NONPOINT SOURCE CONTROL GUIDANCE
HYDROLOGIC MODIFICATIONS
FEBRUARY 1977
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Water Planning & Standards
WASHINGTON.D.C. 20460
-------
NONPOINT SOURCE CONTROL GUIDANCE
HYDROLOGIC MODIFICATIONS
Project Officer
Norman A. Whalen
U. S. ENVIRONMENTAL PROTECTION AGENCY
WATER PLANNING DIVISION
NONPOINT SOURCES BRANCH
WASHINGTON, D. C. 20460
February 1977
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DATE: FEB 1IB77 Wash., D. C. 20460
SUBJECT-. Transmittal of Report Entitled "Nonpoint Source Control Guidance,
Hydrologic Modifications"
*:/•»£. M. Notzon, j^Tinfli Director
\i Water PlanningvQjvision
TO: All Regional Water Division Directors
Attn: Regional 208 and Nonpoint Source Coordinators
TECHNICAL GUIDANCE MEMORANDUM: TECH- 29
Purpose
This memorandum transmits to you the recently prepared nonpoint source
control document.
Guidance
This hydrologic modifications nonpoint source pollution control guidance
document is only one of a series designed to provide State and areawide
208 Agencies, the Federal agencies, and other concerned groups and in-
dividuals with information which will assist them in carrying out their
water-quality planning and implementation responsibilities. It is provided
in accordance with policies and procedures for the "Preparation of Water
Quality Management Plans" (40 CFR, Part 131) which states that "EPA will
prepare guidance concerning the development of water quality management
plans to assist State and areawide planning agencies in carrying out the
provisions of these regulations." Additional documents to be issued will
involve silvicultural (forestry), mining, agricultural and other activities,
The basic guidance information included in this nonpoint source control
document is principally technical in nature and presented in four main
chapters. They include information on the identification and assessment
of existing hydrologic modification nonpoint source problems; analysis
and procedures needed for selection of controls; descriptions of individual
and systems of Best Management Practices (BMP); important considerations
for predicting potential pollution problems from future hydrologic
modifications activities and final plan format.
Enclosure
EPA Form 1320-6 (Rov. 3-76)
-------
ACKNOWLEDGEMENT
The cooperation of EPA and other Federal Government Agency
professionals, and others representative of the general public
in the review of drafts and providing information is appreciated.
-------
PREFACE
Organizations designated to develop comprehensive land and water
use plans impacting on water quality management have a. responsibility
to establish regulations for control of nonpoint pollution sources. The
EPA policy requiring establishment of such regulations is contained in
the "Draft Guidelines for State and Areawide Water Quality Management
Program Development", February 1976. EPA is currently developing
nonpoint source pollution regulatory guidance to provide additional
assistance to State and areawide 208 planning agencies in their nonpoint
source control programs. This guidance document presents Best Manage-
ment Practices (BMP) related to hydrologic modifications that the compre-
hensive plan may incorporate and be implemented through such regulations.
The hydrologic modifications nonpoint source pollution control guidance
document is provided to assist State and areawide 208 planning agencies
in carrying out their water quality management and implementation policies.
Emphasis has been focused on the need to prevent those circumstances and
situations involving comprehensive land and water management plan develop-
ment which will produce nonpoint source pollution as a result of hydrologic
modifications, through application of Best Management Practices. Since
it is recognized that nonpoint source pollution in some degree is caused
by hydrologic modifications, as alternative Best Management Practices,
the plan development decision may be to eliminate the need for a structural
alteration, or to include some non-structural measure which will prevent
the potential pollution from occurring. This document was developed to
assure that if the planning process reached the point that the final decision
identified a need for structural measures, Best Management Practices
of the most suitable type to control nonpoint source pollution would be
included.
ii
-------
TABLE OF CONTENTS
Page
INTRODUCTION 1
DESCRIPTION OF HYDROLOGIC MODIFICATIONS 1
CHANNEL MODIFICATIONS 2
IMPOUNDMENTS 3
VARIOUS CONSTRUCTION ACTIVITIES 3
RESOURCE RECOVERY OPERATIONS 3
WITHDRAWAL AND RECHARGE ACTIVITIES 3
OTHER TYPES OF ACTIVITIES 3
IDENTIFICATION OF POLLUTANTS 4
SEDIMENT 4
NUTRIENTS 4
PESTICIDES 4
HERBICIDES & RODENTICIDES 4
THERMAL 4
CHEMICALS 5
MICROORGANISMS 5
CONSIDERATIONS FOR BEST MANAGEMENT PRACTICES SELECTION 5
PREVENTION AND REDUCTION MEASURES 6
iii
-------
TABLE OF CONTENTS
CHAPTER I
METHODOLOGY FOR ASSESSMENT OF EXISTING PROBLEMS
CAUSED BY HYDROLOGIC MODIFICATIONS 1-1
INTRODUCTION 1-1
SCOPE 1-2
ADVANCE PREPARATION FOR SURVEY EFFORT 1-3
INFORMATION SOURCES 1-3
EVALUATION AIDS 1-5
ON-SITE SURVEY AND ASSESSMENT 1-5
NONPOINT SOURCE POLLUTANTS IDENTIFICATION 1-6
SEDIMENT 1-6
NUTRIENTS 1-8
BIOLOGIC POLLUTANTS 1-9
THERMAL POLLUTION 1-9
CHEMICAL 1-10
ASSESSMENT OF POLLUTION FROM EXISTING HYDROLOGIC
MODIFICATIONS 1-10
MONITORING 1-13
