Monday
June 9, 1997
Part V
Department of
Defense
' ,x
Department of the Army ' .
Corps of Engineers
Regulatory Guidance Letters Issued by
the Corps of Engineers; Notice
3149
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Department of the Army
Corps of Engineers
Regulatory Guidance Letters Issued by
the Corps of Engineers
AGENCY: U.S. Army Corps of Engineers,
DoD.
ACTION: Notice.
SUMMARY: The purpose of this notice is
to provide current Regulatory Guidance
Letters (RCL's) to all interested parties.
RGL's are used by the U.S. Army Corps
of Engineers Headquarters as a means to
transmit guidance on the permit
program (33 CFR 320-330) to its
division and district engineers (DE's).
Each future RGL will be published in
the Notice Section of the Federal
Register as a means to insure widest
dissemination of this information while
reducing costs to the Federal
Government. The Corps no longer
maintains a mailing list to furnish
copies of the RGL's to the public.
FOR FURTHER INFORMATION CONTACT:
Mr. Ralph Eppard. Regulatory Branch,
Office of the Chief of Engineers at (202)
761-1783.
SUPPLEMENTARY INFORMATION: RGL's
were developed by the Corps as a
system to organize and track written
guidance issued to its field agencies.
RGL's are normally issued as a result of
evolving policy; judicial decisions and
changes to the Corps regulations or
another agency's regulations which
affect the permit program. RGL's are
used only to interpret or clarify existing
Regulatory Program policy, but do
provide mandatory guidance to the
Corps district offices. RGL's are
sequentially numbered and expire on a
specified date. However, unless
superseded by specific provisions of
subsequently issued regulations or
RGL's, the guidance provided in RGL's
generally remains valid after the
expiration date. The Corps incorporates
most of the guidance provided by RGL's
whenever it revises its permit
regulations.
We are hereby publishing all current
RGL's beginning with RGL 92-1 and
ending with RGL 96-2. RGL 91-1
expired on December 31, 1996. and RGL
92-4 expired on January 21. 1997, and
both have been removed from this
publication. We will continue to
publish each RGL in the Notice Section
of the Federal Register upon issuance
and in early 1998. we will again publish
the complete list of all current RGL's.
Daced:May28, 1997.
Robert W. Burkhardt,
Colonel, Corps of Engineers, Executive
Director of Civil Works.
Regulatory Guidance Letter (RGL 92-1)
RGL 92-1 Date: 13 May 1992. Expires:
31 December 1997
Subject: Federal Agencies Roles and
Responsibilities.
1. Purpose
The purpose of this guidance is to
clarify the Army Corps of Engineers
leadership and decision-making role as
"project manager" for the evaluation of
permit applications pursuant to Section
404 of the Clean Water Act (CWA) and
Section 10 of the Rivers and Harbors
Act. This guidance is also intended to
encourage effective and efficient
coordination among prospective
permittees, the Corps, and the Federal
resource agencies (i.e., Environmental
Protection Agency (EPA), Fish and
Wildlife Service (FWS), and National
- Marine Fisheries Service (NMFS)).
Implementation of this guidance will
help to streamline the permit process by
minimizing delays and ensuring more
timely decisions, while providing a
meaningful opportunity for substantive
input from all Federal agencies.
2. Background
(a) The Department of the Army
Regulatory Program must operate in an
efficient manner in order to protect the
aquatic environment and provide fair,
equitable, and timely decisions to the
regulated public. Clear leadership and a
predictable decision-making framework .
will enhance the public acceptance of
the program and allow the program" to
meet the important objective of
effectively protecting the Nation's
valuable aquatic resources.
(b) On August 9, 1991, the President
'announced a comprehensive plan for
improving the protection of the Nation's
wetlands. The plan seeks to balance two
important objectives—the protection,
restoration, and creation of wetlands
and the need for sustained economic
growth and development. The plan, '
which is designed to slow and
eventually stop the net loss of wetlands,
includes measures that will improve
and streamline the current wetlands
regulatory system. This Regulatory
Guidance Letter is issued in accordance
with the President's plan for protecting
wetlands.
(c) The intent of this guidance is to
express clearly that the Corps is the
decision-maker and project manager for
the Department of Army's Regulatory
Program. The Corps will consider, to the
maximum extent possible, all timely.
Federal agencies when making
regulatory decisions. Furthermore, the
Corps and relevant Federal agencies will
maintain and improve as necessary their
working relationships.
(d) The Federal resource agencies
have reviewed and concurred with this
guidance and have agreed to act in
.accordance with these provisions. While
this guidance does not restrict or impair
the exercise of legal authorities vested
in the Federal resource agencies or
States under the CWA or other statutes
and regulations (e.g., EPA's authority
under section 404(c), section 404(f). and
CWA geographic jurisdiction and FWS/ '
NMFS authorities under the Fish and
Wildlife Coordination Act and the
Endangered Species Act (ESA)). agency
comments on Department of the Army
permit applications must be consistent
with the provisions contained in this
regulatory letter.
3. The Corps Project Management/
Decision Making Role
(a) The Corps is solely responsible for
making final permit decisions pursuant
to section 10 and section 404(a),
including final determinations of
compliance with the Corps permit
regulations, the Section 404(b)(l)
Guidelines, and Section 7(a) (2) of the
ESA. As such, the Corps will act as the
project manager for the evaluation of all
permit applications. The Corps will
advise potential applicants of its role as
the project manager and decision-maker.
This guidance does not restrict EPA's
authority to make determinations of
compliance with the Guidelines in -
carrying out its responsibilities under
Sections 309 and 404(c) of the Clean
Water Act..
(b) As the project manager, the Corps
is responsible for requesting and
evaluating information concerning all
permit applications. The Corps will
obtain and utilize this information in a
manner that moves, as rapidly as
practical, the regulatory process towards
a final permit decision. The Corps will
not evaluate applications'as a project
opponent or advocate—but instead will
maintain an objective evaluation, fully
considering all relevant factors.
(c) The Corps will fully consider other
Federal agencies' project-related
comments when determining
compliance with the National
Environmental Policy Act (NEPA), the
Section 404(b)(l) Guidelines, the ESA,
the National Historic Preservation Act,
and other relevant statutes, regulations,
and policies. The Corps will also fully .
consider the agencies' views when
determining whether to issue the
permit, to issue the permit with
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31493
conditions and/or mitigation, or to deny
the permit.
4. The Federal Resource Agencies' Role
(a) It is recognized that the Federal
resource agencies have an important ,
role in the Department of the Army
Regulatory Program under the CWA,
NEPA, ESA, Magnuson Fisheries
Conservation and Management Act, and
other relevant statutes.
(b) When providing comments,
Federal resource agencies will submit to
the Corps only substantive, project-
related information on the impacts of
activities being evaluated by the Corps
and appropriate and practicable
measures to mitigate adverse impacts.
The comments will be submitted within
the time frames established in
interagericy agreements and regulations.
Federal resource agencies will limit
their comments to their respective areas
of expertise and authority to avoid
duplication with the Corps and other
agencies and to provide the Corps with
a sound basis for making permit .
decisions. The Federal resource
agencies should not submit comments
that attempt to interpret the Corps -
regulations or for the purposes of
section 404(a) make determinations
concerning compliance with the Section
404(b)(l) Guidelines. Pursuant to its
authority under Section 404(b)(l) of the
CWA, the EPA may provide comments
to the Corps identifying its views
regarding compliance with the
Guidelines. While the Corps will fully
consider and utilize agency comments,
the final decision regarding the permit
application.-including a determination
of compliance with the Guidelines,Crests
solely with the Corps.
5. Pre-Application Consultation
(a) To provide potential applicants
with, the maximum degree of relevant
information at'an early phase of project
planning, the Corps will increase its
efforts to encourage pre-application
consultations in accordance with
regulations at'33'CFR 325.l(b).
Furthermore, while encouraging pre-
application consultation, the Corps will
emphasize-the need for early
consultation concerning mitigation •
•requirements, if impacts to aquatic
resources may occur. The Corps is
responsible for initiating, coordinating,
'and conducting pre-application
consultations and other discussions and
meetings with applicants regarding '
Department of the Army permits. This
may riot apply in instances where the
consultation is associated with the
review of a separate permit or license
required from another Federal agency
(e.g., the Federal Energy Regulatory
Commission or the Nuclear Regulatory
Commission) or in situations where
resource agericies perform work for
others outside the context of a specific
Department of the Army permit
application (e.g., the Conservation
Reserve Program and technical
assistance to applicants of Federal
grants).
(b) For those pre-application
consultations involving activities that
may result in impacts to aquatic
resources, the Corps will provide EPA,
FWS, NMFS (as appropriate), and other
appropriate Federal and State agencies,
a reasonable opportunity to participate
in the pre-application process. The
invited agencies will participate to the •
maximum extent possible in the pre-
application consultation, since this is
generally the best time to consider ,
alternatives for avoiding or reducing
adverse impacts. To the extent practical,
the Corps and the Federal resource
agencies will develop local procedures
(e.g., teleconferencing) to promote
reasonable and effective,pre-application
consultations within the logistical
constraints of all affected parties.
6. Applications for Individual Permits
(a) The Corps is responsible for
determining the need for, and the
coordination of, interagency meetings,
requests for information, and other;
interactions between permit applicants
and the Federal Government. In this
regard, Federal resource agencies Will
contact the Corps to discuss .and
coordinate any additional need for
• information from the applicant. The
Corps will cooperate with the Federal
resource agencies to ensure, to the
extent practical, that information
necessary for the agencies to carry out
their responsibilities is obtained. If it is
determined by the Corps that an
applicant meeting is necessary for the
exchange of informaton with a Federal
resource agency and the Corps chooses
not to participate in such a meeting, the
Federal resource agency will apprise the
Corps, generally in writing, of that
agency's .discussions with the applicant.
Notwithstanding such meetings, the
Corps is solely responsible for permit
requirements, including mitigation and ,
other conditions—the Federal resource
agencies must not represent their views
as regulatory requirements. In
circumstances where the Corps meets ,
with the applicant and'develops
information that will affect the permit
decision, the Corps will apprise the
Federal resource agencies of such
.information.
(b) Consistent with 33 CFR part 325,
the Corps will ensure that public notices
contain sufficient information to
facilitate the timely submittal of project-
specific comments from the Federal
resource agencies. The resource
agencies comments will provide specific
information and/or data related to the
proposed project site. The Corps will
fully consider comments regarding .the
site from a watershed or landscape
scale, including an evaluation of
potential cumulative and secondary "
impacts.
(c) The Corps must consider
cumulative impacts in reaching permit
•decisions! In addition to the Corps own
expertise and experience, the Corps will
fully consider comments from the
Federal resource agencies, which can
provide valuable information on
cumulative impacts. Interested Federal
agencies are encouraged to provide
periodically to the Corps generic
comments and assessments of impacts
(outside the context of a specific permit
application) on issues within the
agencies'area of expertise.
7. General Permits
(a) The Corps is responsible for
proposing potential general-permits,
assessing impacts of and comments on
proposed general permits, and deciding
whether to issue general permits. The
Corps will consider proposals for
general permits from other sources,
including the Federal.resource agencies,
although the final decision regarding the
need to propose a general permit rests
with the Corps. Other interested Federal
agencies^ should provide comments to
the Corps on proposed general permits.
