the least costly manner, at the least costly and
most practicable location, and consistent with engineering and
environmental requirements (33 CFR Part 335.4). The least costly
alternative, consistent with sound engineering practices and selected
through the 404(b)(l) guidelines or ocean disposal criteria, will be
designated the Federal standard for the proposed project (33 CFR Part
336.l(c)(1)). Public Notices for Corps operations and maintenance
activities are normally issued for an indefinite period of time and are
not reissued unless changes in the disposal plan warrant re-evaluation
under Section 404 of the Clean Water Act or Section 103 of the Marine
Protection Research and Sanctuaries Act of 1972 (33 CFR Part 337.1 (a)).
Resource agencies listed in the COORDINATION paragraph will be informed
each year of estimated project requirements.
PUBLIC INTEREST REVIEW; The decision whether to perform the work will
be based on an evaluation of the probable impact of the described
activity on the public interest. That decision will reflect the
national concern for both protection and utilization of important
resources. The benefit which reasonably may be expected to accrue from
the proposal must be balanced against its reasonably foreseeable
detriments. All factors which may be relevant to the proposal will be
considered; among these are conservation, economics, aesthetics, general
environmental concerns, historic values, fish and wildlife values, flood
J-4
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Appendix J
Dredged Material Permit/Project Review Manual
damage prevention, land use, navigation, recreation, water supply, water
quality, energy needs, safety, food production, and in general, the
needs and welfare of the people.
PUBLIC HEARING; Any person who has an interest which may be affected by
the disposal of this dredged material may request a public hearing. The
request must be submitted in writing to the District Commander within 30
days of the date of this notice and must clearly set forth the interest
which may be affected and the manner in which the interest may be
affected by this activity.
EIS DETERMINATION- An Environmental Impact Statement, Navigation
Channel Improvements, Columbia River at the Mouth. Oregon and
Washington, dated November 1983, covering the work described by this
Public Notice has been prepared. A copy is on file at the Portland
District Office Library, 319 S.W. Pine Street, Portland, Oregon 97208,
for review. '
Comments on the described work, with the reference number, sb«i--.a reach
this office no later than the closing date of this Public Notice to
become part of the record.
ADDITIONAL INFORMATION? Additional information may be obtained from
Sheryl Carrubba, Waterways Projects Sub-Section, at the above address,
telephone 503/326-6085.
Kenneth H. Patterson
Chief, Navigation Branch
J-5
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Dredged Material Permit/Project Review Manual
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J-6
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Appendix!
Dredged Material Permit/Project Review Manual
PERTINENT LAWS. REGULATIONS AND DIRECTIVES
The proposed activity Is to be reviewed in accordance with the following
Federal laws, and regulations as applicable:
Sections 404 and 401, of the Clean Water Act of 1977 (P.L. 95-217)
Section 103, Marine Protection, Research and Sanctuaries Act of 1972
(33 U.S.C. 1413)
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347)
Fish and Wildlife Coordination Act (16 U.S.C. 661-666c)
Flah and Wildlife Ace of 1956 (16 U.S.C. 472a, et seq.)
Migratory Marine -»me - Fish Act (16 U.S.C. 760c-760g)
Sections 307(c) (I) and-(2), Coastal Zone Management Act of 1972
U6-U.S.C. 1456(c) (I) and (2)1
National Historic Preservation Act of 1966 (16 U.S.C. 470)
Endangered Species Act of 1973 (16 U.S.C. 668aa-668cc)
33 C.F.R. 209.145, 'Federal Projects Involving the Disposal of
Dredged Material in Navigable and Ocean Waters"
33 C.F.R. 320-329, "Permits for Activities in Navigable Waters or
Ocean "Waters"
40 C.F.R. 230, "Discharge of Dredged or Fill Material"
40 C.F.R. 220-229, "Ocean Dumping"
Attachment No. 1
J-7
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Appendix!
Dredged Material Permit/Project Review Manual;
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
Mill bop PV-11 • O/y/np«. VVj-i/wrjgf on ) 75 i-JHOO
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
Notice of Application for
Water Quality Certification
and for
Certification of Consistency with the
Washington Coastal Zone Management Program
Notice is"hereby given that a request is being filed with the Department of
Ecology for certification that a proposed discharge resultine from the project
described in the Corps of Engineers Public Notice No. nrrur -IKA-^U-UUI t
will comply with the applicable provisions of State and Federal Water Pollution
Laws.
Notice is also given that a request is being filed with the Department of Ecology
for concurrence that the above referenced, project will comply with the Washington
State Coastal Zone Management Program and that the project will be conducted in
a manner consistent with that Program.
Any person desiring to present views pertaining to the project on either or both
(1) water pollution or (2) the project's compliance or consistency with the
Washington State Coastal Zone Management Program may do so by providing written
comments to the Department of Ecology, Inter-Agency Operations Section, Mail
Stop PV-11, Olympia, Washington 98504.
Please note, state regulation requires a minimum of 20 days of public notice.
The comment period will begin 12 December 1989 (date of publication) and
run until final comments are received from reviewing state agencies and the
local government(s).
J-8
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Appendix J
Dredged Material Permit/Project Review Manual
Department of Environmental Quality
522 S.W. 5th AVENUE. P.O. BOX 1760. PORTLAND. OREGON 97207 PHONE (503) 229- 5358
Neil Goldschmidt
Governor
PUBLIC NOTICE
The following shall constitute public notice by .the State
of Oregon that the Department of Environmental Quality,
pursuant to the requirements of Section 401 of the Clean
Water Act of 1977, PL 95-217 has been requested to certify
that there is reasonable assurance that. the project
described in Corps of Engineers Public Notice Mo. NPPOP-rRA-
pon-nni _ will not violate applicable water quality
standards. Comments regarding possible water quality effects
of the proposed project shall be sent within 3O days to the
Department of Environmental Quality, P. o. Box 176O, Portland.
Oregon 97207.