CHAPTER II
PROCEDURES FOR ANALYSIS AND SELECTION OF CONTROLS
FOR HYDROLOGIC MODIFICATIONS II-1
INTRODUCTION n-1
DATA NEEDS FOR ANALYSIS, AND DEVELOPMENT OF BMP II-1
PRECIPITATION DATA H-2
WIND DATA II-2
iv
-------
SOILS AND GEOLOGY II-3
TOPOGRAPHY II-4
RUNOFF DETERMINATIONS II-4
PROCEDURES FOR SELECTING AND IMPLEMENTING BMP II-5
ADEQUATE PLANNING II-6
CONTROLLING EROSION AND SEDIMENT TRANSPORT II-9
CONTROLLING POLLUTANTS OTHE-R THAN SEDIMENTS 11-10
MANAGEMENT OF INCREASED STORMWATER RUNOFF H-ll
MAINTENANCE PRACTICES 11-12
CHAPTER III
SELECTED PRACTICES FOR HYDROLOGIC MODIFICATIONS
CONTROLS III-l
INTRODUCTION III-l
GENERAL........... , •••••• • • • • III-l
CHANNEL MODIFICATIONS III-3
GENERAL. ., •••,••• < HI-3
CLEARING AND SNAGGING III-4
CHANNEL ENLARGEMENTS AND NEW CHANNELS III-4
CHANNEL RE-ALIGNMENTS TO ELIMINATE MEANDERS III-7
FLOODWAYS III-9
RETARDING BASINS FOR TEMPORARY STORAGE Ill-9
DEBRIS RETENTION BASINS III-ll
DRAINAGE DITCHES III-ll
IMPOUNDMENTS 111-12
-------
CONSTRUCTION ACTIVITIES IE-14
RESOURCE RECOVERY OPERATIONS 111-15
WITHDRAWAL AND RECHARGE ACTIVITIES 111-16
CHAPTER IV
METHODOLOGY FOR ASSESSMENT OF POTENTIAL PROBLEMS
RESULTING FROM HYDROLOGIC MODIFICATIONS ACTIVITIES IV-1
INTRODUCTION IV-1
IDENTIFICATION METHODS AND CRITERIA IV-3
PRIMARY CONSIDERATIONS IV-3
SECONDARY CONSIDERATIONS IV-4
ASSESSMENT OUTPUTS IV-5
PRESENTATION FORMAT IV-6
UTILIZATION BY OTHER THAN PLANNING AGENCIES IV-7
INFORMATION SOURCES IS-1
APPENDICES INDEX Al-1
APPENDIX A A-l
APPENDIX B B-l
APPENDIX C C-l
VI
-------
BEST MANAGEMENT PRACTICES
TO MINIMIZE WATER POLLUTION DUE
TO HYDROLOGIC MODIFICATIONS
Introduction
Many development activities such as agricultural and commercial
operations can foster planning to modify natural drainage systems or construct
new drainage systems to accommodate changes in water flows. Modifying
techniques include (1) channel modifications; (2) construction of dams to
impound stream flows; (3) other types of construction activities such as
new or artificial drainage systems to accommodate development; and (4)
resource recovery operations actually located in streambeds, in particular,
mining. In addition, there are many land development activities which,
if not properly controlled, may result in unintended, and often undesirable,
hydrologic modifications. In many instances these activities result in
topographic and ground cover changes which could affect surface runoff
rates, volume and direction adversely. Such effects are often experienced
in areas undergoing rapid urbanization, and farming areas.
Hydrologic modifications may be of local or regional scope, and are
being (or have been) implemented in areas extending throughout the nation,
affecting both intra-and interstate waterways.
Advance planning can limit, through timely management decisions, the
incorporation of conditions which otherwise could add materially to the
pollution potential. Planning can avoid or limit exposure to potential problems
through identification and allowance for natural hazards, such as environment-
ally sensitive areas, limitations imposed by climate and topography, or
land capabilities in terms of soil productivity or vegetative recovery potential.
Evaluating the alternatives of (1), not allowing activities which would necessi-
tate hydrologic modifications, and (2) requiring non-structural measures
for adequate water quality management is an important part of advance
planning. Adoption of either alternative in lieu of a structural measure is,
in itself, the Best Management Practice for that specific situation. As
the title of this document indicates, the guidance included relates to the
third alternative of actually incorporating a structural hydrologic modification,
including appropriate Best Management Practices.
This document has been developed specifically as an aid for the Section
208 Areawide Planning Agency (or other similarly engaged organization)
management level. Its main purpose is to provide guidance for the direction
of staff efforts to incorporate best management in hydrologic modifications
for control of nonpoint source pollution. Nonpoint source pollution is
produced by sources other than those designated as point sources. Technical
design applications utilized by the staff will not be included, since they are
adequately covered in applicable technical manuals and handbooks currently
in common use.
Description of Hydrologic Modifications
Hydrologic modifications resulting in nonpoint source pollution are
activities of man that either directly or indirectly affect, or have affected,
the natural stream-flow and associated ground water regime detrimentally.
Pollutants are consequently added to the surface and ground waters from
-------
-2-
the diffuse runoff, or by seepage or percolation. The levels of many of
these pollutants are influenced by climatic events such as rainfall and the
seasonal temperature changes, in addition to the effects of soil types and
topography, destruction of stream biota, particularly wetlands, which impact
water quality, and operating practices. Reference to hydrologic modi-
fications as sources of nonpoint pollution should not be misconstrued as
eliminating them from consideration as point sources with respect to
certain aspects, which require control under the Sections 402 and 404
permit programs. (Public Law 92-500, with amendments).