These Federal agency comments will be ..
submitted consistent with established
agreements and regulations and will
focus on the Federal agencies' area(s) of
expertise'. The Corps will fully'consider
such agencies' comments in deciding
whether to issue general permits,
including programmatic general
permits. •
, (b) The Corps is responsible for
initiating and conducting meetings that
may be necessary in developing and
evaluating potential general permits.' •. .
Any discussions-with a State or local
Government regarding proposed
programmatic general permits will be
coordinated through and conducted by ,
the Cprps. Prior to issuing a
programmatic general permit, the Corps
will ensure that the State or local
program, by itself or with appropriate .
conditions, will protect the aquatic
'environment, including wetlands, to the
level required by the section ,404
program. "
8. This guidance expires 31 December
1997 unless sooner revised or rescinded.
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Federal Register / Vol. 62, No. 110 / Monday, June 9, 1997 / Notices
For the Commander.
Arthur E. Williams.
Major General. USA, Director of Civil Works.
Regulatory Guidance Letter (92-3)
RGL 92-3, Date: 19 Aug 92, Expires: 31
Dec 97
Subject: Extension of Regulatory
Guidance Letter (RGL) 86-10 RGL 86-
10, subject: "Special Area
Management Plans (SAMP's)" is
extended until 31 December 1997
unless sooner revised or rescinded.
For the Director of Civil Works.
John P. Elmore,
Chler, Operations, Construction and
Readiness Division, Directorate of Civil
Works.
RGL 96-10
Special Area Management Plans
(SAMP's)
Issued 10/2/86. Expired 12/31/88
1, The 1980 Amendments to the
Coastal Zone Management Act define
the SAMP process as "a comprehensive
plan providing for natural resource
protection and reasonable coastal-
dependent economic growth containing
a detailed and comprehensive statement
of policies, standards and criteria to .
guide public and private uses of lands
and waters; and mechanisms for timely
implementation in specific geographic
areas within the coastal zone." This
process of collaborative interagency
planning %vithin a geographic area of
special sensitivity is just as applicable
in non-coastal areas.
2. A good SAMP reduces the
problems associated with the traditional
case-by-case review. Developmental
interests can plan with predictability
and environmental interests-are assured
that individual and cumulative impacts
are analyzed in the context of broad
ecosystem needs.
3, Because SAMP's are very labor
intensive, the following ingredients
should usually exist before a district
engineer becomes involved in a SAMP:
a. The area should be environmentally
sensitive and under strong
developmental pressure.
b. There should be a sponsoring local
agency to ensure that the. plan fully
reflects local needs and interests.
c. Ideally there should be full public
involvement in the planning and
development process.
d. All parties must express a
willingness at the outset to conclude the
SAMP process with a definitive
regulatory product (see next paragraph).
4, An ideal SAMP would conclude
with two products: (1) Appropriate
local/State approvals and a Corps
general permit (GP) or abbreviated
processing procedure (APP) for
activities in specifically defined
situations; and (2) a local/State
restriction and/or an environmental
Protection Agency (EPA) 404 (c)
restriction (preferably both) for
undesirable activities. An individual
permit review may be conducted for
activities that do not fall into either
category above. However, it should
represent a small number of the total
cases addressed by the SAMP. We
recognize that an ideal SAMP is difficult
to achieve, and. therefore, it is intended
to represent an upper limit rather than
an absolute requirement.
5. Do not assume that an
environmental impact statement is
automatically required to develop a
SAMP.
6. EPA's program for advance
identification of disposal areas found at
40 CFR 230.80 can be integrated into a
SAMP process.
7. In accordance with this guidance,
district engineers are encouraged to
participate in development of SAMP's.
However, since development of a SAMP
can require a considerable investment of
time, resources, and money, the SAMP
•process should be entered only if it is
likely to result in a definitive regulatory
product as defined in paragraph 4.
above.
8. This guidance expires 31 December
1988 unless sooner revised or rescinded.
For the Chief of Engineers.
Peter J.Offringa.
Brigadier General, USA, Deputy Director of
Civil Works.
Regulatory Guidance Letter (RGL 92-5)
RGL 92-5, Date: 29 October 1992,
Expires: 31 December 1997
Subject: Alternatives Analysis Under
the Section 404(b)(l) Guidelines for
Projects Subject to Modification
Under the Clean Air Act.
1. Enclosed for implementation is a
joint Army Corps of Engineers/
Environmental Protection Agency
Memorandum to the Field on
alternatives analysis for existing power
plants that must be modified to meet
requirements of the 1990 Clean Air Act.
This guidance was developed jointly by
the Corps and EPA.
2. This guidance expires 31 December
1997 unless sooner revised or rescinded.
For the Director of Civil Works.
John P. Elmore.
Chief, Operations, Construction and
Readiness Division, Directorate of Civil
Works.
EPA/Corps Joint Memorandum for the •
Field
Subject: Alternatives Analysis under the
Section 404(b)(l) Guidelines for
Projects Subject to Modification
Under the Clean Air Act
1. The 1990 Clean Air Act (CAA)
amendments require most electric
generating plants to reduce emissions of
sulfur dioxide in phases beginning in
1995 and requiring full compliance by
2010. The congressional endorsement of
the industry's ability to select the most
effective compliance method (e.g.,
sulfur dioxide scrubbers, low sulfur
coal, or other methods) recognizes the
expertise of the industry in these cases
and is a fundamental element in the
CAA market-based pollution control
program. Given the need for cooling
water, a substantial number of electric
power generating plants are located
adjacent, or in close proximity, to
waters of the United States, including
wetlands. Depending on the method
• chosen by the plants to reduce
emissions, we expect that these facilities:
will be applying for Clean Water Act
Section 404 permits for certain
proposed activities.
2. The analysis and regulation under
Section 404 of the Clean Water Act of
activities in'waters of the United States
conducted by specific power plants to
comply with the 1990 Clean Air Act .
amendments must ensure protection of
the aquatic environment consistent with
the requirements of the Clean Water
Act. The review of applications for such
projects will fully consider, consistent
with requirements under the Section
404(b)(l) Guidelines, all practicable
alternatives including non-aquatic
alternatives, for proposed discharges
associated with the method selected by
the utility to comply with the 1990
'•Clean Air Act amendments. For the
purposes of the Section 404(b)(l)
Guidelines analysis, the project purpose
will be that pollutant reduction method
selected by the permit applicant.
3.'For example, a utility may have
decided to install sulfur dioxide
scrubbers on an existing power plant in
order to meet the new 1990 Clean Air
Act standards. The proposed
construction of the scrubbers, treatment
ponds and a barge unloading facility
could impact wetlands. In this case, the'
Section 404 review Would evaluate
practicable alternative locations and
configurations for the scrubbers, ponds
. and of the docking facilities. The
analysis will also consider practicable
alternatives which satisfy the project
purpose (i.e., installing scrubbers) but
which have a less adverse impact on the
aquatic environment or dp not involve
discharges into waters of the United
States. However, in order to best
effectuate Congressional intent reflected '
in the CAA that electric utilities retain'
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31495
flexibility to reduce sulfur dioxide
emissions in the most cost effective
manner, the Section 404 review should
not evaluate alternative methods of
complying with the Clean Air Act
standards not selected by the applicant
(e.g., in this example use of low sulfur
coal).
4. In evaluating the scope of
practicable alternatives which satisfy
the project purpose (e.g., constructing ,
additional scrubber capacity), the
alternatives analysis should not be
influenced by the possibility that, based
on a conclusion that practicable upland
alternatives are available to the
applicant, the project proponent may
decide to pursue other options for
meeting Clean Air Act requirements.
Continuing the-above example, a Corps
determination that practicable upland
alternatives are available for scrubber
waste disposal should not be affected by
, the possibility that an applicant may
subsequently decide to select a different
method for meeting the Clean Air Act
standards (e.g., use of low sulfur coal
that reduces waste generated by • .
scrubbers).
5. The Corps and EPA will also
recognize the tight time-frames under
which the industry must meet these .
new air quality standards. i •
Robert H. Wayland,
Director, Office of Wetlands, Oceans and
Watersheds.
John P. Elmore,
Chief, Operations, Construction and
Readiness Division; Directorate of Civil
Works. , ' ' '
Regulatory Guidance Letter (RGL 93-1)
RGL 93-1, Issued: April 20, 1993.,
Expires: December 31, 1998 CEGW-
OR
Subject: Provisional Permits
1. Purpose: The purpose of this
guidance is to establish a process that
clarifies for applicants when the U.S. .
Army Corps of Engineers has completed
its evaluation and at what point the
applicant should contact the State
concerning the status of the Section 401
Water Quality Certification and/or
Coastal Zone Management (CZM)
consistency concurrence. This process
also allows for more accurate
.measurement of the total length of time
spent by the Corps in evaluating permit
applications (i.e., from receipt of a
complete application until the Corps
reaches a permit decision). For
verification of authorization of activities
under regional general permits, the'.
Corps will use the appropriate
nationwide permit procedures at 33 CFR
330.6.' '
2. Background: a. A Department of the
Army permitjnvolving a discharge of
dredged or 'fill material cahnot be issued
until a State Section 401 Water Quality
Certification has been issued or waived.
Also, a Department of the Army permit
cannot be issued for an activity within
a State with a federally-approved
Coastal Management Program when that
activity that would occur within, or
outside, a State's coastal zone will affect
land or water uses or natural resources
of the State's coastal zone,, until the ;"
State concurs with the applicant's
consistency determination, or
concurrence is presumed. In many
cases, the Corps completes its review
before the State Section 401 Water
Quality Certification or CZM
concurrence requirements have,been
satisfied. In such cases, applicants and
the public, are often confused regarding
who to deal with regarding resolution of
any State issues.
b. The "provisional permit" '
procedures described below will
facilitate a formal communication
between the Corps and the applicant to
clearly indicate that the applicant
should be in contact with the
appropriate State agencies to satisfy the
State 401 Water Quality Certification or
CZM concurrence requirements. In
addition, the procedures will allow for
a more accurate measurement of the
.Corps permit evaluation time.
3. Provisional Permit Procedures: The
provisional permit procedures are
optional and may only be used in those
cases where: (i) The District Engineer
; (DE) has made a provisional individual
permit decision that an individual
permit should be issued, and, (ii) the
only action(s) preventing the issuance of
that permit is that the State has not
issued a required Section 401 Water •
Quality Certification .(or waiv.er has not
occurred) or the'State has not concurred
in the applicant's CZM consistency
determination (or there is not a
presumed concurrence). In such cases,
the DE may, using these optional .
procedures, send a provisional permit to
the applicant.
a. First, the DE will prepare and sign
the provisional permit decision
document. Then the provisional permit
will be sent to the applicant by
transmittal letter. (The sample
transmittal letter at enclosure 1 contains
the minimum information that must be
provided.)
b. Next, the applicant would obtain
the Section 401 Water Quality
Certification (or waiver) and/or CZM
consistency concurrence (or presumed
concurrence). Then the applicant would
sign the provisional permit and return it
to the DE along with the appropriate fee
and the Section 401 Water Quality
Certification (or proof of waiver) and/or
the CZM consistency concurrence (or
proof of presumed concurrence).
c. Finally, the Corps would-attach any
Section 401 Water Quality Certification
and/or CZM consistency concurrence to
the provisional permit then sign the
provisional permit (which then becomes
the issued final permit), and forward the
permit to the applicant.
d. This is the same basic process as
the normal standard permit transmittal
process except that the applicant is sent
an unsigned permit (i.e.. a provisional
permit) prior to obtaining the Section
401, Water Quality Certification (or
waiver) and/or CZM consistency
concurrence (or presumed concurrence).