J-9
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Appendix!
Dredged Material Permit/Project Review Manual FEB 0 7 1990
Reply To
Attn Of: WD-138
Colonel Charles E. Cowan
District Engineer
Portland District Corps of Engineers
P.O. Box 2946
Portland, Oregon 97208
ATTN: Kenneth H. Patterson, Chief, Navigation Branch
RE: NPPOP-CRA-F90-001, Maintenance Dredging - Mouth of the Columbia River,
dated December 12, 1989
Dear Colonel Cowan: '
We have completed our independent review of the referenced public notice
for maintenance dredging of fine to medium sands from the mouth of the
Columbia River with disposal of this material at ocean dredged material
disposal sites "A", "B", "E", and "F" designated by EPA under section 102 of
the Marine Protection, Research, and Sanctuaries Act of 1972. In general, we
have no objections to necessary maintenance of the federal navigation
channel. We continue to be concerned that maintenance dredging occurs in a
manner that minimizes or avoids adverse environmental effects. Accordingly,
we remain opposed to an indefinite public notice.
In recent years, our agencies have adopted a comprehensive approach to
dredged material management, especially regarding aquatic disposal site
management. This has included the pilot Long Term Management Strategy for the
lower Columbia River navigation channel reaches and is expected to include the
new navigation improvements study for the Columbia River channel. These and
other ongoing studies have focussed attention on various activities in the
Columbia River estuary, including dredged material. As these studies
progress, dredged material disposal in the lower Columbia River and at the
ocean sites may need to be reevaluated and alternative management plans
developed. Previous sediment evaluations have shown the material from these
reaches to meet the exclusion criteria for ocean disposal. Barring
significant new information or changes in project operations, our approval of
work associated with this public notice is limited to a period not to exceed
ten years.
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Appendix J
Dredged Material Permit/Project Review Manual
„,« ,£!eace contact John Malek, Regional Dredging Coordinator, at (206)
442-12C6, if there are any questions regarding this letter.
Sincerely,
William M. Riley, Chief
Water Resources Assessment Section
cc: EPA-Portland (000)
Corps-NPD (Reese)
USFWS-Portland
NMFS
Ecology (Vining)
WDF
WOW
DNR (Jamison)
ODEQ
ODSL
ODFW
CREST
bcc: Rick Albright
Jack Gakstetter
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Appendix K
GLOSSARY
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Appendix K
Dredged Material Permit/Project Review Manual
Appendix K. GLOSSARY OF COMMON DREDGING TERMS1
Acceptance
Survey
Acute
Toxicity
Advance
Maintenance
Advance
Maintenance
Dredging
After Dredging
Survey
Agitation
Dredging
Allowable
Overdepth
Allowable
Overdepth
Dredging
Appropriate
Sensitive
Benthic Marine
Organisms
A survey performed over a required section to determine quality and/or quantity
of construction.
Level of mortality by a.group of marine organisms that have been affected by the
properties of a substance, such as a contaminated sediment. The acute toxicity of a
sediment is determined by quantifying the mortality of appropriately sensitive
organisms that are put into contact with the sediment, under either field or laboratory
conditions, for a specified period.
The additional depth and/or width specified to be dredged beyond the project channel
dimensions for the purpose of reducing overall maintenance costs by decreasing the
frequency of dredging. Advance maintenance must always be justified See
Figure K-l.
A procedure whereby additional channel depth is provided to decrease the required
dredging frequency. In many cases, this procedure provides significant cost savings
as well as facilitating cost savings as well as facilitating scheduling of dredeine
activities. &
Hydrographic survey(s) performed after dredging of a required section(s) is
completed. This survey is used for clearance, payment, and acceptance purposes.
The practice of mechanically lifting sediment from the bottom of a dredging side into
the upper layers of the water body. The local currents can act on the sediment to
move it from the dredging site. Agitation dredging is normally used with fine-grained
sediments. Allowing the hoppers of hopper dredges to overflow is an example of
agitation dredging.
Additional depth .below the required section specified in a dredging contract. This
additional depth is permitted (but not required) because of inaccuracies in the dredging
process. See Figure K-2.
The inability of dredge operators to precisely locate the suction intake of their dredge
is recognized by allowing and paying for a certain amount of overdepth dredging.
At least one species each representing a filter-feeding, a deposit-feeding, and a benthic
species chosen from among the most sensitive species accepted by EPA as being
reliable test organisms [40 CFR 227.27(c) and (d)].
This glossary is based on glossaries found in the Evaluation of Dredged Material Proposed for Ocean Disposal
- Testing Manual ("Green Book"; EPA/USACE, 1991), Evaluating Environmental Effects of Dredged Material
Management Alternatives - A Testing Framework (EPA/USACE, 1992), and the USAGE'S "Dredging Policies
and Practices" (ER 1130-2-307). * * Jruuwcs
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Appendix K
Dredged Material Permit/Project Review Manual
Water Surface
Datum
Advance Maintenance
.;4;Allowable Overdepthkv.
^^CrftVAV/V'g.-vrCv.VtVKv'f
Project Depth
(Not to scale)
Figure K-l. Advanced Maintenance Concept
K-2
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Appendix K
Dredged Material Permit/Project Review Manual
Witer Surface
eject Depth
- Project Widft-»j
Typical Allowable Overdepth Section
Water Surface
Equivalent
Poini
AreaB
*.— Project Depth
: w
w ;
Box Cut Section
Equivalent Point • That point on «ach side slope where the area above lh«
point (Ara> A) equals th« area below the point (Area B).
W - That additional width on each side of the required bottom
width, that is determined by the location of the equivalent
point, necessary to make Area A - Area B.