Channel Modifications
Channel modifications are implemented primarily for flood control,
surface or in-channel erosion reduction or for surface and subsurface
drainage purposes. Such structural changes as dikes, levees, piers, docks,
bridges and road fills may require or result in channel modifications which
would not otherwise have occurred. There are seven different types of modi-
fications which are potential nonpoint sources of pollutants. They are:
1. Clearing of debris and snagging of blockages operations to restore
the former hydraulic capacity of a streambed. This is basically
a periodic maintenance operation. Generally, these operations
have the least nonpoint source polluting consequences.
2. Channel excavations which enlarge and reshape, an existing channel,
or which provide a new channel in its place. Heavy nonpoint source
pollution can result.
3. Channel realignment to eliminate meanders that have developed
in the natural streambed. Heavy nonpoint source pollution can
result.
4. Construction of floodways to relieve the streambed of excessive
flows of storm water. These are normally dry. If the floodway
has been stabilized properly, minimal nonpoint source damage can
result when flows subsequently enter the floodway.
5. Construction of retarding basins for the temporary storage of
excess flows of storm water. These could be either on-stream or
off-stream, which has the least nonpoint polluting potential during
construction.
6. Construction of debris retention basins to hold back debris during
periods of high water, which might otherwise result in extensive
downstream erosion and pollution. The degree of nonpoint source
pollution during basin construction is influenced by the amount of
site disturbance.
7. Construction of drainage ditches or deepening existing ditches.
In-channel vegetation of drains such as grassed waterways will
limit nonpoint source pollution.
-------
—3 —
Impoundments
Dams are constructed to impound surface waters for water supply,
flood control, fish and wildlife, hydropower, navigation, irrigation,
recreation, flow diversion, low flow augmentation and combinations
of some or all of these reasons. Their proper operation for the purposes
intended must be considered and incorporated into suitable best management,
practices, and the operators must be adequately trained. They are usually
assigned to one of the three following categories:
1. Run-of-the-river impoundments, which characteristically have
low heads and water detention times limited to a few days.
2. Storage reservoirs, which are usually located on tributaries, impound
water for seasonal, annual or longer periods have high heads, and
encompassing an extensive area outside the original channel.
3. Reservoir areas that are integral to constructed floodways, to
store high flows where topography is suitable. These would be
dry in normal conditions.
Various Construction Activities
All types of ground-disturbing construction activities result in modi-
fications to existing drainage flows, and if not given adequate design
consideration, such hydrologic changes may become sources of water
pollution. Construction nonpoint sources of pollution are the subject of
a separate guidance document, and will not be covered here in detail.
When a construction project includes hydrologic modifications which have
nonpoint pollution potential, those best management practices recommended
in that construction guidance document need to be implemented to prevent
those nonpoint problems.
Resource Recovery Operations
The resource recovery activity of primary importance is that of
the sand and gravel operation. However, mineral recovery operations
of any kind which will disturb the existing streambed must be considered,
as well as should oil and gas wells (exploratory and production), located
in bodies of water.
Withdrawal and Recharge Activities
Surface and ground water withdrawal and recharge activities may
produce undesirable effects such as reducing waste assimilative capacity,
damage to fisheries, saltwater encroachment, surface subsidance, induced
recharge, and mixing of water in aquifers of differing water quality.
Other Types of Activities
Concurrently prepared best management practices guidelines are
available for activities incorporating hydrologic modifications in agriculture,
silviculture and other categories, in addition to construction. However,
best management practices should be applied for all other activities involving
-------
-4-
hydrologic modifications, even if they are not specifically identified
by guidelines. As an example, dense population development, with
attendant drastic ground cover changes, will generate many pollution
problems if not properly provided for, even well beyond the project
location.
Identification of Pollutants
Seven general types of nonpoint source pollutants that result from
hydrologic modifications are:
1. Sediment- Sediments are one of the most prevalent nonpoint
source pollutants, occurring as a result of most types of hydrologic
modification activities to varying degrees. The degree of pollution
from sediments will vary with streamflow, snowmelt and rainfall runoff,
soil types, and bedload characteristics, and will be most intense during
the period when construction activities have removed vegetative cover,
until it can become re-estalished. Where the sediments settle, bottom
organisms can be smothered, and spawning beds can be destroyed. The
increased turbidity during the transport phase will interfere with light
penetration, hindering photosynthesis, and degrading recreational uses,
and lowering the quality of water supplies. Sediments are also carriers
of nutrients and pesticides which may have become adsorbed to their
surfaces.
2. Nutrients - Where hydrologic modifications located in agriculturally
intensive areas cause increased runoff rates and streamflow velocities,
the natural concentration level of nutrients may be increased. In urban
areas, similar circumstances will increase nutrient levels as a result
of fertilization of lawns and gardens, but the amount of increase will be
lower. Where the hydrologic modifications entail the degradation or
destruction of wetlands associated with surface streams, nutrient loads
may also increase significantly. Soil erosion also contributes to the
problem by carrying adsorbed nutrients well beyond the areas that would
normally be affected.
^' Pesticides - A similar pollution problem may be experienced with
respect to pesticides as was described for nutrients, unless integrated
pest management has been instituted. This term refers to control of
pests by best available control methods which protect the quantity and
quality of the crop while not causing unacceptable environmental pollution.