(See enclosure 2.) A permit can not be
issued (i.e., signed by the Corps) until -
the Section 401 and CZM requirements
are satisfied.
4. Provisional Permit: A provisional
permit is a standard permit document
with a cover sheet. The cover sheet must
clearly indicate the following: that a
provisional permit is enclosed, that the
applicant must obtain the Section 401
Water Quality Certification or CZM
concurrence from the State, that these
documents must be sent to the Corps
along with the provisional permit -
signed by the applicant, and that the
Corps will issue the-permit upon receipt
of .these materials. The issued permit is
the provisional permit signed by the
applicant and the Corps. The
provisional permit must contain a
statement indicating that the applicant.
is required to comply with the Section
401 Water Quality Certification,
including any conditions, and/or the
CZM consistency concurrence,
including any conditions. At enclosure
3 is a sample cover sheet for the
provisional permit.
5. Provisional Permit Decision: The
DE may reach a final decision that a
permit should be issued provided that
the State issues a Section 401 Water
Quality Certification and/or a CZM
concurrence. In order to reach such a
decision the DE must complete the
normal standard permit evaluation-
process, prepared and sign a decision
document, and prepare a standard
permit, including any conditions or
mitigation (i.e., ai provisional permit).
The decision document must include a
statement that the DE has determined
that the permit will be issued if the
State issues a Section 401 Water Quality
Certification or waiver' and/or a CZM
concurrence, or presumed concurrence.
The standard permit will not contain a
condition that requires or provides for
the applicant to-obtain a Section 401
Water Quality Certification and/or CZM
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Federal Register / Vol. 62, No. 110 / Monday, June 9, 1997 / Notices
concurrence. Once the decision
document Is signed, the applicant has
the right to a DA permit if the State
issues a Section 401 Water Quality
Certification or waiver and/or a CZM
concurrence, or if concurrence is
presumed. Once the decision document
is signed, the permittee's right to
proceed can only be changed by using
the modification, suspension and
revocation procedures of 33 CFR 325.7,
unless the State denies the Section 401
Water Quality Certification or
nonconcurs with the applicant's CZM
consistency determination.
6. Enforcement: In some cases,
applicants might proceed with the
project upon receipt of the provisional
permit. The provisional permit is not a ,
valid permit. In such cases, the Corps
has a discretionary enforcement action
to consider and should proceed as the
DE determines to be appropriate. This
occurs on occasion during the standard
permit transmittal process. Since the
Corps is not changing the normal
process of sending unsigned permits to
the applicant for signature, there should
not be an increase in the occurrence of
such unauthorized activities.
7. Modification: a. In most cases the
Section 401 Water Quality Certification,
including conditions, and/or CZM
consistency concurrence, including
conditions, will be consistent with the
provisional permit. In such cases, the
DE will simply sign the final permit and
enclose the 401 water quality
certification and/or CZM consistency
concurrence with the final permit (i.e.,
the signed provisional permit).
b. In a few cases such State approval
may necessitate modifications to the
Corps preliminary permit decision.
Such modifications will be processed in
accordance with 33 CFR 325.7.
(1) When the modifications are minor
and the DE agrees to such modifications,
then a supplement to the provisional
decision document may be prepared, as
appropriate, and the permit issued with
such modifications. (This should
usually be done by enclosing the State
401 Water Quality Certification and/or
CZM consistency concurrence to the
permit, but in a few cases may require
a revision to the permit document
itself.)
(2) When the modification results in
substantial change or measurable
increase in adverse impacts or the Corps
does not initially agree with the change,
then the modification will be processed
and counted as a separate permit action
for reporting purposes. This may require
a new public notice or additional
coordination with appropriate Federal
and/or state agencies. The provisional
decision document will be
supplemented or may be completely
rewritten, as necessary.
8. Denial: If the State denies the
Section 401 Water Quality Certification
and/or the State nonconcurs with the
applicant's CZM consistency
determination, then the Corps permit is
denied without prejudice.
9. This guidance expires 31 December
1998 unless sooner revised or rescinded.'
For the Director of Civil Works.
John P. Elmore,
Chief. Operations, Construction and
Readiness Division, Directorate of Civil
Works.
3 Ends
Sample
Provisional Permit
Transmittal Letter
Dear: ;
We have completed our review of your
permit application identified as [File No.,
appl. name, etc.] for the following proposed
work:
near/in/at ;
Enclosed is a "PROVISIONAL PERMIT."
The provisional permit is NOT VALID and
does not authorize you to do your work. The
provisional permit describes the work that
will be authorized, and the General and
Special Conditions [if any] which will be
placed on your final Department of the Army
PA) permit, if the State of
Water Quality
Certification and/or Coastal Zone
Management (CZM) consistency
requirements are satisfied as described
below. No work is to be performed in the
waterway or adjacent wetlands until you
have received a validated copy of the DA
permit.
By Federal law no DA permit can be issued
until a State Section 401 Water Quality
Certification has been issued or has been
waived and/or the State has concurred with
a permit applicant's CZM consistency
determination or concurrence has been
presumed. As of this date the [State 401
certification agency] has not issued a Section
401 Water Quality Certification for your
proposed work. If the [State 401 certification
agency] fails or refuses to act by [date 401
certification must be issued] the Section 401
Water Quality Certification requirement will
be automatically waived. Also, as of this date
the [State CZM agency] has not concurred
with your CZM consistency determination. If
the State does not act by [six months from
receipt by the State of the applicant's CZM
consistency determination] then concurrence
with your CZM consistency determination
will automatically be presumed.
Conditions of the State Section 401 Water
Quality Certification and/or the State CZM
concurrence will become conditions to the
final DA permit. Should the State's action on
the required certification or concurrence
preclude validation-of the provisional permit
in its current form, a modification to the
provisional permit will be evaluated and you
will be notified as appropriate. Substantial
changes may require a new permit evaluation
process, including issuing a new public
notice.
Enclosure 1
Final Permit Actions
Normal Permit Process
1. Corps completes permit decision, and state
401/CZM issued/waived
2. Corps sends unsigned permit to applicant.
3. Applicant signs permit and returns with
fee
4. Corps signs permit
Draft Permit Process
1. Corps completes permit decision, but state
401/CZM not complete
2. Corps sends draft permit to applicant
3. State 401/CZM issued waived
4. Applicant signs permit and returns with
fee and 401/CZM action
5. Corps reviews 401/CZM action and signs
permit
1. The signed draft permit with the
attached 401/CZM action is to be treated as
the applicant's request for a permit subject to
any 401/CZM certification/concurrence
including any conditions.
2. If the 401/CZM action results in a
modification to the draft permit, then step 4.
would be treated as a request for such
modification and if we agree with the
modification, then the permit would be
issued with the modification and the
decision document supplemented, as
appropriate. If the Corps does not initially
agree with the modification, or it involves a
substantial change or measurable increase in
adverse impacts, then the modification
would be processed as a separate permit
action for reporting purposes.
Enclosure 2
Once the State has issued the required
Section 401 Water Quality Certification and/
or concurred with your CZM consistency
determination or the dates above have passed
without the State acting, and you agree to the
terms and conditions of the provisional
permit, you should sign and date both copies
and return them to us [along with your
$ 100.00/$10.00 permit fee]. Your DA permit
will not be valid until we have returned a
copy to you bearing both your signature and
the signature of the appropriate Corps
official.
If the State denies the required Section 401
Water Quality Certification and/or
nonconcurs with your CZM consistency
determination, then the DA permit is denied
without prejudice. If you should
subsequently obtain a Section 401 Water
Quality Certification and/or a CZM "
consistency determination concurrence, you
should contact this office to determine how
to proceed with your permit application.
If you have any questions concerning your
State'Section 401 Water Quality Certification,
please contact (State 401 certification
contact.
• If you have any questions concerning your
CZM consistency determination, please
contact (State CZM contact).
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31497
If you have any other questions concerning
your application for a DA permit, please
contact [Corps contact] at [Corps contact
telephone number].
Provisional Permit
Not Valid
Do Not Begin Work > ,
This Provisional Permit is Not Valid until:
(1) You obtain: - a
Section 401 Water Quality Certification'(from
State Agency).
a Coastal Zone
Consistency determination concurrence from
(State Agency). ' . •
(2) You sign and return the enclosed
provisional permit with the State Section 401
Water Quality Certification and/or CZM
concurrence and the appropriate permit fee
as indicated below:
$10.00
$100.00'
N.O fee required
(3) The Corps signs the permit and returns
it to you. Your permit is denied without
prejudice, if the State denies your Section
401 Water Quality Certification and/or
nonconcurs with your Coastal Zone
Management consistency determination.
Do Not'Begin Work
REGULATORY GUIDANCE LETTER'.
(RGL 93-2)
RGL 93-2. Date: 23 August 1993.
Expires: 31 December 1998
Subject: Guidance on Flexibility of the
404 (b) (1) Guidelines and Mitigation
Banking. .
1. Enclosed are two guidance
documents signed by the Office of the
Assistant Secretary of the Army (Civil
Works) and the Environmental
Protection Agency. The first document
provides guidance on the flexibility that
the U.S. Army Corps of Engineers
should be utilizing when making
determinations of compliance with the
Section 404(b)(l) Guidelines,
particularly with regard to the
alternatives analysis. The second
document provides guidance on the use
of mitigation banks as a means of
.providing compensatory mitigation for
Corps regulatory decisions.
2. Both enclosed guidance documents
should be implemented immediately.
These guidance documents constitute
an important aspect of the President's
plan for protecting the Nation's
wetlands, "Protecting America's
Wetlands: A Fair, Flexible and Effective
Approach" (published on 24 August
1993). - ^
3. This guidance expires 31 December
1998 unless sooner revised or rescinded.
For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and
Readiness Division, Directorate of Civil
Works. ' • '
2 Encls , •
Memorandum to the field
Subject: Appropriate level of analysis
required for evaluating compliance
with the section 404(b)(l) guidelines
alternatives requirements
1. Purpose: The purpose of this
memorandum is to clarify the
appropriate level of analysis required
for evaluating compliance with the
Clean Water Act Section 404(b)(1)
Guidelines' (Guidelines) requirements
for consideration of alternatives. 40 CFR
230.10(a). Specifically, this
, memorandum describes the flexibility .
afforded by the Guidelines to make
regulatory decisions based on the
relative severity of the environmental
impact of proposed discharges of
dredged or fill material into waters of
the United States.
2. Background: The Guidelines are the
substantive environmental standards by
which all Section 404 permit
applications are evaluated. The
Guidelines, which are binding
regulations, were published by the
Environmental Protection Agency at 40
CFR Part 230 on December 24, 1980.