(Not to scale)
Figure K-2. Allowable Overdepth Concept
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Appendix K
Dredged Material Permit/Project Review Manual
Water Surface
Project Width •
Datum
Side Slope
Project Depth
(Not to scale)
Figure K-3. Authorized Navigation-Project Dimensions
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Appendix K
Dredged Material Permit/Project Review Manual
Appropriate
Marine
Organisms
Aquatic
Ecosystem
Aquatic
Environment
Authorized
Dimensions
Baseline
Before Dredging
Survey
Beneficial Uses
Bin Measurement
Bioaccumulation
Biological
Monitoring
Boosters
At least one species each of a representative phytoplankton or zooplankton, a
crustacean or mollusc, and a fish species chosen from among the most
sensitive species in the scientific literature, or accepted by EPA as being reliable test
organisms.
Bodies of water, including wetlands, that serve as the habitat for interrelated and
interacting communities and populations of plants and animals.
The geochemical environment in which dredged material is submerged under water
and remains water-saturated after disposal is completed.
Length, width, and depth dimensions of a navigation project as specified in the
authorizing document. See Figure K-3.
Belt of the seas measured from the line of ordinary low water along that portion of
the coast that is in direct contact with the open sea and the line marking the seaward
limit of u-land waters.
Hydrographic survey performed prior to commencement of dredging operations to
determine potential quantities of material to be removed.
Placement or use of dredged material for some productive purpose. Beneficial uses
may involve either the dredged material or the placement site as the integral compo-
nent of the beneficial use. ^^
A method of determining work accomplished in which the measurement of material in
a hopper or scow is used for payment purposes.
The accumulation of contaminants in the tissues of organisms through any route,
including respiration, ingestion, or direct contact with contaminated sediment or
water. The regulations require that bioaccumulation be considered as part of the
environmental evaluation of dredged material proposed for ocean dumping. This
consideration involves predicting whether there will be a cause-and-effect relationship
between an animal's presence in the area influenced by the dredged material and an
environmentally important elevation of its tissue content or body burden of contami-
nants above that in similar animals not influenced by the disposal of the dredged
material.
Systematic determination of the effects on aquatic life, including accumulation of
pollutants in tissue, in receiving waters as a result of the discharge of pollutants (a) by
techniques and procedures, including sampling of organisms representative of
appropriate levels of the food chain appropriate to the volume and the physical,
chemical, and biological characteristics of the effluent, and (b) at appropriate frequen-
cies and locations.
Additional pumps used in conjunction with pipeline disposal to increase the maximum
transport distance between the dredging operation and the disposal area. As a rule of
thumb, maximum economic transport distance, through employment of multiple
boosters, is about five miles.
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Appendix K
Dredged Material Permit/Project Review Manual
Bottom Dump
Doors
Bow Thrusters
Bucket Dredge
Bulking Factor
Capping
Channel Prism
Clamshell Dredge
Coaming
Coastal Zone
Condition
Survey
Confined Disposal
Confined Disposal
Facility (CDF)
Doors at the bottom of a hopper dredge that allow disposal of hopper contents by
simply opening them at the disposal site. Not all hopper dredges are equipped with
bottom dump doors and emptying the hoppers is much more complicated and time-
consuming.
Nozzles located on both the port and starboard bow of hopper dredges that use jetted
water to give greater maneuverability during the dredging operation.
A dredge type that mechanically operates an endless belt of buckets that revolves
around the dredge ladder. The individual buckets contact the bottom and bring dredge
materials to the surface through the water and dump them into an on-board hopper or
into a barge built for that purpose.
A factor that describes the tendency of a given soil to take on water when disturbed.
Use of a clean dredged material as a cover for contaminated dredged material disposal
in open water as a means of isolating the contaminated sediment from the overlying
aquai.. environment.
The channel design dimensions, including required side slopes, width overdepth, and
advance maintenance.
A type of dredge that uses a single bucket attached to the dredge with cables. The
dredge operates by lifting the bucket (the clamshell), dropping it into the bottom
sediments, lifting the bucket and dredged material to the surface, and emptying the
dredged material into a nearby disposal facility.
Sides of scow.
Includes coastal waters and the adjacent shorelands designated by a State as being
included within its approved coastal zone management program under the Coastal
Zone Management Act of 1972. The coastal zone may include open waters, estuaries,
bays-, inlets, lagoons, marshes, swamps, mangroves, beaches, dunes, bluffs, and
coastal uplands. Coastal-zone uses can include housing, recreation, wildlife habitat,
resource extraction, fishing, aquaculture, transportation, energy generation, commer-
cial development, and waste disposal.
Hydrographic survey used to plan sampling locations at dredging site.
A disposal method that isolates the dredged material from the environment. Confined
disposal includes capping and contained aquatic disposal at open water sites and
placement of dredged material within diked intertidal or upland-confined disposal
facilities via pipeline or other means.
A confined disposal facility is a diked area used to contain dredged material. The
terms CDF, dredged material containment area, diked disposal facility, and confined
disposal area are used interchangeably in the literature.
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Appendix K
Dredged Material Permit/Project Review Manual
Constituents
Constructed
Dimensions
Contaminant
Contaminated
Sediment or
Contaminated
Dredged Material
Control Measure
Control Sediment
Cross-section
Surveys
Cutterhead
Deep-Water
Port
Degassing
Chemical substances, solids, organic matter, and organisms associated with or
contained in or on dredged material.
Channel dimensions that have been provided by initial or new work dredging. These
dimensions are equal to or less than the authorized dimensions.
A chemical or biological substance in a form that can be incorporated into, onto, or
be ingested by and that harms aquatic organisms, consumers of aquatic organisms, or
users of the aquatic environment.
Contaminated sediments or contaminated dredged materials are defined as those that
have been demonstrated to cause an unacceptable adverse effect on human health or
the environment.
See Management Action.
i;' ~^"aeat essentiaUy •» of contaminants and compatible with the biological
needs of the test organisms such that it has no discemable influence on the response
being measured in the test. Test procedures are conducted with the control sediment
in the same way as the reference sediment and dredged material. The purpose of the
control sediment is to confirm the biological acceptability of the test conditions and to
help to verify the health of the organisms during the test. Excessive mortality in the
control sediment indicates a problem with the test conditions or organisms, and can
invalidate the results of the corresponding dredged material test.