4. Herbicides and Rodenticides - Herbicides used to control vegetation
along streams and/or cropland will have serious nonpoint pollution conse-
quences unless properly utilized. Rodenticides to control burrowing
animals which will affect such structures as levees and wastewater lagoon
berms must also be properly utilized or nonpoint pollution will result. f
5. Thermal- This form of pollution may result from channel modi-
fications or impoundment construction. Not only is the temperature
change that might occur a problem by itself with respect to sensitive
aquatic life, but it can lead to serious changes in the dissolved oxygen
level in the water body. As an example of the type of problem that might
-------
be experienced in channel modification, if the normal tree cover is
removed, and the channel is widened to handle design flood flows, the
resulting shallow normal flow will be exposed to increased solar radiation,
with attendant temperature increases, and a reduced capacity for dissolved
oxygen. Impoundments that become stratified during the summer and
winter may become oxygen deficient, which can, in turn, cause low
dissolved oxygen problems downstream of the discharge. Flow diversions
may also have the effect of increasing the temperature of the remaining,
shallow flow, and a lowered dissolved oxygen level.
6. Chemicals- Hydrologic modifications such as dredging, with the
attendant necessity to suitably dispose of the spoil, may result in release
of pollutant chemicals from'the spoil through leaching or percolation.
The fines re-suspended in the streambed are another potential source
of pollution if adsorbed chemicals are released. Changes in pH and
dissolved oxygen levels that may occur in impoundments may cause release
into solution of certain types of chemicals previously insoluble. Modifi-
cations that lowered the ground water table sufficiently in coastal areas
could result in saltwater intrusion into a freshwater aquifer or into an
estuary, with attendant salinity degradation. Excessive upstream diversions
or withdrawals of freshwater from tidal estuaries will result in salinity
incursions further upstream than would otherwise occur. The problem of
dissolved gas super-saturation may be experienced at impoundment outlets,
and downstream if suitable preventive measures are not incorporated.
Chemical stabilization techniques applied for control of fugitive dust
and/or nonpoint source pollution will require coordination. Techniques
selected must be complementary, rather than conflicting, with the choice
of action selected being that which produces the best total end result,
with respect to control of both nonpoint source pollution and fugitive dust,
to the extent that both problems exist at a specific site.
7. Microorganisms- Modifications could result in pathogenic micro-
organisms entering the water from runoff or percolation and seepage.
Changes in the existing flow regime must consider the effect on potential
sources of such organisms. Changes in the chemical constituents of
impounded waters, or their level of concentration, may stimulate excessive
algal growth.
Considerations For Best Management Practices Selection
Best Management Practices for hydrologic modifications is the most
practical and effective measure, or combination of measures, which
will prevent or reduce the generation and/or transport of pollutants, upon
implementation, to a level compatible with water quality goals.
The BMP selected for a specific hydrologic modification will not
necessarily be the same in different areas of the country. Soil types, topo-
graphy, climate, existing condition, local zoning and land use regulations,
etc., must be considered in assessing the problem. The final determination
of which BMP alternatives to apply in any specific case must suit the site
conditions, and include appropriate public participation. BMP must be con-
sidered at the earliest stage practicable, and throughout the problem identi-
fication and analysis planning, design and construction phases.
-------
-6-
The principal emphasis should be placed on measures that will
prevent, or minimize nonpoint source pollutants which would be
generated by the specific hydrologic modification. For purposes of
nonpoint pollution prevention planning, alternatives which minimize need
for hydrologic modifications will best suit BMP goals. The planner
should be aware that having sufficient land available (through ownership
or regulation) to implement the best mix of out-of-channel structural
or non-structural alternatives is a controlling factor in BMP selection.
Non-structural alternatives may include agriculture practices such as
regrading of fields, non-till planting, or proper crop selection, to ease
surface drainage problems. Reliance on tile drains may require further
hydrologic modifications to allow gravity flow, requiring careful planning
for their installation to minimize this change. All preventive measures
must be fully integrated into the total management system for every
hydrologic modification. In brief, the changes introduced should produce
conditions similar to those existing in nature which past experience
has proved will effectively control the potential pollutants, and maintain
or improve the water quality, while avoiding changes which would be
detrimental.
As in other areas of nonpoint source pollution, erosion control
measures are an essential feature of most hydrologic modifications.
Controlling sediment-bearing runoff will reduce the amount of adsorbed
nutrients, pesticides and other chemicals that reach the nation's
waters. Designs for modification must recognize this problem and
provide suitable construction provisions as a part of the project.
(With respect to pesticides, integrated pest management must be given
suitable consideration). Subsequent operation and maintenance activites
must continue to apply best management practices to assure the continued
success of the pollution prevention measures.
The potential for thermal pollution problems must be assessed for
some types of hydrologic modifications, and suitable control and con-
struction measures must be applied to limit cover removal or replanting
after construction. The choice of type of modification may even be
determined by the need to control pollution of this type.
Prevention and Reduction Measures
The measures which can be applied to hydrologic modifications to
prevent or reduce pollutants from reaching surface or ground waters
may be vegetative, structural or institutional or a combination, in
addition to those mentioned for agriculture, silviculture, etc., in the
documents developed for pollutants related to those activities. Institut-
ional measures relating to land use should not be overlooked, but will
be more easily applied in non-urbanized locations. The variety of
structural and vegetative control measures will be discussed in detail
in applicable sections of this handbook. Unacceptable hydrologic modi-
fication work, from a nonpoint pollution source aspect, can result in
sheer sides to channels, little vegetation on channel banks or berms, and
destruction of valuable wetlands. Many other unacceptable modifications
could also be cited, but these are representative examples. The avoidance
of such results is the purpose of this BMP guidance.