The fundamental precept of the
Guidelines is that discharges of dredged
or fill material into waters of the United'
States, including wetlands, should not
occur unless it can be demonstrated that
such discharges, either individually or
cumulatively, will not result in
unacceptable adverse effects on the
aquatic ecosystem/The Guidelines
specifically require that "no discharge
of dredged or fill material shall be
permitted if there is a practicable
alternative to the proposed discharge
which would have less adverse impact
.on the aquatic ecosystem, so long as the
alternative does not have other
significant adverse environmental
consequences." 40 CFR 230.10(a). Based
on this provision, the applicant is
required in every case (irrespective of
whether the discharge site is a special
aquatic site or whether the-activity
associated with the discharge is water
dependent) to evaluate opportunities for
use of non-aquatic areas and other .
aquatic sites that would result in less
adverse impact on the aquatic
ecosystem. A permit cannot be issued,
therefore, in circumstances where a less
environmentally damaging practicable
alternative for the proposed discharge
exists (except as provided for under
Section 404(b) (2))'. •
3. Discussion: The'Guidelines are, as
noted above, binding regulations. It is
important to recognize, however, that.
this regulatory status does not limit the
inherent flexibility provided in the
Guidelines for implementing these
provisions. The preamble to the
Guidelines is very clear in this regard:
Of course, as the regulation itself makes
clear, a certain amount of flexibility is still
intended. For example, while the ultimate
conditions of compliance are "regulatory",
the Guidelines allow some room for
judgment in determining what must be done
to arrive at a conclusion that those conditions
have or have not been met.
Guidelines Preamble, "Regulation
versus Guidelines", 45 Federal Register
85336 (December 24-, 1980).
Notwithstanding this flexibility, the
record must contain sufficient . "
information to demonstrate that the
proposed discharge complies with the
requirements of Section 23040(a) of the
Guidelines. The amount of information
needed to maker such a determination
and the level of scrutiny required by the
Guidelines is commensurate with the
severity of the environmental impact (as
determined by the functions of the
aquatic resource and the nature of the
•proposed activity) and the scope/cost of
the project. -
a. Analysis Associated with Minor
Impacts:
The Guidelines do not contemplate
that the same intensity of analysis will
be required for all types of projects but
instead envision a correlation between
the scope of the evaluation and the
potential extent of adverse impacts on
the aquatic environment. The
introduction to Section 230.10(a)
recognizes that the level of analysis
required may vary with the-nature and
complexity of each individual case: •
Although all requirements in §230.10 must
be met, the compliance evaluation
procedures will vary to reflect the •
. seriousness of the potential for adverse
impacts on the aquatic ecosystems posed by
specific dredged or fill material discharge
activities. >•
'40 CFR 230.10 ' ,
Similarly, Section 230.6
("Adaptability") makes clear that the
Guidelines:
allow evaluation and documentation for a
variety of activities, ranging from those'with
large,, complex impacts on the. aquatic
environment to those for which the impact is
likely to be innocuous. It is unlikely that the
Guidelines will apply in their entirety to any .
one activity, no matter how complex. It is
anticipated that substantial numbers of
permit applications will be for minor, routine
activities that have little, if any, potential for
significant degradation of the aquatic
environment. It generally is not intended or
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Federal Register / Vol. 62, No. 110 / Monday, June 9, 1997 / Notices
expected that extensive testing, evaluation or
analysis will be needed to make findings of
compliance In such routine cases.
40 CFR 230.6(9) (emphasis added)
Section 230.6 also emphasizes that
when making determinations of •
compliance with the Guidelines, users:
must recognize the different levels of effort
that should be associated with varying
degrees of impact and require or prepare
commensurate documentation. The level of
documentation should reflect the
significance and complexity of the discharge
activity.
40 CFR 230.6(b) (emphasis added)
Consequently, the Guidelines clearly
afford flexibility to adjust the stringency
of the alternatives review for projects
that would have only minor impacts.
Minor impacts are associated with
activities that generally would have
little potential to degrade the aquatic
environment and include one, and
frequently more, of the following
characteristics: are located in aquatic
resources of limited natural function;
are small in size and cause little direct
impact; have little potential for
secondary or cumulative impacts; or
cause only temporary impacts. It is
important to recognize, however, that in
some circumstances even small or
temporary fills result in substantial
impacts, and that in such cases a more
detailed evaluation is necessary. The
Corps Districts and EPA Regions will,
through the standard permit evaluation
process, coordinate with the U.S. Fish
and Wildlife Service, National Marine
Fisheries Service and other appropriate
state and Federal agencies in evaluating
the likelihood that adverse impacts
would result from a particular proposal.
It is not appropriate to consider
compensatory mitigation in determining
whether a proposed discharge will
cause only minor impacts for purposes
of the alternatives analysis required by
Section 230.10(a).
In reviewing projects that have the
potential for only minor impacts on the
aquatic environment. Corps and EPA
field offices are directed to consider, in
coordination with state and Federal
resource agencies, the following factors:
(1) Such projects by their nature should not
cause or contribute to significant degradation
individually or cumulatively. Therefore, it
generally should not be necessary to conduct
or require detailed analyses to determine
compliance with Section 230.10(c).
(ii) Although sufficient information must
be developed to determine whether the
proposed activity is in fact the least
damaging practicable alternative, the
Guidelines do not require an elaborate search
for practicable alternatives if it is reasonably
anticipated that there are only minor
differences between the environmental
impacts of the proposed activity and
potentially practicable alternatives. This
decision will be made after consideration of
resource agency comments on the proposed
project. It often makes sense to examine first
whether potential alternatives would result
in no identifiable or discernible difference in
impact on the aquatic ecosystem. Those
alternatives that do not may be eliminated
from the analysis since Section 230.10(a) of
the Guidelines only prohibits discharges
when a practicable alternative exists which
would have less adverse impact on the
aquatic ecosystem. Because evaluating
practicability is generally the more difficult
aspect of the alternatives analysis, this
approach should save time and effort for both
the applicant and the regulatory agencies.'
By initially focusing the alternatives analysis
on the question of impacts on the aquatic
ecosystem, it may be possible to limit (or in
some instances eliminate altogether) the
number of alternatives that have to be
evaluated for practicability.
(iii) When it is determined that there is no
identifiable or discernible difference in
adverse impact on the environment between
the applicant's proposed'alternative and all
other practicable alternatives, then the
applicant's alternative is considered as
satisfying the requirements of Section
230.10(a).
(iv) Even where a practicable-alternative
exists that would have less adverse impact,on
the aquatic ecosystem, the Guidelines allow
it to be rejected if it would have "other
significant adverse environmental
consequences." 40 CFR 230.10(a) As
explained in the preamble, this allows for
consideration of "evidence of damages to
other ecosystems in deciding whether there
is a 'better' alternative." Hence, in applying
the alternatives analysis required by the
Guidelines, it is not appropriate to select an
alternative where minor impacts on the
aquatic environment are avoided at the cost
of substantialimpacts to other natural
environmental values.
(v) in cases of negligible or trivial impacts
(e.g., small discharges to construct individual
driveways), it may be possible to conclude
th'at no alternative location could result in
less adverse impact on the aquatic
environment within the meaning of the
Guidelines. In such cases, it may not be
necessary to conduct an offsite alternatives
analysis but instead require only any
practicable onsite minimization.
This guidance concerns application of
the Section 404(b)(l) Guidelines to
projects with minor impacts. Projects
which may cause more than minor
impacts on the aquatic environment,
either individually or cumulatively, ,
should be subjected to a proportionately
more detailed level of analysis to
determine compliance or
noncompliance with the Guidelines.
1 In certain instances, however, it may be easier
to examine practicability first. Some projects may
be so site-specific (e.g.. erosion control, bridge
replacement) that no offsite alternative could be
practicable. In such cases the alternatives analysis
may appropriately be limited to onsite options only.
Projects which cause substantial
impacts, in particular, must be
thoroughly evaluated through the •
standard permit evaluation process to
determine compliance with all
provisions of the Guidelines.
b. Relationship between the Scope of
Analysis and the Scope/Cost of the
Proposed Project:
The Guidelines provide the Corps and
EPA with discretion for determining the
necessary level of analysis to support a
conclusion as to whether or not an
alternative is practicable. Practicable
alternatives are those alternatives that
are "available and capable of being done
after taking into consideration cost,
existing technology, and logistics in
light of overall project purposes.'' 40
CFR 230.10 (a) (2). The preamble to the
Guidelines provides clarification on
how cost is to be considered in the
determination of practicability.
Our intent is to consider those alternatives
which are reasonable in terms of the overall
scope/cost of the proposed project. The 'term '
economic [for which the term "cost" was
substituted in the final rule] might be
construed to include consideration of the
applicants financial standing, or investment,
or market share, a cumbersome inquiry
which is not necessarily 'material to the
objectives of the Guidelines.
Guidelines Preamble, "Alternatives", 45
FR 85339 (December 24, 1980)
(emphasis added).
Therefore, the level of analysis
required for determining which
alternatives are'practicable will vary
depending on the type of project
proposed. The determination of what
constitutes an unreasonable expense
should generally consider whether the
projected cost is substantially greater
than the costs normally associated with
the-particular type of project. Generally,
as the scope/cost of the project
increases, the level of analysis should
also increase. To the extent the Corps
obtains information on the costs
associated with the project, such
information may be considered when
making a determination of what
constitutes an unreasonable expense.
The preamble to the Guidelines also
states that "[i]f an alleged alternative is
unreasonably expensive to the
applicant, the alternative is not
'practicable.'" Guidelines Preamble,
"Economic Factors", 45 FR 85343
(December 24, 1980). Therefore, to the
extent that individual homeowners and
small businesses may typically be
associated with small projects with
minor impacts, the nature of the
• applicant may also be. a relevant
consideration in determining what
' constitutes a practicable alternative. It is
important to emphasize, however, that it
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Federal Register / Vol. 62, No. 110 / Monday, June 9, 1997 /Notices
31499
is not a particular .applicant's financial
standing that is the primary
consideration for determining
practicability, but rather characteristics
of the project and what constitutes a
reasonable expense for these projects
that are most relevant to practicability
determinations.
4. The burden of proof to demonstrate.
compliance with-the Guidelines rests
with the applicant' where insufficient
information is1 provided to determine
compliance, the Guidelines require that
no permit be issued. 400 CFR
230.12 (a) (3) (iv):
5. A reasonable, common sense
approach in applying the requirements
of the Guidelines' alternatives analysis
is fully consistent with sound.
environmental protection. The
Guidelines clearly contemplate that
reasonable discretion should be applied
based on the nature of the aquatic
resource and potential impacts of a
proposed activity in determining
compliance with the alternatives test.
Such an approach encourages effective
decisionmaking and fosters a better
understanding and enhanced
confidence in the'Section 404 program.
6. This guidance is consistent with
the February 6, 1990 "Memorandum of
Agreement Between the Environmental
Protection'Agency and the Department
of the Army Concerning the ,
Determination of Mitigation under the '
Clean Water Act Section 404(b)(l)
Guidelines."
Signed August 23, 1993.
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and
Watersheds, U.S. Environmental Protection
Agency. • , • • . •
Signed August 23, 1993.
Michael L. Davis,
Office of the Assistant Secretary of the Army
(Civil Works), Department of the Army.