Hydrographic surveys performed normal to the channel alignment.
A device for mechanically cutting stiff clays and compacted sands. The device is
located at the end of the dredge ladder, is driven by a motor and shaft assembly, and
is designed to feed the dredged material into the dredge suction.
As defined in 33 USC 1502, any fixed or floating manmade structure other than a
vessel, or any group of such structures, located beyond the territorial sea and off the
coast of the United States and that are used or intended for use as a port or terminal
for the loading or unloading and further handling of oil for transportation to any State
except as otherwise provided in Section 23 (USC 1522). The term includes all
associated components and equipment including pipelines, pumping stations, service
platforms, moonng buoys, and similar appurtenances to the extent they are located
seaward of the high-water mark. A deep-water port shall be considered a "new
source" for purposes of the Clean Air Act, as amended, and the Federal Water
Pollution Control Act, as amended.
Quite often, gases created by organic substances or trapped in dredged materials are
released during the dredging process and significantly decrease the performance of the
dredge pump. When gases are a chronic problem on a dredging project, a degassing
system is used to remove the gases in the dredged mixture prior the dredged mixture
reaching the dredge pump.
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Appendix K
Dredged Material Permit/Project Review Manual
Density Meter
A device that detects the specific gravity of the mixture in the discharge pipe of the
dredge system.
Dewatering
Diffuser
Dipper Dredge
Disposal Area
Draft
Draft Gauge
Drag Arm
Drag Head
Dredge
Dredged Material
Use of trenches and other engineering techniques to expedite removal of water from a
confined disposal facility after dredging. Dewatering is used in conjunction with other
site management techniques to increase the life expectancy of the site as well as to
improve foundation properties.
A device placed on the end of a discharge pipeline to slow the velocity of discharged
material, thereby providing better control over point disposal and reducing turbidity
and water-column impacts.
A type of dredge that uses a single bucket that is rigidly attached by a mechanical
arm. The dipper dredge works by gouging material from the bottom with the dipper
and emptying the dredged material into a nearby disposal area.
A precise geographical area within which ocean disposal of dredged material is
permitted under conditions specified in permits issued under § 103 of the MPRSA.
Such sites are identified by boundaries established by (1) coordinates of latitude and
longitude for each corner or by (2) coordinates of latitude and longitude for the center
point and a radius in nautical miles from that point. Appropriate data for latitude and
longitude should be indicated. Boundary coordinates shall be identified as precisely as
is warranted by the accuracy with which the site can be located by using existing
navigational aids or through the implantation of transponders, buoys, or other means
of marking the site.
The vertical distance from the water line to the keel of a vessel. The depth of water
necessary for the dredge to enter an area or to operate.
The device for determining the current draft for the dredge.
Extendable suction pipes associated with hopper dredges, usually located both port and
starboard, which are lowered to the bottom during dredging to convey sediment from
the bottom into the hopper bins.
The device placed at the terminus of the drag arm and contacting the bottom. There
are several designs, and their use depends on the type of material to be dredged at the
project site.
A device used in dredging. Normally, this device generates hydraulic forces to
entrain bottom materials into the pumping system. Sometimes a combination of
hydraulic and mechanical systems are used to fragment or dislodge bottom materials.
Material excavated or dredged from waters of the United States and ocean waters.
K-8
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Appendix K
Dredged Material Permit/Project Review Manual
Dredged Material
Discharge
Dredge Ladder
Dredging
Dredge Tender
Dredging Cycle
Dredging
Frequency
Dredging
Process
Dumping
Dustpan Dredge
Effective
Volume
Effluent
Emergency
The term dredged material discharge as used in this document means any addition of
dredged material into waters of the United States or ocean waters. The term includes
open water discharges, discharges .resulting from unconfined disposal operations (such
as beach nourishment or other beneficial uses); discharges from confined disposal
facilities that enter waters of the United States (such as effluent, surface runoff, or
leachate); and overflow from dredge hoppers, scows, or other transport vessels.
The structural assembly that supports the dredge suction pipe, the cutterhead (if
installed), and other flow augmentation devices such as jet assists. Occasionally, the
dredge pump will be placed on the dredge ladder to improve dredge production.
The practice of removing material from underwater locations.
A support vessel that is responsible for moving non-self-propelled dredges from one
dredging site to another. The trader provides other services such as placing anchors
and assisting in deployment of floating discharge line.
Length of time required by a hopper dredge to fill the hopper bins to specified
capacity, transport the material to a disposal site, and return to the point of dredging
activity.
Time interval between required project maintenance dredging requirements.
Ranges from two or more times per year to intervals of 10 to 15 years.
Removal (usually from underwater), transportation, and disposal of material, for the
purpose of constructing new waterways, maintaining existing waterway dimensions,
obtaining fill for land reclamation, beach nourishment, dike and levee construction,
creating wetlands and marshes, obtaining materials from borrow areas, or other
beneficial uses.
The disposition of material subject to the exclusions of paragraph 220.2(e) of the
regulations and 33 CFR 320-330 and 335-338.
The dustpan dredge is so named because the suction looks like a large vacuum cleaner
or dustpan. The dustpan is outfitted with high-velocity water jets for agitating and
mixing the material. The dustpan is not suited for hard-compacted materials but
works well in soft, free-flowing materials.
The volume of dredged material that can be placed and retained in the hoppers
of a hopper capacity hopper dredge.
Water that is discharged from a confined disposal facility during and as a result of the
filling or placement of dredged material.
In the context of dredging operations, emergency is defined in 33 CFR Part 335.7 as
a "situation which would result in an unacceptable hazard to life or navigation, a
significant loss of property, or an immediate and unforeseen significant economic
hardship if corrective action is not taken within a time period of less than the normal
time needed under standard procedures."