-------
CHAPTER I
METHODOLOGY FOR ASSESSMENT OF EXISTING
PROBLEMS CAUSED BY HYDROLOGIC MODIFICATIONS
INTRODUCTION
It must be recognized that there are many locations within a designated
planning area with hydrologic modifications already in existence. These
modifications undertaken at some point in the past will have occasionally
re-established so as not to be noticeable. They must all be identified, and
the potential for generation and/or transport of nonpoint source pollution
from such modifications including their capacities and condition, must be
properly assessed. This activity should include the identification of antici-
pated pollutants. Some private and public projects constructed in previous
years may have been poorly engineered or constructed, or did not adequately
address reduction of soil loss, and protection of water quality based on
current values. Rehabilitation of such work may be necessary to achieve
BMP goals.
The final documents produced by the Section 208 Areawide Planning
Agencies will become an important information source for preparation
of any required Environmental Impact Statements for the area. Procedures
adopted with respect to analysis, and selection of nonpoint source pollution
controls, to prevent pollution from hydrologic modifications, must be
directed towards this end.
While this chapter relates specifically to existing problems, the
identification and evaluation effort would be similar when applied to planned
modifications necessary to bring the future area-wide plan to fruition, with
one major exception. The pollution contribution from existing modifications
can be evaluated on-site in most cases, while for future modifications it
-------
1-2-
must be estimated. Similar conditions at future modification sites would
produce pollution problems similar to those experienced at existing sites,
unless best management practices are instituted, so it is a valid approach
for planned modifications.
Hydrologic modifications, by their nature, affect the flow regime of
the area in which they are located. The level of nonpoint source pollution
produced by existing modifications which have been identified as problem
areas will consequently vary with the intensity and duration of precipitation
phenomena, and the surface characteristics encountered. Since the primary
control area is, therefore, dependent upon the surface and subsurface
characteristics (i.e., ground cover, soil types, topography and geology),
it is the logical place to focus Best Management Practices to control
nonpoint source pollution.
SCOPE
The identification and evaluation of all existing hydrologic modifications
is an extensive task. To assure the economic utilization of limited time
and resources, it will be necessary to limit the effort to the minimum re-
quired for an adequate evaluation. Hydrologic modifications which historically
have not been, and are not expected to be pollutant sources, need only the
limited investigation necessary to validate this fact, for the record. However,
when additional development is anticipated in the area that includes, for
example, stream channel modifications which will have an adverse impact on
existing hydrologic modifications, a more comprehensive evaluation is
necessary. As another example, extensive planned upland development
affecting the ground cover significantly would necessitate including an evalu-
ation of downstream hydrologic structures. This will assure that necessary
measures are taken upstream to prevent the downstream structures from
becoming potential sources of nonpoint pollution.
-------
1-3-
ADVANCE PREPARATION FOR SURVEY EFFORT
For comparative, ranking, and adequacy purposes, prior to identifying
and assessing existing modifications, a survey form should be developed.
It will be worth the initial effort to be certain that all the needed information
be obtained during the field survey trip. The format to be adopted may involve
a matrix-type of questionnaire, or just a series of questions to be answered
by the survey, or a combination of both, as determined to be most effective.
INFORMATION SOURCES
Many hydrologic modifications now in place will have been incorporated
in the course of area development, with the knowledge and approval of the
local, county, state or regional agencies having area jurisdiction. These
organizations will be valuable information sources. At the local municipal
and/or county level, the following appointed officials and/or boards should
be consulted, if considered appropriate sources of information:
Assessors Park Commissioners
Health Recreation Commissioners
Fire Board of Licenses
Police Housing Authority
Public Works Planning Board
Building Inspector Development, Industrial Commission
Constables Redevelopment Authority
Zoning Board of Appeals Building Code Commission
City Forester Conservation Commission
Personnel Board School Building Commission
Historical Commission Traffic Study Commission
Board of Ethics Municipal Utilities Authority
City Solicitor Department of Community Affairs
Soil and Water Conservation Districts
-------
I -4-
Elected officials at the municipal and county level include the mayor,
clerk, treasurer, collector, councilmen/selectmen, county executive,
soil conservation district officers and school committee.
State agencies and departments from which information should be sought,
as appropriate, include the water supply/water pollution control divisions,
conservation, public health, public safety, public works/engineering, industrial/
economic development, agriculture, environmental affairs, natural resources,
program planning and coordination, planning boards, State and local Universities,
and State senators and representatives.
At the regional level, regional commissions, river basin commissions,
governors' conferences, and interstate commissions should be given the
opportunity for input. The state, regional, and local clearinghouses established
by Office of Management and Budget Circular A-95 should be consulted
for possible help in identifying appropriate contacts in the other agencies,
and to assure that none are overlooked.
Federal agencies that should be consulted, as appropriate, include
the Departments of Interior, Agriculture, Commerce, and Transportation,
the Federal Power Commission, Appalachian Regional Commission, Energy
Research and Development Administration, the Tennessee Valley Authority,
the Water Resources Council, the Council on Environmental Quality and
the Corps of Engineers. In some agencies, more than one bureau or
office will have an interest in a specific project involving hydrologic
modifications, and none should be overlooked.
-------
1-5-
EVALUATION AIDS
In many locations, the evaluation effort should draw on many sources
for pertinent data and other information. While these sources will differ
in various parts of the country, they can include the following:
Geologic, hydrologic and topographic maps.