Memorandum to the Field
.Subject: Establishment and Use of
Wetland Mitigation Banks in the
Clean Water Act Section 404
Regulatory Prograrp , •
1. This memorandum provides
general guidelines for the establishment
and use of wetland mitigation banks in
the Clean Water Act Section 404
regulatory program. This 'memorandum
serves as interim guidance pending
completion of Phase I of by. the Corps
of Engineers' Institute for Water
Resources study on wetland mitigation
banking,2 at,which time this guidance
2 The Corps-of Engineers Institute for Water
Resources, under the authority of Section 307(d) of
the Water Resources Development Act of 1990, is
undertaking a comprehensive two-year review and
evaluation of wetlanci mitigation banking to assist
will be reviewed and any appropriate
revisions will be incorporated into final
guidelines.
2. For purposes of this guidance,
wetland mitigation banking refers to the
1 restoration, creation, enhancement, and,
in exceptional circumstances,
preservation of wetlands or other
aquatic habitats expressly for the
purpose of providing compensatory
mitigation In advance of discharges into
wetlands permitted under the Section
404 regulatory program. Wetland
mitigation banks can have several
advantages over individual mitigation
projects, some of which are listed
below: . ' .
(a) Compensatory mitigation can be
implemented and functioning in
• advance of project impacts, thereby
reducing temporal losses of wetland
functions and uncertainty over whether .
the mitigation will be successful in
offsetting wetland losses.
(b); It may be more ecologically, '
advantageous for maintaining the
integrity of the aquatic ecosystem to
consolidate compensatory mitigation for
impacts to many smaller, isolated or
fragmented habitats into a single large
parcel or contiguous parcels.'
(c) Development of a wetland
mitigation bank can bring together
financial resources and planning and
scientific expertise not practicable to.
many individual mitigation proposals.
This consolidation of resources can
increase the potential for the
establishment and long-term
management of successful mitigation.
(d) Wetland mitigation banking
proposals may reduce regulatory
uncertainty and provide more cost- '
effective compensatory mitigation
' opportunities. • .
3.; The Section 404(b)(l) Guidelines
(Guidelines), as clarified by the
"Memorandum of Agreement
Concerning the Determination of
Mitigation under the Section 404(b)(l)
Guidelines" (Mitigation MOA) signed
February 6, 1990, by the Environmental
Protection Agency and the Department
of the Army, establish a mitigation "
sequence that is used in the evaluation
of individual permit applications.
Under this sequence, all appropriate
and practicable steps must be
undertaken by the applicant to first
avoid and then minimize adverse
impacts to the aquatic ecosystem.
Remaining unavoidable impacts must
then be offset through compensatory
mitigation to the extent appropriate and
in the development ofa national policy on this
issue. The interim summary report documenting the
results of the first phase of the study is scheduled
for compjetion "in the fall of 1993.
practicable. Requirements for
compensatory mitigation may be
satisfied through the use of wetland
mitigation banks, so long as their use is
consistent with standard practices for
evaluating compensatory mitigation
proposals outlined in the Mitigation
MOA. It is important to emphasize that.
given the mitigation sequence
requirements described above, permit
applicants should not anticipate that the
establishment of, or participation in, a
. ' wetland mitigation bank will ultimately
lead to a determination of compliance
with the Section 404(b)(l) Guidelines
without adequate demonstration that
• impacts associated with the proposed
discharge have been avoided and
minimized to the extent practicable.
4. The agencies' preference for 6n-site,
in-kind.compensatory mitigation does
not preclude the use of wetland
mitigation banks" where it has been
determined by the Corps, or other
appropriate permitting agency, in
coordination with the Federal resource
agencies through the standard permit
evaluation process, that the use of a
particular mitigation bank, as
compensation for proposed wetland-
impacts would be appropriate for
offsetting impacts to the aquatic'
ecosystem. In making such a
determination, careful consideration
must be given to wetland functions, ; '
landscape position, and affected species
populations at both the impact and ,-
mitigation bank sites. In addition,
compensation for wetland impacts
. should occur, where appropriate and
practicable, within the same watershed
as the impact site. Where a mitigation
bank is being developed in conjunction
with a,wetland resource planning
initiative (e.g.. Special Area
Management Plan, State Wetland
Conservation Plan) to satisfy particular
wetland restoration objectives, and . s
permitting agency will determine, in
coordination with the Federal resource
agencies, whether use of the bank
should be considered an appropriate
form of compensatory mitigation for
impacts occurring within the same
watershed.
5. Wetland mitigation banks should
generally be in place and functional
before credits may be used to offset
permitted wetland losses. However, it
may be appropriate to allow incremental
distribution of credits-corresponding to
the appropriate stage of successful
establishment of wetland functions.
Moreover, variable mitigation ratios
(credit acreage to impacted wetland
acreage) may be used in such '
circumstances to reflect, the wetland
functions attained at a bank site at a
particular point in time. For example,
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higher ratios would be required when a
bank is not yet fully functional at the
time credits are to be withdrawn.
6. Establishment of each mitigation
bank should be accompanied by the
development of a formal written
agreement (e.g., memorandum of
agreement) among the Corps, EPA, other
relevant resource agencies, and those
parties who will own, develop, operate
or otherwise participate in the bank.
The purpose of the agreement is to
establish clear guidelines for
establishment and use of the mitigation
bank. A wetlands mitigation bank may
also be established through issuance of
a Section 404 permit where establishing
the proposed bank involves a discharge
of dredged or fill material into waters of
the United States. The banking
agreement or, where applicable, special
conditions of the permit establishing the
bank should address the following
considerations, where appropriate:
(a) Location of the mitigation bank
(b) Goals and objectives for the mitigation
bank project;
(c) Identification of bank sponsors and
participants;
(d) Development and maintenance plan;
(e) Evaluation methodology acceptable to all
signatories to establish bank credits and
assess bank success in meeting the
project goals and objectives;
(0 Specific accounting procedures for
tracking crediting and debiting;
(g) Geographic area of applicability;
(h) Monitoring requirements and
responsibilities;
(!) Remedial action responsibilities including
funding; and
(j) Provisions for protecting the mitigation
bank in perpetuity.
Agency participation in a wetlands
mitigation banking agreement may not,
in any way, restrict or limit the
authorities and responsibilities of the
agencies.
7. An appropriate methodology,
acceptable to all signatories, should be
identified and used to evaluate the
success of wetland restoration and
creation efforts within the mitigation
bank and to identify the appropriate
stage of development for issuing
mitigation credits. A full range of
wetland functions should be assessed.
Functional evaluations of the mitigation
bank should generally be conducted by
a multi-disciplinary team representing
involved resource and regulatory
agencies and other appropriate parties.
The same methodology should be used
to determine the functions and values of
both credits and debits. As an
alternative, credits and debits can be
based on acres of various types of
wetlands (e.g., National Wetland
Inventory classes). Final determinations
regarding debits and credits will be
made by the Corps, or other appropriate
permitting agency, in consultation with
Federal resource agencies.
8. Permit applicants may draw upon
the available credits of a third party
mitigation bank (i.e., a bank developed
and operated by ari entity other than the
permit applicant). The Section 404
permit, however, must state explicitly
that the permittee remains responsible
for ensuring that the mitigation
requirements are satisfied.
9. To ensure legal enforceability of the
mitigation conditions, use of mitigation
bank credits must be conditioned in the
Section 404 permit by referencing the
banking agreement or Section 404
permit establishing the bank; however,
such a provision should not limit the
responsibility of the Section 404
permittee for satisfying all legal
requirements of the permit.
Signed August 23, 1993. -
Robert H. Wayland, III,'
Director, Office of Wetlands. Oceans, and
Watersheds, U.S. Environmental Protection
Agency.
Signed August 23, 1993.
Michael L. Davis,
Office of the Assistant Secretary of the Army
(Civil Works), Department of the Army.
Regulatory Guidance Letter (RGL 93-3)
RGL 93-3, issued: September 13, 1993,
Expires: not applicable
Subject: Rescission of Regulatory
Guidance Letters (RGL) 90-5, 90-7,
and 90-8
1. On 25 August 1993 the final
"Excavation Rule" was published in the
Federal Register (58 FR 45008) and
becomes effective on 24 September
1993. This regulation modifies the
definition of "Discharge of Dredged
Material" to address landclearing
activities (see 33 CFR 323.2(d));
modifies the definitions of "Fill .
Material" and "Discharge of Fill
Material" to address the placement of
pilings (see 33 CFR 323.2 (e) and (£) and
323.3(c)); and modifies the definition of
"waters of the United States" to address
prior converted cropland (see 33 CFR
328. (a) (8)).
2. Therefore, RGL 90-5, Subject:
"Landclearing Activities Subject to
Section 404 Jurisdiction"; RGL 90-7,
Subject: "Clarification of the Phrase
'Normal Circumstances' as it pertains to
Cropped Wetlands"; and RGL 90-8,
Subject: "Applicability of Section 404 to
Pilings"; are hereby rescinded effective
24 September 1993. Furthermore,
although RGL 90-5, Subject:
"Landclearing Activities Subject to
Section 404 Jurisdiction" expired on 31
December 1992 it should continue to be
applied until 24 September 1993,
3: In addition, RGL's 90-5, 90-7, and
90-8 as of 24 September 1993 will no
longer be used for guidance since the
•guidance contained in those RGL's has
been superseded by the regulation.
For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and
Readiness Division, Directorate of Civil
Works.
Regulatory Guidance Letter (RGL 94-1)
Issued: 23 May 1994, Expires: 31
December 1999
• Subject: Expiration of Geographic
Jurisdictional Determinations.
1. Regulatory Guidance Letter (RGL)
90-6, Subject: "Expiration Dates for
Wetlands Jurisdictional Delineations" is
extended until 31 December 1999,
subject to the following revisions.
2. This guidance should be applied to
all Jurisdictional determinations for all
waters of the United States made
pursuant to Section 10 of the Rivers and
Harbors Act of 1899, Sectidn 404 of the
Clean Water Act, and Section "103 of the
. Marine Protection Research and
Sanctuaries Act of 1972.
"3. To be consistent with paragraph
IV.A. of the 6 January 1994, interagency
Memorandum of Agreement Concerning
the Delineation of Wetlands for
Purposes of Section 404 of the Clean
Water Act and Subtitle B of the Food
Security Act, all U.S. Army Corps of
Engineers geographic Jurisdictional
determinations shall be in writing and -
normally remain valid for a period of
five years. The Corps letter (see
paragraph 4.(d) pf RGL 90-6) should
include a statement that the
Jurisdictional determination is valid for
a period of five years from the date of
the letter unless new information
warrants revision of the determination
before the expiration date.
4. For wetland Jurisdictional
delineations the "effective date of this
RGL" referred to in paragraphs 4 and 5
of RGL 90-6 was and remains 14 August
1990. For Jurisdictional determinations,'
other than wetlands Jurisdictional
delineations, the "effective date of this
RGL" referred to in paragraphs 4 and 5
of RGL 90-6 will be the date of this
RGL.
5. Previous Corps written
Jurisdictional.determinations, including
wetland Jurisdictional delineations,
with a validity period of three years •
remain valid for the stated period of
three years. The district engineer is not
required to issue new letters to-extend
such period from three years to a total
of five years. However, if requested to
do so, the district engineer will
normally extend the three year period to
a total of five years unless new .
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31501
information warrants a new
jurisdictional determination.
6. Districts are not required to issue a
public notice on this guidance but may
do so at their discretion.
7. This guidance expires on 31
December 1999 unless, sooner revised or
rescinded. , • .
For the Director of Civil Works.
John P. Elmore.
Chief; Operations, Construction and
Readiness Division Directorate of Civil Works.