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Appendix K
Dredged Material Permit/Project Review Manual
Federal Project
Federal Standard
Flap Valve
Floating
Pipeline ,
Flow Meter
Habitat
Haul Distance
Hopper Capacity
Hopper Overflow
Hopper Pumpout
Horizontal
Positioning
Initial Mixing
In-pltce
(Quantity)
Measurement
Any work or activity of any nature and for any purpose that is to be performed by or
for the Secretary of the Army acting through the Chief of Engineers pursuant to
Congressional authorizations. It does not include work requested by any other
Federal agency on a cost-reimbursable basis.
The dredged material disposal alternative or alternatives identified by the U.S. Army
Corps of Engineers that represent the least costly alternatives consistent with sound
engineering practices and meet the environmental standards established by the
404(b)(l) evaluation process or ocean-dumping criteria (33 CFR 335.7).
A device in the dredge discharge line that is designed to maintain a certain minimum
resistance to flow in the discharge line. This is a safety device that provides protec-
tion to the prime mover by preventing overloading.
In most cases, the discharge line from a non-hopper dredge must span some open
water between the dredge and die disposal site. This discharge pipe is normally
attache*' to floating pontoons between the dredge and the disposal site.
A device that detects the amount of mixture produced by the dredge system in a given
time.
The specific area or environment in which a particular type of plant or animal lives.
An organism's habitat provides all of the basic requirements for the maintenance of
life. Typical coastal habitats include beaches, marshes, rocky shores, bottom
sediments, mudflats, and the water itself.
The one-way distance the hopper dredge must travel to a disposal area after rilling its
hopper at the dredging site.
The maximum volume of the hoppers of a hopper dredge.
Overruling of hoppers to remove excess water and suspended sediments to increase
total hopper sediment concentration and thus increase the effective capacity of the
dredge.
Alternative to bottom gravity disposal from hopper dredges; ability designed into all
Federal hopper dredges for direct pump-out from the hopper for the purposes of beach
nourishment, when such use of dredged material is needed, or for direct disposal unto
a confined disposal facility.
Line of site triangulation with defined shore stations to provide accurate position
of dredging or disposal activity. Available technology includes LORAN and micro-
wave transmitters.
Dispersion or diffusion of liquid, suspended particulate, and solid phases of a waste
that occur within 4 hours after dumping.
A method of determining work accomplished where the volume of material removed
is determined utilizing before dredging and after dredging hydrographic surveys.
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Appendix K
Dredged Material Permit/Project Review Manual
In Situ Density
Jet Suction
Assist
Ladder-Mounted
Dredge Pump
Leased Dredge
Construction
Contract
Light Draft
Limiting
Permissible
Concentration
Loaded Draft
Longitudinal
Surveys
Lump Sum
Construction
Contract
Maintained
Dimensions
Maintenance
Dredging
Management
Action
May
Must
The density or specific gravity of bottom materials in their undisturbed state.
A device for improving the suction characteristics of a dredge pump by injecting
high-energy jets of water into the dredge suction pipe.
Positioning the dredge pump on the dredge ladder near the point of the
suction intake. This design offers considerable dredging efficiency advantage over the
on-dredge location for the pump. Disadvantages are the high cost and increased size
of plant required.
A method of procuring a fully staffed and adequately equipped dredge (with or
without attendant plant) to perform work in compliance with the contract for a given
period. Payment is made based on a unit of time (generally an "hour" or fraction
thereof). Mobilization, demobilization, plant movement, standby time, and other
costs are generally separate bid items.
The draft of the dredge it its lightest load-hoppers empty, fuel and stores low, no
extra equipment or personnel.
The concentration of a contaminant that, after allowance for initial mixing, does
not exceed applicable marine water quality criteria, or does not exceed a toxicity
threshold defined as 0.01 of a concentration shown to be acutely toxic to appropriate
sensitive marine organisms in a bioassay. (40 CFR 227.27)
The draft of the dredge at its heaviest load-hoppers full, full stores, and fuel
Hydrographic surveys performed parallel to the channel alignment.
A method of procuring dredging services in which the contractor is paid a single
Gump sum) pnce for dredging material. Mobilization and demobilization are
generally a separate bid item.
Navigation channel dimensions (length, width, and depth) that are determined by'using
traffic, or other restrictions, that are less than or equal to the authorized dimensions
or the constructed dimensions if less than the authorized dimensions.
The removal of shoal material from a constructed project.
Those actions that may be considered necessary to rapidly render harmless the
material proposed for disposal in the marine environment (e.g., nontoxic, nonbio-
accumulative).
May is used to mean "is allowed to;" con is used to mean 'is able to:" and might is
used to mean "could possibly."
Must in this manual refers to requirements that have to be addressed in the context of
compliance with the ocean dumping regulations.
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Appendix K
Dredged Material Permit/Project Review Manual
Navigation
Channel
Nominal Project
Depth
Ocean
Overflow
Payment Surveys
Pay Quantities
Plain Suction
Dredge
Plans and
Specifications
(Pro-Bid) Survey
Pontoon
Portable Dredges
Post-Dredge
Hydrographic
Survey
Pre-Dredge
Hydrographic
Survey
Prime Mover
Production Meter
A project feature with authorized project limits/dimensions, which is designed,
constructed and maintained for use by commercial and/or recreational navigation
traffic. This definition includes appropriate harbors, canals, turning basins, anchor-
age/mooring areas and/or waterways.
The depth which must be maintained in order to ensure the safe passage of any vessel
operating within the authorized channel dimensions at mean low tide.
Those waters of the open seas lying seaward of the baseline from which the territorial
sea is measured.
(to be defined)
Hydrographic surveys performed to determine payment quantities.
Normally, pay quantities ore computed by comparing pre-and post-dredge surveys.
The computations are corrected for such actions as dredging outside the channel
limits, uieuging deeper than ? ihorized, and leaving undredged areas within the
project.
A dredge with no special device on the suction pipe for dislodging or agitating
the material.