Land use, zoning and planning maps.
Studies and reports developed for the area, or similar areas and situations.
Interviews with long-time area residents.
On-site inspections.
Newspaper records.
Local industry, farm groups, contractors, etc.
Water treatment facilities records.
Established national level data bases (i. e. WATSTORE and STORET).
Insitu sampling and analysis.
Soil surveys.
QN-SITE SURVEY AND ASSESSMENT
With the use of area topographic and/or geologic maps, of the type
prepared by the Geological Survey, U. S. Department of the Interior,
Army Map Service, and others, and SCS aerial photographs and landsat
photographs, on-site inspections of all existing hydrologic modifications
should be conducted. Use of the previously discussed survey form will
produce a uniform documentation of all data collected. Locations checked
in the field survey should include all types of stream crossings and channel
modifications, water impoundments, construction activities, and dense
population centers, where drainage patterns or runoff velocities may have
been modified. Published geological information on the sites should be
supplemented by field evaluation of exposed material at road cuts, along
water courses and in river beds.
-------
1-6-
Evaluating the existing hydrologic picture in the planning area
with respect to both surface and ground waters is essential in the survey.
Existing hydrologic modification activities which contributed to, or are
potential contributors to, nonpoint source pollution, require identification.
The relationship of nonpoint source pollutant constituents and their
concentrations to the current, or base line water quality, and established
water quality goals should be determined. This requires an awareness
of the different types of nonpoint source pollution which may result if
not provided for in the design and construction of any hydrologic modification.
Interviews with long-time residents will be extremely useful in
determining apparent effects that the surficial development modifications
have produced, when evaluated in conjunction with U. S. Weather Bureau
data and old newspaper accounts. Studies and reports of modifications com-
pleted in the past, when correlated with the development directions now being
taken and the results experienced, will be valuable in determining cause and
effect relationships of present pollution problems. This evaluation should
identify environmentally sensitive areas such as wet lands, steep slope areas,
highly erodable soils and scenic watercourse reaches, as evidenced by the
results of existing hydrologic modification projects, and such public surveys.
NONPOINT SOURCE POLLUTANTS IDENTIFICATION
SEDIMENT
The most visually evident result of nonpoint source pollution from
existing hydrologic modifications is generally soil erosion, which causes
increased sediment loads to be transported and deposited in the receiving
watercourses. Since hydrologic modifications generally must be accomplished
in locations directly involving flowing water, climatic effects like concentrated
rainfall and rapid runoff merely intensify the degree and increase the areal
-------
1-7-
extent of erosion of disturbed soils. Sediments, which includes solid mineral
and organic materials, are transported downstream. Chemical and/or
biological pollutants often are present in the sediments.
The concentration of any specific pollutant already present in the
receiving waters may be at or above the maximum level allowed by the
water quality standards. If testing and analysis of soil and water samples
representative of conditions at the site of the project indicate the presence
of additional amounts of pollutants, all efforts should be directed towards
preventing their runoff. Selection of the modification alternative(s), and
procedures incorporated during actual construction, must emphasize
the best management practices available both to minimize and then to
maintain control of those pollutants generated. Only in this manner will
the project comply with the non-degradation and water quality standards
requirements established by the States.
In addition to the initial erosion damage, sediment resulting from
the erosion at the project site, will exert a detrimental influence on the
hydrologic regime of the water body into which it is released. While
in suspension it blocks the sunlight penetration required for photo synthetic
activity. When it reaches locations or conditions which lower the flow
velocity sufficiently, sediment will become deposited on the bars and/or
along the bottom of the water body. This deposition covers and destroys
benthic organisms, interrupts the food chain, modifies the ecology, obstructs
navigation channels and harbors, and will, over a period of time, reduce
reservoir storage capacity and stream carrying capacity, thus contributing
to flooding. Eventually, silting of streambeds and impoundments may
necessitate additional costly excavation to re-establish channel and im-
poundment capacities. Wise land use practices and properly planned
hydrologic modifications can manage or avoid this eventuality.
-------
1-8-
Sediment released by erosive action at a project site .may also carry
quantities of adsorbed chemicals and/or nutrients and pesticides into the
water in toxic quantities, or cause release of nutrients in sufficient quantities
to stimulate undesirable aquatic growths which are possible secondary pollutant
effects of sediments. Types of adsorbed pollutants and their concentrations
will vary considerably across the country, but the degree of variance
within any designated planning area will primarily reflect the land and its
uses within the drainage area.
Climatic conditions in some regions of the country may necessitate
the application of stabilization chemicals for control of fugitive dust, for
air pollution control. Therefore, in addition to the pesticide, insecticide,
herbicide and rodenticide type chemicals, and undesirable heavy metals
which may be present in the soil, surface stabilization chemicals need to
be identified and their pollutant potential evaluated in locations where their
application is known or suspected. Some of the factors to be evaluated in
pollution surveys include the topographic, geologic and soil characteristics
of the area; land usage; and recorded accounts of past evidence of pollution,
such as effects on indicator organisms (for example, fish kills). Observations
of the water bodies during and after high runoff periods at several locations
along their length often disclose suspected sources of high sediment loads,
which require corrective action through the implementation of Best Management
Practices.
NUTRIENTS
Nutrients of primary concern are nitrogen and phosphorous, and
they will be found in much higher concentrations in agriculture-intensive
-------
1-9-
areas than elsewhere, normally. This is not meant to imply that they
won't be found in excessive amounts elsewhere; homeowners may apply
fertilizers in extra heavy amounts to their lawns and gardens, inadvertently.