Regulatory Guidance Letter (RGL.94-2)
Issued: 17 AUGUST 1994, Expires: 31
DEC 1999 .
Subject: Superfund Projects
1. Regulatory Guidance Letter (RGL)
85-07, subject: "Superfund Projects" is
hereby reissued (copy enclosed).
2. This RGL was previously extended
by RGL 89-2, Although the extension
expired, RGL 85^07 has continued to be
U.S. Army Corps of Engineers policy.
3. This'-guidance expires 31,December
1999 unless sooner revised or rescinded.
For the Director of Civil Works.
John P. Elmore, : .
Chief. Operations. Construction and
Readiness Division, Directorate of Civil
Works.
Encl
Regulatory Guidance Letter (RGL 85-7)
Issued:' 5 July 1985, Expires DEC 1987 -
Subject: Superfund Projects '
1. Recently, the Chief Counsel, Mr. •
Lester Edelman, responded to a letter
from Mr. William N. Hedeman, Jr.,
Director, Office of Emergencyand
Remedial Response, Environmental
Protection Agency (EPA) which dealt
with the need for Department of Army
authorizations for the Comprehensive
Environmental Response, Compensation
and'Liability Act (CERCLA) actions.
This letter summarizes Mr. Edelman's
opinion and provides operating
guidance for field interaction with the
EPA.
2. The EPA's basic position is that
Congress did not intend for CERCLA
response actions to be subject to other
environmental laws. Rather, as a matter
of sound practice, CERCLA response
actions generally should meet the
standards established by those laws.
Consequently, it is the EPA's position
that neither it nor the states, in pursuing
response actions at the location of the
release or threatened release under the
authority of CERCLA, are required to
obtain permits under Section 404 of the
Clean Water Act or Section 10 of the
Rivers and Harbors Act for those
actions.
3. Mr. Edelman stated in part that he
has some reservations about the position
that the EPA has, taken. Nevertheless, he
.recognizes that the EPA has the primary
authority for the interpretation and
application of CERCLA, and therefore
would defer to trie EPA's reading of its
own statutory authorities, at least for the
time being.
4. In light of this legal opinion, FOAs
should not require applications for the
EPA or state response actions at the
location of the release or threatened
release in pursued under the authority
of CERCLA. Any permit applications in
process should be terminated.
5. Both the EPA and OCE believe that
the FOAs expertise in assessing the
public interest factors for dredging and-
filling operations can contribute to the
overall quality of the CERCLA response
action. The .Director of Civil Works will
be establishing a group from his staff to
work with the EPA staff to develop a
framework for integrating the Corps
Section 10, Section 404 and. if
appropriate, Section 103 concerns into
the EPA's substantive Superfund
reviews. .. ' .
6. Until specific guidance is provided
from OCE, FOAs should provide
technical support to the EPA regions
and/or the states on matters within their
field of expertise.
For the Chief of Engineers.
C.E.Edgar III
Regulatory Guidance Letter (RGL 95-1) .
Issued: 31 March 1995, Expires: 31
December 2000 .
Subject: Guidance on Individual Permit
Flexibility for Small Landowners
1. Enclosed is a memorandum for the
field signed by the Acting Assistant
Secretary of the Army (Civil Works) and
the Environmental Protection Agency.
dated 6 March 1995. This memorandum
provides guidance on flexibility that the
U.S. Army Corps of Engineers should
apply when making determinations of
compliance with the Section 404(b)(l)
Guidelines with regard to the
alternatives analysis. -
2. This memorandum should be '
implemented immediately. It constitutes
an important aspect of the President's
Plan for protecting the Nation's
wetlands, "Protecting America's
Wetlands: A Fair, Flexible, and Effective
Approach" (published on 24 August
1993). :
3. This guidance expires on 31
December 2000 unless sooner revised or
rescinded.
For the Director of Civil Works.
Daniel R. Bums,
Chief, Operations, Construction and
Readiness Division, Directorate'of Civil
Works. '' • •-...-
Encl - -. - -: .
United States Environmental Protection
' Agency
Off ice of Water
Washington, DC 20460
United States Department of the Army
Office of the Assistant Secretary
Washington, DC 20310-0103
Memorandum' for the Field, March 6
1995
Subject: Individual Permit Flexibility
for Small Landowners
In order to clearly affirm the
flexibility afforded to small landowners
under Section 404 of the Clean Water
Act, this policy clarifies that for
discharges of dredged or fill material
affecting up to two acres of non-tidal
wetlands for the construction or
expansion of a home or farm building,
or expansion of a small business, it is
presumed that alternatives located on •
property not currently owned by the
applicant are not practicable under the
.Section 404(b)(l) Guidelines.
Specifically, for those activities -
involving discharges of dredged or fill
material affecting up to two acres into
jurisdictional wetlands for:
. (1) The construction or expansion of
a single family home and attendant
features, such-as a driveway, garage,
storage shed, or septic field;
(2) The construction or expansion of
a barn or other farm building; or
(3) The expansion of a small business
facility; which are not otherwise
covered by a general permit, it is
presumed that alternatives located on
property not currently owned by the
applicant are not practicable under the
Section 404(b)(l) Guidelines. The
Guidelines' requirements to
appropriately and practicably minimize
and compensate for any adverse
environmental impacts of such activities
remain.
Discussion
• The Clean Water Act Section 404 '
regulatory program provides that the
Army Corps of Engineers evaluate
permit applications for the discharge of
dredged Or fill material into waters of
the U.S., including, wetlands, in
accordance with regulatory
requirements of the Section 404(b)(l)
Guidelines (Guidelines). The Guidelines
are substantive environmental criteria
used in evaluating discharges of
dredged or fill material.
The Section 404(b)(l) Guidelines
establish a mitigation sequence that
provides a sound framework to ensure
that the environmental impacts of
permitted actions are acceptable. Under'
this framework, there is a three-step
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Federal Register / Vol. 62, No. 110 / Monday, June 9, 1997 / Notices
sequence for mitigating potential
adverse impacts to the aquatic
environment associated with a proposed
discharge—first avoidance, then
minimization, and lastly compensation
for unavoidable impacts to aquatic
resources.
The Guideline's mitigation sequence
is designed to establish a consistent
approach to be used in ensuring that all
practicable measures have been taken to
reduce potential adverse impacts
associated with proposed projects in
wedands and other aquatic systems. The
Guidelines define the term
"practicable" as "available and capable
of being done [by the applicant] after
taking into consideration cost, existing
technology, and logistics in light of
overall project purposes" (40 CFR
230.3 (q)). The first step in the sequence
requires the evaluation of potential
alternative sites under § 230.10(a) of the
Guidelines, to locate the proposed
project so that aquatic impacts are
avoided to the extent practicable.
This policy statement clarifies that,
for the purposes of the alternatives
analysis, it is presumed that practicable
alternatives are limited to property
owned by the permit applicant in
circumstances involving certain small
projects affecting less than two acres of
non-tidal wetlands. This presumption is
consistent with the practicability
considerations required under the
Guidelines and reflects the nature of the
projects to which the presumption
applies—specifically, the construction
or expansion of a single family home
and attendant features, the construction
or expansion of a barn or other farm
building, or the expansion of a business.
For such small projects that would
solely expand an existing structure, the
basic project purpose is so tied to the
existing structures owned by the
applicant, that it would be highly
unusual that the project could be
practicably located on other sites not
owned by the applicant. In these cases,
such as construction of driveways,
garages, or storage sheds, or with home
and barn additions, proximity to the
existing structure is typically a
fundamental aspect of the project
purpose.
In the evaluation of potential
practicable alternatives, the guidelines
do not exclude the consideration of sites
that, while not currently owned by the
permit applicant, could reasonably be
obtained to satisfy the project purpose.
However, it is the experience of the
Army Corps of Engineers and EPA that
areas not currently owned by the
applicant have, in the great majority of
circumstances, not been determined to
be practicable alternatives in cases
involving the small landowner activities
described above. Cost, availability, and
logistical and capability considerations
inherent in the determination of
practicability under the guidelines have
been the basis for this conclusion by the
agencies.
The agencies recognize that the
presumption characterized in this
policy statement may be rebutted in
certain circumstances. For example, a
more thorough review of practicable
alternatives would be warranted for
individual sites comprising,a
subdivision of homes, if following
issuance of this policy statement, a real
estate developer subdivided a large,
contiguous wetlands parcel into
numerous parcels. In addition, the
presumption is applicable to the
expansion of existing small business
facilities. Small businesses are typically
confined to only one location and with
economic and logistical limitations that
generally preclude the availability of
practicable alternative locations to meet
their expansion needs. Conversely,
larger businesses with multiple
locations and greater resources are
expected to consider opportunities to
practicably avoid adverse aquatic
impacts by evaluating off-site
alternatives.
Finally.it is important to note that this
presumption of practicable alternatives
is intended to apply to the individual
permit process. Alternatives are not
evaluated for activities covered by
general permits. Many activities related
to the construction or expansion of a
home, farm, or business, are already
covered by a general permit. In addition,
in conjunction with the issuance of this
policy statement, a nationwide general
permit authorizing discharges related to
single family residential development is
being proposed and will be available for
public comment.
If you have any questions regarding
this memorandum, please contact
Gregory Peck of F,PA's Wetlands
Division at (202) 260-8794 or Michael
Davis of the Corps of Engineer's
Regulatory Branch at (202) 272-0199.
Robert Perciasepe, . '
Assistant Administrator for Water, U.S.
Environmental Protection Agency.
John Zirschky,
Acting Assistant Secretary of the Army (Civil
Works).
Regulatory Guidance Letter (RGL 96-1)
Issued: 5 November ,1996, EXPIRES: 31
December 2001
Subject: Use of Nationwide Permit
Number 23 for U.S. Coast Guard
Categorical Exclusions
1. We have concurred with the
categorical exclusions (CE). (enclosure)
submitted by the United States Coast
Guard (Coast Guard) pursuant to the
subject nationwide permit number 23 at
33 CFR Part 330, including a
notification requirement for CE numbers
(6) and (8). The U.S. Army Corps of
Engineers published the Coast Guard
CEs in 61 FR 18573, April 26, 1996, for
comment regarding the applicability of
nationwide permit number 23 for those
activities requiring Department of the
Army authorization. This Regulatory
Guidance Letter supersedes the Coast
Guard CEs previously approved under
nationwide permit number 23 in
accordance with Regulatory Guidance
Letter 83-5, dated 18 April 1983.
2. The Corps has conditioned the
nationwide permit to require
notification to the appropriate Corps
office prior to .beginning work under '
Coast Guard CE number (6) to address
potential impacts to wetlands
(notification is only required to the
Corps for projects where wetland
impacts are proposed) and number (8) to
address potential impacts/encroachment
on Federal navigation projects. The
District Engineer will review the
notification and will either verify
whether the activity meets the terms-
and conditions of nationwide permit 23,
will require evaluation under standard
permit procedures, or that additional
conditioning of the activity is necessary -
to ensure that no unacceptable adverse
effects will result to wetlands for
projects under CE number (6) or to a
Federal navigation project under CE
number (8). Authorization of the Coast
Guard CEs does not restrict the Division
or District Engineers' authorities to
exercise discretionary authority, or the,
Corps modification, suspension or
revocation procedures. Development of
local procedures to streamline
coordination is encouraged where a
Corps division or district further
conditions the nationwide permit to
require a notification for additional
activities.