Hydrographic survey, intended for use in a contract solicitation, to determine the
estimated quantity of material to be dredged.
The flotation devices that support most pipeline dredges. There are also pontoons that
support the floating portion of the discharge line.
A class of smaller dredges that are designed to be easily disassembled for overland
transporting to the next dredge site.
A survey of the channel bottom following completion of maintenance dredging.
This survey is compared with both the pre-dredge survey and the channel project
dimensions to ensure that all necessary maintenance material has been removed, but
that excessive material has not been removed by the dredge without authorization.
A condition survey of the channel bottom taken prior to initiating of dredging.
This survey is compared to channel project dimensions to determine the amount
and extent of maintenance dredging required.
The engine and gear train that drives the dredge pump.
A device that combines the signals from a flow meter and a density meter and reports
dredge production in terms of volume of dredged material pumped per unit time.
Project Condition
Survey
Hydrographic survey performed to determine the condition of the channel.
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Appendix K
Dredged Material Permit/Project Review Manual
Project Depth
Project Dimensions
Pump Casing
Pump Cavitation
Pump Efficiency
Pump Impeller
Reconnaissance
Survey
Reference
Sediment
Regulations
Relief Cut
Required Section
Scow
Should
Side-Slope
The depth at which a project is maintained to ensure safe navigation by user traffic.
Project depth may be equal to or less than authorized depth, depending on the user
traffic trends since the date of project authorization.
(See Authorized Dimensions.)
The external covering of the dredge pump. The casing, like the impeller, is specially
designed to handle the highly abrasive dredged material with high efficiency and
minimum wear.
Pump cavitation occurs when local pressures in the interior of the pump are lowered
below that of the vapor pressure of water. Cavitation causes decreased performance
of the pump and, if neglected, can cause extensive pump damage.
Pump efficiency is the ratio of the output of the pump in terms of work produced by
the pump to the input to the pump in terms of work required to operate the pump.
The internal part of the dredge pump that creates the suction that brings the mixture of
water and dredged materials into the pump and pushes them through the discharge
pipe to the disposal facility.
A hydrographic survey performed to determine general project or channel conditions.
These surveys may be controlled or uncontrolled.
A sediment, substantially free of contaminants, that is as similar as practicable to the
grain size of the dredged material and the sediment at the disposal site, and mat
reflects the conditions that would exist in the vicinity of the disposal site had no
dredged-material disposal ever taken place, but had all other influences on sediment
condition taken place. These conditions have to be met to the maximum extent
possible. If it is not possible to fully meet these conditions, tests should use organ-
isms that are not sensitive to the grain-size differences among the reference sediment,
control sediment, and dredged material. The reference sediment serves as a point of
comparison to identify potential effects of contaminants in the dredged material.
Procedures and concepts published in 40 CFR 220-228 for evaluating proposals for
dumping dredged material in the ocean.
(to be defined)
The channel dimensions required by a dredging contract.
A large flat-bottomed boat with broad square ends used chiefly for transporting bulk
material (such as ore, sand, or refuse).
Should is used to state that the specified condition is recommended and ought to be
met unless there are clear and definite reasons for not doing so.
Excavated grade on each side of a channel from channel bottom to original
bathymetric elevation, expressed in terms of rise/run
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Appendix K
Dredged Material Permit/Project Review Manual
Sidecaster Dredge
Solids Handling
pump
Split Hull
Spud Hoists
Spuds
Suspended Solids ~
Sweep Surveys
Swing Anchors
Swing Wires
Telemetry
Territorial Sea
Toxicity
A self-propelled dredge, normally a hopper dredge, equipped with a boom on which
the discharge is located. As the dredge operates, the dredged material is discharged
to the side of the channel, allowing natural currents and processes to move the
dredged material from the dredging site.
A pump specially designed with hardened surfaces, larger internal clearances,
and special lubrication facilities that allow pumping of granular, abrasive, solid
materials. A dredge pump is a type of solids handling pump.
A barge designed to augment the disposal of dredged materials. The barge is filled
with dredged material, hauled to the disposal site, and emptied by opening the hull
along the axis of the barge.
A device located at the rear of the dredge that lifts, repositions, and supports the
spuds.
The devices for holding the dredge in position and about which the dredge pivots
while making its cut. There are normally two spuds; they are cylindrical in cross
section and are located at the rear of the dredge.
Organic or inorganic particles that are suspended in water. The term includes sand,
mud, and clay particles as well as other solids, such as biological material, suspended
in the water column.
A sweep of an excavated project to obtain full coverage using rigid bars, or multiple
or scanning transducer echo soundings, to determine the location of obstructions or
hard materials in the navigation channel.
The anchors set to each side of the dredging project and to which the swing wires ore
attached.
The cables that run from anchors located to both sides of the dredging project through
sheaves located on the dredge ladder to winching equipment on the dredge. These
cables are responsible for pulling the dredge suction through the bottom material. The
cable on'one side is activated to move the dredge suction in that direction; the spud
arrangement is changed and the opposite swing wire is used to pull the dredge suction
in the opposite direction.
A method for transmitting technical information from a remote site to a central
location for analyzing and processing.
The strip of water immediately adjacent to the coast of a nation measured from the
baseline as determined in accordance with the Convention on the Territorial Sea and
the Contiguous Zone (15 UST 1606; TIAS 5639) and extending a distance of 3 mni
from the baseline.
Level of mortality by a group of organisms that have been affected by the properties
of a substance, such as contaminated water, sediment, or dredged material.
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Appendix K
Dredged Material Permit/Project Review Manual
Toxic Pollutant
Trailing Suction
Hopper Dredge
Trunion
Turbidity
Unit Price
Construction
Contracts
Upland
Environment
Velocity Meter
Walking Spud
Wetlands
Wetlands
Restoration
Pollutants, or combinations of pollutants, including disease-causing agents, that after
discharge and upon exposure, ingestion, inhalation, or assimilation into any organism,
either directly from the environment or indirectly by ingestion through food chains,
will, on the basis of information available to the Administrator of the U.S. Environ-
mental Protection Agency (EPA), cause death, disease, behavioral abnormalities,
cancer, genetic mutations, physiological malfunctions, or physical deformations in
such organisms or their offspring.