Also, nitrates of geologic origin may be carried into water courses by spring
flow and along with erosion-produced sediments. Their existence or potential
should be determined, and evaluated.
BIOLOGIC POLLUTANTS
Biologic pollutants may exist in project locations prior to construction
such as impoundments, channel relocations or high flow retention basins or
supplemental channels, as an example. Their presence as bacteria, fungi
and/or viruses may be the result of prior utilization of the area as, for
example, a sanitary land fill. Contamination may be the result of leacheates
from adjacent areas polluting the groundwater which subsequently re-entered
the surface water. Unless the history of the area is sufficiently well known
to assure the absense of such pollutants, suitable testing is necessary to
validate any conclusions concerning their presence.
THERMAL POLLUTION
Thermal pollution resulting from hydrologic modifications will have
adverse effects on the aquatic biota in different ways. In the case of channel
modifications, a broad shallow flow replacing a deep narrow channel, with
the former tree cover removed, will raise the temperature level of the
flowing water. Temperature sensitive organisms will either succumb or
migrate. The change in temperature may become an effective migration
barrier if it is sufficiently extensive, or the consequent reduced dissolved
oxygen level may become the growth limiting factor. Temperatures produced
-------
1-10
may also interfere with life cycle phases of migrating fish, which are
triggered by water temperatures.
CHEMICAL
In addition to the problems of chemical pesticides entering the surfa
and ground waters from nonpoint sources, attention must be directed towa
other chemical pollutants. Coastal areas are susceptible to saltwater
intrusion from excessive ground water withdrawal. Impoundments frequent
stratify and unless multiple outlets for withdrawal from selected depths, or
aeration procedures, are available, dissolved oxygen deficiency in the
reservoir depths or in the discharge water downstream will present
unacceptable conditions for the normal aquatic biota. Ferric and manganic
precipitates present may be reduced under the anaerobic conditions to the
ferrous and manganous states, adding detrimentally to the level of their
concentrations already in solution. Nitrogen super-saturation may develop
downstream of the spillway or outlets of some impoundments, producing
nitrogen embolism in the fishery population. Improper regulation of the
discharge, whether by actual operation or as a result of institutional require-
ments, may result in reduced flows causing increased salinity concentrations,
as high salinity ground water percolates into the stream.
ASSESSMENT OF POLLUTION FROM EXISTING HYDRO-LOGIC MQDIFICATIO.
For sampling, testing and analysis to be acceptable, qualified personnel
and laboratories, familiar with standard methods and procedures should be
utilized. Assessment of sediment problems resulting from erosion at the
location of existing hydrologic modifications may require obtaining new
cross-sections and profiles in areas of obvious erosion and subsequent
sediment deposition. Comparison with the as-built project plans will give
an indication of the magnitude of this problem. Evaluation of the number?
-------
1-11
and variety of aquatic biota both above and downstream, from the project
may reflect the effect of the pollution on their environment. Analysis
of soil and sediment samples will permit determination of the types of
chemical and biological pollutants that may be present, and their concen-
trations. Analysis of water samples taken from above, in the vicinity of,
and below the modification location will provide information on the pollutant
contribution from adsorbed chemicals, bacteria and viruses which are
released into the water by the sediment. Tests to determine the presence
of and identify pesticides, herbicides, rodenticides and fertilizers should
be conducted. The presence of algal blooms during certain times of the
year in the waters in the vicinity of the project is indicative of the probable
presence of excess nutrients, where the phenomenon has become evident
since construction of the modification.
Modification of temperature and dissolved oxygen levels resulting
from hydrologic modifications can be ascertained by testing. To ascertain
the extent of any problem, it will be necessary to sample cross-sections
above, in the vicinity of, and below the project in question. Timing of
the sampling should be related to the life cycle phases of migrating aquatic
organisms to determine if barriers of temperature and oxygen levels will
interfere with their migration.
Evaluation of pollutants which become re-suspended in the water
as a result of sediment inflow should include consideration of the synergistic
effects of combinations of pollutants. These effects may be significant,
while the effects of the pollutants, taken individually, might appear to be
inconsequential.
In many areas, hydrologic modifications in the form of highway stream
crossings, and channel modifications have been inadequately designed for
flood protection. This has become a serious problem in areas where the
-------
1-12-
watershed was rural when the project was designed and built, but now is
rapidly urbanizing. The changed ground cover and topography resulting
from the development has modified drainage patterns and overland flow rates
and percolation capabilities radically from the criteria on which the designs
were originally based. Erosion, including complete washouts, increasing
the sediment load in the surface waters, along with all the attendant pollution
problems discussed above, are the symptoms of the problems which now
exist. Corrective measures to be undertaken should incorporate the appli-
cable Best Management Practices.
Polluting effects of dredging operations conducted to modify channels
may be determined through a sampling and analysis program similar to
that described previously. Once identification is completed, it is essential
that the contributing cause or causes for release of the pollutants be determined.
This will permit establishing alternative measures of accomplishing the
same channel modification effect, while minimizing or eliminating release
of the pollutants. Care must be taken to assure that the cure proposed
does not produce pollutants of a different type, and possibly do more damage
than the original project. Spoil disposal provisions need to be evaluated
to be certain that adequate controls are in effect to prevent any pollutants
determined to be present from reaching the surface or ground water.