3. It should be noted that the Coast
Guard provided a complete listing of
CEs, including many that do not require
Department of the Army authorization.
However, to reduce confusion when
referencing the CE number, we have
included all Coast Guard CEs in the
enclosure.
4. This guidance expires 31 December
2001 unless sooner revised or rescinded.
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31503
For the Director of Civil Works.
•Daniel R. Burns,
Chief. Operations, Construction and
Readiness Division, Directorate of Civil
Works.
Enclosure
U.S. Coast Guard Categorical Exclusion
List ' • •
The following is a consolidated list
prepared from the U.S. Coast Guard
Federal Register notices (59 FR 38654,
July 29, 1994,'60 FR 46317, September
6, 1995, 60 FR 32197, June 20, 1995, and
61 FR 13563, March 27, 1996). The list
does not include the procedures the
U.S. Coast Guard must follow to
determine whether certain activities
qualify for a categorical exclusion.
Notification to the U.S. Army Corps of
Engineers is required prior to initiation
of work for activities conducted under
numbers (6) (notification is only
required to the Corps for projects when
wetland impacts are proposed) and •
number (8).
(1) Routine.personnel, fiscal, and
administrative activities, actions,
procedures, and policies which clearly
do not have any environmental impacts,
such as military and civilian personnel
recruiting, processing; paying, and
record keeping.
(2) Routine procurement activities
and actions for goods and services. •
including office supplies, equipment,
mobile assets, and utility services for
routine administration, operations, and
maintenance.
(3) Maintenance dredging and debris
disposal where no new depths are .
required, applicable permits are
secured, and disposal will be at an
existing approved disposal site.
^ (4) Routine repair, renovation, and
maintenance actions on aircraft and
vessels.
(5) Routine repair arid maintenance of
buildings, roads, airfields, grounds and
equipment, and other facilities which
do not result in a change in functional
use, or an impact on a historically
significant element or settings.
(6) Minor renovations and additions
to buildings, roads, airfields, grounds,
equipment, and other facilities which "
do not result in a chance in functional
use, a historically significant element, or
historically significant setting. (When
wetland impacts are proposed,
notification is required to the"
appropriate office of U.S. Army Corps of
Engineers prior to initiation of work)
(7) Routine repair and maintenance to
waterfront facilities, including mooring
piles, fixed floating piers, existing piers,"
and unburied power cables.
(8) Minor renovations and additions
to waterfront facilities, including
mooring piles, fixed floating piers,
existing piers, and unburied power
cables, which do not reqiaire special,
site-specific regulatory permits.
(Notification is required to the
appropriate office of U.S. Army Corps of
Engineers prior to initiation of work)
(9) Routine grounds maintenance and
activities at units and facilities.
Examples include localized pest
management actions-and actions to
maintain improved grounds (such as
landscaping, lawn care and minor
erosion control measures) that are
conducted in accordance with
applicable Federal, State and local
directives.
(10) Installation of devices to. protect
human or animal life, such as raptor
electrocution prevention devices,
fencing to restrict wildlife movement on
to airfields, and fencing and grating to
prevent accidental entry to hazardous
areas. •
- (11) New construction on heavily
developed portions of Coast Guard
property, when construction, use, and
operation will comply with regulatory
requirements and constraints.
(12) Decisions to decommission
equipment or temporarily discontinue
use of facilities or equipment. This 'does
not preclude the need to review
decommissioning under section 106 of
the National Historic Preservation Act.
(13) Demolition or disposal actions
that involve buildings or structures -.
when conducted in accordance with
regulations applying to removal of
asbestos, PCB's, and other hazardous
materials, or disposal actions mandated '
by Congress. In addition, if the building
or structure is listed, or eligible for
listing, in the National Register of
Historic Places, then compliance with •
section 106 of the National Historic
Preservation Act is required. •
(14) Outleasing of historic lighthouse
properties as outlined in the
Programmatic Memorandum of . .
Agreement between the Coast Guard,
Advisory Council on Historic
Preservation, and the National
Conference of State Historic
Preservation Officers.
(15) Transfer of real property from the
Coast Guard to the General Services
Administration, .Department of the
Interior, and other Federal departments
and agencies, or as mandated by '
Congress; and the granting of leases,
permits, and easements where there is
no substantial change in use of the
property.. '
(16) Renewals and minor amendments
of existing real estate licenses or grants
for use of government-owned real
property where prior environmental
review has determined that no
significant environmental effects would
occur.
(17) New grants or renewal of existing
grants of license, easements, or similar
arrangements for the use of existing
rights-of-way or incidental easements .
complementing the use of existing
rights-of-way for use fay vehicles; for
such existing rights-of-way as electrical,
telephone, and other transmission and
Communications lines; water,
wastewater, stormwater, and irrigation
pipelines, pumping stations, and
irrigation facilities; and for similar
utility and transportation uses.
(18) Defense preparedness training
and exercises conducted on other than
Coast Guard property, where the legal ••
agency or department is not Coast Guard
or Department of Transportation and. the
lead'agency or department has
completed its NEPA analysis-and
documentation requirements..
(19).Defense preparedness training
and .exercise conducted on Coast Guard
property-thatdo not involve
undeveloped property or increase noise
levels over adjacent property and that
involve a limited number of personnel,
such as exercises involving primarily
electric simulation or command post
personnel.
(20) Simulated exercises, including
tactical and logistical exercises that
involve small numbers of personnel. •
(21) Training of an administrative or
classroom nature.
(22) Operations to carry'out maritime
safety, maritime law enforcement,
searclvand rescue, domestic ice
breaking, and oil or hazardous
substance removal programs.
(23) Actions performed as a part of
Coast Guard operations arid the Aids to
Navigation Program to carry out
statutory authority in the area of . • '
establishment of floating and minor
fixed aids to navigation, except
electronic sound signals.
(24) Routine movement of personnel
and equipment, and the routine
movement, handling, and distribution of
nonhazardous materials and wastes in
accordance with applicable regulations.
(25) Coast Guard participation in
disaster relief efforts under the guidance
or leadership of another Federal agency
that has taken responsibility for NEPA .
compliance.
(26) Data gathering, information
gathering, and studies that involve no
physical change to the environment.
Examples include topographic surveys,
bird counts, wetland mapping, and
other inventories.
(27) Natural and cultural resource
management'and research activities that
are in accordance with interagency
agreements and which are designed to
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improve or upgrade the Coast Guard's
ability to manage those resources.
(28) Contracts for activities conducted
at established laboratories and facilities,
to include contractor-operated
laboratories and facilities, on Coast ,
Guard-owned property where all
airborne emissions, waterborne
effluents, external radiation levels,
outdoor noise, and solid and bulk waste
disposal practices are in compliance
with existing applicable Federal, State,
and local laws and regulations.
(29) Approval of recreational
activities (such as a Coast Guard unit
picnic) which do not involve significant
physical alteration of the environment,
increase disturbance by humans of
sensitive natural habitats, or disturbance
of historic properties, and which do not
occur in, or adjacent to, areas inhabited
by threatened or endangered species.
(30) Review of documents, such as
studies, reports, and analyses, prepared
for legislative proposals that did not
originate in DOT and that relate to
matters that are not the primary
responsibility of the Coast Guard.
(31) Planning and technical studies
which do not contain recommendations
for authorization or funding for future
construction, but may recommend
further study. This includes engineering
efforts or environmental studies
undertaken to define the elements of a
proposal or alternatives sufficiently so
that the environmental effects may be
assessed and does not exclude
consideration of environmental matters
in the studies.
(32) Bridge Administration Program
actions which can be described as one
of the following:
(a) Modification or replacement of an "
existing bridge on essentially the same
alignment or location. Excluded are
bridges with historic significance or
bridges providing access to
undeveloped barrier islands and
beaches. (Approach fills regulated by
the U.S. Army Corps or Engineers under
Section 404 of the Clean Water Act will
require a separate individual or general
permit.)
(b) Construction of pipeline bridges
for transporting potable water.
(c) Construction of pedestrian,
bicycle, or equestrian bridges and
stream gauging cableways used to
transport people.
(d) Temporary replacement of a bridge
Immediately after a natural disaster or a
catastrophic failure for reasons of public
safety, health, or welfare.
(e) Promulgation of operating
regulations or procedures for
drawbridges.
(f) Identification of advance approval
waterways under 33 CFR 115.70,
(g) Any Bridge Program action which
is classified as a CE by another
Department of Transportation agency
acting as lead agency for such action.
(33) Preparation of guidance
documents that implement, without
substantive change, the applicable
Commandant Instruction or other
Federal agency regulations, procedures,
manuals, and other guidance
documents.
(34) Promulgation of the following
regulations:
(a) Regulations which are editorial or
procedural, such as those updating
addresses or establishing application
procedures.
(b) Regulations concerning internal
agency functions or organization or
personnel administration, such as
funding, establishing Captain of the Port
boundaries, or delegating authority.
(c) Regulations concerning the
training, qualifying, licensing, and
disciplining of maritime personnel.
(d) Regulations concerning manning,
documentation, admeasurement,
inspection, and equipping of vessels.
(e) Regulations concerning equipment
approval and carriage requirements.
(f) Regulations establishing.
disestablishing, or changing the size of
Special Anchorage Areas or anchorage
grounds.
(g) Regulations establishing,
disestablishing, or changing Regulated
Navigation Areas and security or safety
zones.
(h) Special local regulations issued in
conjunction with a regatta or marine
parade; provided that, if a permit is
required, the environmental analysis
conducted for the permit included an
analysis of the impact of the regulations.
(i) Regulations in aid of navigation,
such as those concerning rules of the
road, International Regulations for the
Prevention of Collisions at Sea
(COLREGS), bridge-to-bridge
communication, vessel traffic services,
and marking, of navigation systems.
(35) Approvals of regatta and marine
parade event permits for the following
events:
(a) Events that are not located in,
proximate to, or above an area
designated as environmentally sensitive
by an environmental agency of the
Federal. State, or local Government. For
example, environmentally sensitive •
areas may include such areas as critical
habitats or migration routes for
endangered or threatened species or
important fish or shellfish nursery areas.
(b) Events that are located in,
proximate to, or above an area
designated as environmentally sensitive
by an environmental agency of the
Federal, State, or local Government and
for which the Coast Guard determines,
based on consultation with the
Government agency, that the event will
not significantly affect the
environmentally sensitive area.
Regulatory Guidance Letter (RGL 96-2)
Issued 12 December 1997, Expires 31
December 2001
Subject: Applicability of Exemptions
under Section 404 (f) to "Deep-
Ripping" Activities in Wetlands
1. Enclosed is a memorandum to the
field jointly signed by the U.S.
Environmental Protection Agency and
U.S. Army Corps of Engineers. The
.memorandum provides guidance
clarifying when "deep-ripping"
activities within wetlands require
Department of Army authorization.
2. This guidance expires 31 December
2001, unless sooner revised or
rescinded.
For the Director of Civil Works.
Daniel R. Burns,
Chief, Operations, Construction, and
Readiness Division, Directorate of Civil
Works.