A self-propelled vessel with pumps and other apparatus for removing bottom
materials while underway, storing the materials temporarily in hoppers aboard the
vessel, then steaming to a disposal site to dispose of the dredged materials.
The hinge at the connection of the dredge ladder and the dredge. The trunion allows
the ladder to pivot in a vertical plane.
An optical measure of the amount of material suspended in the water. Increasing the
turbidity of the water decreases the amount of light that penetrates the water ccl-tra.
Very high levels of turbidity can be harmful to aquatic life.
A method of procuring dredging services in which payment for work completed is
based on an applicable unit price from a specified section. Unit price contracts can be
based on volume, area, or time units of measure. A volume unit of measure is
usually cubic yards. The area unit of measure is usually per station or per square
yard. The time unit of measure is usually an hour or a fraction thereof. Mobilization
and demobilization costs are generally a separate bid item.
The geochemical environment in which dredged material may become unsaturated
dried out, and oxidized.
A device that detects the rate of movement of the mixture in the dredge system.
A spud positioned on the centerline of the dredge and mechanized in such a manner
that the dredge can be repositioned without lifting the spud.
Areas that are inundated or saturated by surface water or groundwater 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.
Involves either improving the condition of existing degraded wetlands so that the
Junctions that they provide are of a higher quality, or reestablishing wetlands where
they formerly existed before they were drained or otherwise converted
K-15
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Appendix K
Dredged Material Permit/Project Review Manual
Whole Sediment
Winches
Zoning
The sediment and interstitial waters of the proposed dredged material or reference
sediment before it has undergone any processing that might alter its chemical or
lexicological properties. For purposes of this manual, press-sieving to remove
organisms from test sediments, homogenization of test sediments, compositing of
sediment samples, and additions of small amounts of seawater to facilitate homogeniz-
ing or compositing sediments may be necessary to conducting a bioassay test. These
procedures are unlikely to substantially alter chemical or lexicological properties of
the respective whole sediments. Alternatively, wet sieving, elutriation, or freezing
and thawing of sediments may alter chemical and/or lexicological properties, and
sediment so processed should not be considered as whole sediment for bioassay
purposes.
The equipment aboard the dredge that maneuvers the various cable systems. There
are normally five winches: one for each spud, one for each swing wire, and one for
the ladder wire.
To designate, by ordinances, areas of land reserved and regulated for specific land
uses.
K-16
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Appendix L
LIST OF COMMON USAGE ABBREVIATIONS AND ACRONYMS
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Appendix L
Dredged Material Permit/Project Review Manual
Appendix L. LIST OF COMMON USAGE ABBREVIATIONS AND ACRONYMS1
ADDAMS
ASA (CW)
BERH
BPJ
CA
CAP
CDR
CE
CEBRH
CECW
CECW-B
CECW-E
CECW-L
CECW-O
CECW-P
CERC
CEQ
CFR
COE
CWA
CY
CZM
CZMA
DA
DCW
DDE(PM)
DE
Automated Dredging and Disposal Alternatives Management System
Assistant Secretary of the Army for Civil Works
Board of Engineer for Rivers and Harbors
best professional judgment
continuing authorities
Continuing Authorities Program
Commander
U.S Army Corps of Engineers
Board of Engineers for Rivers and Harbors
Corps of Engineers Civil Works
Headquarters, Civil Works Program Division
Headquarters, Engineering Division
Headquarters, Civil Works Life Cycle Project Management Division
Headquarters, Construction, Operations and Readiness Division
Headquarters, Policy and Planning Division
Coastal Engineering Research Center
Council on Environmental Quality
Code of Federal Regulations
Chief of Engineers
Clean Water Act
cubic yard
coastal zone management
Coastal Zone Management Act of 1972
Department of the Army
Director, Civil Works
Deputy District Engineer for Project Management
District Engineer
is based on selected acronyms from the USAGE'S Sponsor's Partnership Kit (undated) and the
Planning Guidance Notebook (1990a).
L-l
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Appendix L
Dredged Material Permit/Project Review Manual
DEIS
DOD
DPS
EA
EC
EIS
EO
EM
EPA
EP
ER
ESA
EQ
FCA
FCSA
FDA
FEIS
FONSI
FRC
GDM
Horn
HEP
HES
HQUSACE
EPMP
IRC
LC
LCA
LCPM
LERRD
LDC
Draft Environmental Impact Statement
Department of Defense
detailed project study
Environmental Assessment
engineer circulars
Environmental Impact Statement
Executive Order
engineer manual
Environmental Protection Agency
engineering pamphlets
engineering regulations
Endangered Species Act of 1972, 1973
environmental quality
Flood Control Act
Feasibility Cost Sharing Agreement
Food and Drug Administration
final environmental impact statement
Findings of No Significant Impact
Feasibility Resolution Conference
general design memorandum
hour
habitat evaluation procedures
habitat evaluation system
Headquarters, U.S. Army Corps of Engineers
Initial Project Management Plan
issue resolution conference
lethal concentration
Local Cooperation Agreement
Life Cycle Project Manager
Lands, Easements, Rights-of-way, Relocations and Disposal Areas
London Dumping Convention, Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter
L-2
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Appendix L
Dredged Material Permit/Project Review Manual
LPC
MOA
MOU
MPRSA
NED
NEPA
NOA
NOI
NMFS
NOAA
NWP
O&M
OACE
OCE
OFA
OMB
OM&R
OMRR
OMRR&R
ORD
P&G
PAC
PAM
PED
PGN
PL
PM
PMP
POC
POS
PROSPECT
limiting permissible concentration, 40 CFR 227.27
memorandum of agreement
memorandum of understanding
Marine Protection, Research, and Sanctuaries Act of 1972
national economic development
National Environmental Policy Act of 1969
notice of availability
notice of intent
National Marine Fisheries Service
National Oceanographic and Atmospheric Administration
nationwide permit
operation and maintenance
Office of the Assistant Chief of Engineers
Office of the Chief of Engineers
EPA Office of Federal Activities
Office of Management and Budget
operation, maintenance and rehabilitation
operation, maintenance, repair and rehabilitation
operation, maintenance, repair, replacement and rehabilitation
Office of Research and Development
Principles and Guidelines
postauthorization change
pamphlet
preconstruction engineering and design
Planning Guidance Notebook
Public Law
project manager
project management plan
point of contact
plan of study
proponent-sponsored engineer USAGE training
L-3
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Appendix L
Dredged Material Permit/Project Review Manual
QA
QC
RGL
RHA
ROD
RRC
SA
SOF
SOS
SPOC
TPM
US
USAGE
USAED
USCG
WLRC
WES
WQC
quality assurance
quality control
regulatory guidance letters
River and Harbor Act of 1899
Record of Decision
Reconnaissance Resolution Conference
Secretary of the Army
Statement of Findings
Scope of Studies
sin£:e point of contact
team project manager
United States
U.S. Army Corps of Engineers
U.S. Army Engineer District
U.S. Coast Guard
Washington Level Review Center
USAGE Waterways Experiment Station, Vicksburg, MS
Water Quality Criteria
L-4
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Appendix M
PRESIDENTIAL MEMORANDUM
RELAT7NG TO WATER RESOURCES PLANNING
Economic and Environmental Principles for Water and
Related Land Resources Implementation Studies
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Appendix M
Dredged Material Permit/Project Review Manual
Appendix M. PRESIDENTIAL MEMORANDUM
RELATING TO WATER RESOURCES PLANNING
Economic and Environmental Principles for Water and
Related Land Resources Implementation Studies
These Principles are established pursuant to the
W«er Resources Planning Act of 1965 (Pub. L 89-
80). as amended (42 U.S.C. 1962»-2 and d-1).
These Principles supersede the Principles estab-
fcshed irTconnectJcn with promuigalion of principles,
.standards and procedures at 18 CFR, Parts 711.
713.714 and 716.
1. Purpose and Scope
These principles are Intended" to ensure proper
and consistent planning by Federal agencies in the
formulation and evaluation c? water and related
land resources implementation studies.
Implementation studies of the following agency
attrvfties ere covered by these principles:
(a) Corps of Engineers (Civil Works} water re-
sources project plans;
(b) Bureau of Reclamation water resources project
plans:
fc) Tennessee Valley Authority water resources
project plans;
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Appendix M
Dredged Material Permit/Project Review Manual
ft) Existing water and related land resources plans.
such as State water resources plans, art to be
considered as alternative plans If within the
•cope of the planning effort
C. Kan Selection
A plan recommending Federal action is to be the
aftamativt plan with the greatest net economic
benefit consistent with protecting the Nation's envi-
fonment (the NED plan), unless the Secretary of a
department or head of an independent agency
grants an exception to this rule. Exceptions may be
made when there are overriding reasons for reeom.
mending another plan, based on other Federal.
Slate, local and international concerns.
UC. Risk and Uncertainty
Planners shall identify areas of risk and uncer-
tainty in their analysis and describe them dearly, so
that decisions can be made with knowledge of the
degree of reliability of the estimated benefits and
tests and of the effectiveness of alternative plans.
Ill-Cost Allocation
• • •
Foe allocating total project financial costs among
the purposes served by a plan, separable costs will
be assigned to their respective purposes, and all
Joint costs wfl! be allocated to purposes for which
the plan was formulated. (Cast sharing policies for
water projects will be addressed separately.)
7. Accounts
Four accounts are establish! * w facilitate evalu-
ation and display of effects of alternative plans.
The national economic development account is re-
quired. Other Information that is required by tew or
«mt wfll have ~a material bearing on the dec&iotv
makinfl process should be included in the other ac-
counts, or in some other appropriate format used to
organize information on effects.
(a) The national economic development (NED) ac-
count displays changes in the economic value
of the national output of goods and services.
(b) The environmental quality (EQ) account displays
nonrnoneiary effects on significant natural and
cultural resources.
(c) The regional economic development (RED) ac-
count registers changes in the distribution of
regional economic activity that result from each
alternative plan. Evaluations of regional effects
are to be carried out using nationally consistent
projections of income, employment, output.
and population.
{0} The other social effects (OSE) account registers
plan effects from perspectives that are relevant
to the planning process, but are not reflected
in the other three accounts.
•. Discount Rate
Discounting is to be used to convert future mone-
tary values to present values.
*. Period of Analysis
The period of analysis to be be the same tar
•acti alternative plan.
12. Planning Guideline*
in order to ensure consistency of Federal agency
planning necessary for purposes of budget and
policy decisions and to aid States and the public in
evaluation of project alternatives, the Water Re-
sources Council (WRC). in cooperation with the
Cabinet Council on Natural Resources and Environ-
ment shall issue standards and procedures, in the
form of guidelines, implementing these •Principles.
The head of each Federal agency subject to this
order win be responsible for consistent application
of the guidelines. An agency may propose agency
guidelines which differ from .the guidelines issued
by WRC. Such agency guidelines and suggestions
for improvements in the WRC guidelines are to be
submitted to WRC for review and approval The
WRC wilt forward afl agency proposed guidelines
which represent changes in esabiished policy to
the Cabinet Council on Natural Resources and En-
vironment for its consideration.
US. Effective Date
These Principles shall apply to implementation
studies completed more than 120 days after issu-
ance of the standards and procedures referenced
in Section 12. and concommitartt repeal of 16 CFR.
Parts 711.713.714, and 716.
These economic and environmental Principles
ere hereby approved.
February 3. 1963
M-2
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