Enclosure
Department of the Army
U.S. Army Corps of Engineers-
United States Environmental Protection
, Agency
Memorandum to the Field, 12 Dec 1996
Subject: Applicability of Exemptions
under Section 404(f) to "Deep-
Ripping" Activities in Wetlands
Purpose: The purpose of this
memorandum is to clarify the
applicability of exemptions provided
under Section 404 (f) of the Clean
Water Act (CWA) to discharges
associated with "deep-ripping" and
related activities in wetlands.1
Background
1. Section 404'(f) (1) of the CWA
exempts from the permit requirement
certain discharges associated with
normal farming, forestry, and ranching
practices in waters of the United States,
including wetlands. Discharges into
waters subject to the Act associated with
farming, forestry, and ranching practices
identified under Section 404(f)(l) do not
require a permit except as provided
under Section 404(f) (2).
2. Section 404(f)(l) does not provide
a total, automatic exemption for all
activities related to agricultural,
silvicultural, or ranching practices.
' As this guidance addresses primary agricultural-
related activities, characterizations of such practices
have been developed in consultation with experts
at the U.S. Department of Agriculture (USDA),
Natural Resources Conservation Service.
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31505
Rather, Section 404(f)(l) exempts only
those activities specifically identified in
paragraphs (A) through (F), and "other
activities of essentially the same
character as named", [44 FR 34264]. For
example. Section 404(f)(1)(A) lists
• discharges of dredged or fill material .
from "normal farming, silvicultural and
ranching activities, such as plowing;
seeding, cultivating, minor drainage,
harvesting for the production of food,
fiber, and forest products, or upland soil
and water conservation practices."
3. Section 404(f) (1)(A) is limited to
activities that are part of an "established
(i.e., ongoing) farming, silviculture, or
ranching operation." This "established"
requirement is intended to reconcile the
dual intent reflected in the legislative
history that although Section 404
should not unnecessarily restrict
farming, forestry, or ranching from
continuing at a particular site, discharge
activities which could destroy wetlands
or other waters should be subject to
regulation.
4. EPA and Corps regulations [40 CFR
230 and 33 CFR 320] and preamble
defin'e in some detail the Specific
"normal" activities listed in Section
404(f)(l)(A). Three points may be useful
in the current context:
. a. As explained in the preamble to the 1979
proposed regulations, the words "such as"
have been consistently, interpreted as
restricting the section "to the activities
named in the statute and other activities of
essentially the same character as named. '
"and" 'preclude the extension of the
exemption * * * to activities that are unlike •
those named." [44 FR 34264].
b'. Plowing is specifically defined in the
regulations not to include the redistribution
of surface material in a manner which
converts wetlands areas to uplands [See 40
CFR233.35(a)(l)((iii)(D)].
, c. Discharges associated with activities that
establish an agricultural operation in
wetlands where previously ranching had
been conducted, represents a "change in use"
within the meaning of Section 404 (f) (2). ,
Similarly,, discharges that establish forestry
practices in wetlands historically subject to
agriculture also represent a change in use of
1 the site [See 40 CFR 233.35(c)].
5. The statute includes a provision at
Section 404(f)(2) that "recaptures" or
reestablishes the permit requirement for
those otherwise exempt discharges
which: . •
a. Convert an area of the waters of the
U.S. to a new use, and
b.-Impair the flow or circulation of
waters of the' U.S. or reduce the
reach of waters of the U.S.
Conversion of an area of waters of the
U.S. to uplands triggers both provisions
(a) and (b) above. Thus, at a minimum,
any otherwise exempt discharge that
results in the conversion of waters of the
U.S. to upland is recaptured under
Section 404(f)(2); and requires a permit.
It should be noted that irt order to
trigger the recapture provisions of
Section 404 (f) (2); the discharges
themselves need not be the sole cause
of the destruction of the wetland or
other change in use or sole cause of the
reduction or impairment of reach, flow,
or circulation of waters of the U.S.
Rather, the discharges need only be
"incidental to" or "part of an activity
which is intended to or will fpreseeably
bring about that result. Thus, in
applying Section 404 (f) (2), one must
consider discharges in context, rather
than isolation.
Issue: J
1. Questions have been raised
involving "deep-ripping" and related
activities in wetlands and whether
discharges associated with these actions ',
fall within the exemptions at Section
404(f)(l)(A). In addition,.the issue has
been raised whether, if such activities
fall within the exemption, they would
be recaptured under Section 404 (f) (2).
2. "Deep-ripping" is defined as the
mechanical manipulation of the soil to;
break up or pierce highly compacted,
impermeable or slowly permeable ,i
subsurface soil layers, or other similar
kinds of restrictive soil layers. These
practices are typically used to break up
these subsoil layers (e.g., impermeable
soil layer, hardpan) as part of the initial
preparation of the soil to establish an
agricultural or silvicultural operation.
Deep-ripping and related activities are
also used in established farming
operations to break up highly
compacted soil. Although deep-ripping
and related activities may be required
more than once, the activity is typically
not an annual practice. Deep-ripping
and related activities are undertaken to
improve site drainage and facilitate
deep root growth, and often occur to
depths greater than 16 inches and, in
some cases, exceeding 4 feet below the.
surface. As such, it requires the use of
heavy equipment, including bulldozers, .
equipped with ripper-blades, shanks, or
chisels often several feet in length.
Deep-ripping and related activities
involve extending the blades to
appropriate depths and dragging them
through the soil to break up the
restrictive layer.
3. Conversely, plowing is defined in
EPA and Corps regulations [40 CFR part
230 and 33 CFR part 320] as "all forms
of primary tillage * * * used * * * for' .
the'breaking up, cutting, turning over, dr
stirring of soil to prepare it for the
planting of crops" [40 CFR 232.3(d)(4)].
As a general matter, normal plowing
activities involve the annual or at least
regular, preparation of soil prior to
seeding or other planting activities.
According to USD A, plowing gerierally
involves the use of a blade, chisel or
series of blades, chisels, or discs,
usually 8-10 inches in length, pulled
behind farm vehicle to prepare the soil
for the planting of annual crops or to
support an ongoing farming practice.
Plowing is commonly used to break up
the surface of the soil to maintain soil
tilth and to facilitate infiltration
throughout the upper root zone.
Discussion
1. Plowing in wetlands is exempt
from regulation consistent with the
following circumstances:
a. it is conducted as part of an ongoing, .
established agricultural, ' .
silvicultural or ranching operation;
and , •
b. the activity is consistent with the
definition of plowing in EPA and
Corps regulations,[40 CFR 230 and - '
33 CFR 320]; and
c. the plowing is not incidental to an
•activity that results in the
immediate or gradual conversion of
wetlands to non-waters.
2. Deep-ripping and related activities
are distinguishable from plowing and
similar practices (e.g., discing
harrowing) with regard to the purposes
and circumstances under which it is
conducted, the nature of the equipment
that is used, and its effect, including in
particular the impacts to the hydrology
of the'site. '
a. Deep-ripping and related activities
are commonly conducted to depths
exceeding 16 inches, and as, deep as 6-
8 feet below the soil surface to break
restrictive soil layers and improve water-
drainage at sites that have not supported
deeper rooting crops. Plowing depths,
according to USD A, rarely exceed one
foot into the soil and not deeper than 16
inches without the use of special
equipment involving special
circumstances. As such, deep-ripping
and related activities typically involve
the use of specialized equipment,
including heavy mechanized equipment
and bulldozers, equipped with
elongated ripping blades shanks, or. .
chisels often several feet in length.
Moreover, while plowing is generally
associated with ongoing operations,
deep-ripping and related activities are
typically conducted to, prepare a site for
establishing crops not previously.
planted at the site. Although deep-
ripping may have to.be redone at regular,
intervals in some circumstances to
maintain proper soil drainage, the
activity is typically not an annual or
routine practice.
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b. Frequently, deep-ripping and
related activities are conducted as a
preliminary step for converting a
"natural" system or for preparing
rangeland for a new use such as farming
or silviculture. In those instances, deep
ripping and related activities are often
required to break up naturally-occurring
Impermeable or slowly permeable
subsurface soil layers to facilitate proper
root growth. For example, for certain
depressions wetlands types such as
vernal pools, the silica-cemented
hardpan (durapan) or other restrictive
layer traps precipitation and seasonal
runoff creating ponding and saturation
conditions at the soil surface. The
presence of these impermeable or
slowly permeable subsoil layers is
essential to support the hydrology of the
system. Once these layers are disturbed
by activities such as deep-ripping, the
hydrology of the system is disturbed
and the.wetland is often destroyed.
c. In contrast, there are other
circumstances where activities such as
deep-ripping and related activities are a
standard practice of an established on-
going farming operation. For example,
in parts of the Southeast, where there
are deep soils having a high clay
content, mechanized farming practices
can lead to the compaction of the soil
below the oil surface, it may be
necessary to break up. on a regular
although not annual basis, these
restrictive layers in order to allow for
normal root development and
Infiltration, Such activities may require
special equipment and can sometimes
occur to depths greater than 16 inches.
However, because of particular physical
conditions, including the presence of a
water table at or near the surface for part
of the growing season, the activity
typically does not have the effect of
impairing the hydrology of the system
or otherwise altering the wetland
characteristics of the site.
Conclusion
1. When deep-ripping and related
activities are undertaken as part of an
established, ongoing agricultural
silvicultural or ranching operation, to
break up compacted soil layers and
where the hydrology of the site will not
be altered such that it would result in
conversion of waters of the U.S. to
upland, such activities are exempt
under Section 404(f)(l)(A).
2. Deep-ripping and related activities
in wetlands are not exempt, when such
practices are conducted in association
with efforts to establish for the first time
(or when a previously established
operation was abandoned) an
agricultural, silvicultural or ranching
'operation. In addition, deep-ripping and
related activities are not exempt in
circumstances where such practices
would trigger the "recapture" provision
of Section 404 (f)(2):
(a) Deep-ripping to establish a farming
operation at a site where a ranching or
forestry operation was in place is a change
in use of such a site. Deep-ripping and
related activities that also have the effect of
altering or removing the wetland hydrology
of the site would trigger Section 404(f)(2) and
such ripping would require a permit.
(b) Deep-ripping a site that has the effect
of converting wetlands to non-waters would
also trigger Section 404 (f) (2) and such
ripping would require a permit.
3. It is the agencies' experience that
certain wetland types are particularly
vulnerable to hydrological alteration as
a result of deep-ripping and related
activities. Depressional wetland systems
such as prairie potholes, vernal pools
and playas whose hydrology is critically
dependent upon the presence of an
impermeable or slowly permeable
subsoil layer are particularly sensitive to
disturbance or alteration of this subsoil
layer. Based upon this experience, the
agencies have concluded that, as a
general matter, deep-ripping and similar
practices, consistent with the
descriptions above, conducted in prairie
potholes, vernal pools, playas and
similar depressions wetlands destroy
the hydrological integrity of these
wetlands. In these circumstances, deep-
ripping in prairie potholes, vernal pools,
and playas is recaptured under Section
404 (f) (2) and requires a permit under
the Clean Water Act.
Robert H. Wayland III,
Director, Office of Wetlands, Oceans and
Watersheds,.Environmental Protection
Agency.
Daniel R. Burns, '
Cheif, Operations, Construction and
Readiness Division, Directorate of Civil
Works, U.S. Army Corps of Engineers.
[FR Doc. 97-15001 Filed 6-6-97; 8:45 am]
BILLING CODE 3710-92-M
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