With respect to resource recovery operations, primarily within the stream-
bed itself (although not limited to this location, only), consideration must be
given to preventing adverse downstream effects. These operations include:
1. Dredging
2. Drag line and clamshell excavation
3. Power shovel excavation
4. Bulldozer and scraper excavation
-------
1-13-
Concentrations of pollutants of any kind may have accumulated by adsorbing
to particulate matter. Their downstream release during the recovery process
would degrade the water quality unacceptably. To the extent feasible, water-
courses should be re-routed away from the resource recovery site during
the period of operations. Activities relating to dredging, specifically,
must be conducted in compliance with the Corps of Engineers regulations,
and Environmental Protection Agency guidelines, copies of which are
included in the Appendix for convenience.
MONITORING
Where in-stream monitoring has been in progress, information obtained
from this system should be used wherever applicable. Industries located
along watercourses which utilize process water would be logical sources
of information concerning the types and levels of pollutants that have been
detected (to the extent of testing done). Water supply treatment facilities
are also valuable information sources not to be overlooked. The locations
of such industries and water supply facilities with respect to existing identified
hydrologic modifications may throw light on pollution impact of such modifi-
cations. Space satellites also have identified the presence of pollutants in
some areas of the country, and this possible source should be investigated.
Initiation of a new in-depth monitoring program should not be considered
for the purpose of completing the assessment of existing conditions. Such an
effort is long-term in nature, and would not supply ready data within the
short time-frame available. With respect to modeling, unless there is a
large supply of usable data readily available, and a suitable model, this too
should be relegated for use on a long-term basis, due to the time constraints
imposed.
-------
CHAPTER II
PROCEDURES FOR ANALYSIS AND SELECTION OF
CONTROLS FOR HYDROLOGIC MODIFICATIONS
INTRODUCTION
Hydrologic modifications, whether of a topography altering or ground-
cover altering type, or having other specific modifying aspects of the
surface and ground, have an effect on the movement of water. This
effect may be deliberate or may be the unintentional net result of the
total activity involved, or may fall somewhere between these two extremes.
The concentration level of pollutants generated from nonpoint sources
will be related to the amount of precipitation within the watershed, the
soil conditions and ground cover in the area of precipitation, and the
runoff rate as affected by man's activities. Section 208 area-wide plan
development must include considering the conditions existing both out-of-
channel and in-channel before any modifications are made, the effects
during construction, and subsequent to construction completion.
DATA NEEDS FOR ANALYSIS, AND DEVELOPMENT OF BMP
Erosion derived sediments, resulting from and transported by rainfall
or snowmelt runoff, will be affected directly by localized climatic events
such as intense, short duration storms, and unseasonal temperature in-
creases causing rapid snowmelt. Development of Best Management
Practices must consider these factors in locations where pollutants are
generated from this source. In addition to local climatic data, the rate,
velocity and quality of runoff, susceptibility of the soil to erosion, chemical
and physical properties of soils affected, including geologic data and
typical drainage data, such as slope, surface cover, overland distances
-------
II-2-
to feeder branches, etc. are essential. Any other characteristics,
which may be unique to the specific area, should also receive con-
sideration in the analysis.
PRECIPITATION DATA
Several sources of precipitation data are available. The National
Weather Service, Department of Commerce, reports daily rainfall
in monthly issues of "Climatological Data". Hourly data is also available.
Analyses of the rainfall data have also been published. Another useful
publication is "Rainfall Frequency Atlas of the U. S., TP 40, U. S. Weather
Bureau. Special storm reports and research papers of other Federal
and State agencies, and universities, published irregularly, may be
useful.
There are publications such as "National Engineering Handbook,
Section 4, Hydrology", by the Soil Conservation Service, and "Design
of Small Dams", by the Bureau of Reclamation, which provide essential
information for estimating the amount of rainfall to be expected in
the area, the duration of storms, and antecedant conditions in the
drainage area, as well as other factors, in analyzing the available
data. The U. S. Army Corps of Engineers Hydrologic Engineering
Center has developed a STORM model to account for differences in
sediment generation under rainfall induced runoff and snowmelt runoff.
WIND DATA
Because fugitive dust control measures must be integrated into the
total pollution control effort in areas where they are utilized, wind data
are needed. Reference should be made to U. S. Department of Agriculture
Handbook No. 346, "Wind Erosion Forces in the United States and Their
-------
IFS-
Use in Predicting Soil Loss". This text includes wind erosion capacity
data, prevailing wind directions, and the prevailing directions of the
preponderance of wind erosion forces.
SOILS AND GEOLOGY
An understanding of geologic characteristics is necessary, because
construction of hydrologic modifications will disturb the surface and
subsurface soils during the period of construction activity. Also, im-
poundments will change ground water levels, which result in soil changes
over a period of time. For example, recognizing the environmental
sensitivity of soils within the planning area is essential to project site
selection. Information concerning the physical characteristics
of the surface and subsurface materials can be found in soil survey
reports published by the Soil Conservation Service, U. S. Department
of Agriculture, geologic reports provided by public agencies at all levels
of government, and data from local universities. This information was
probably obtained for objectives other than pollution control, and suitable
caution must be exercised in its application.
Geologic characteristics which must be considered in the development
of Best Management Practices include the density, permeability, degree
of consolidation, composition and thickness of the various materials,
and depth to ground water or subsurface aquifers, and the quality and
direction of movement of that water. These inter-related characteristics
affect the generation and movement of pollutants from the project site.
In many situations, where the nonpoint source pollution problem
evaluation is related to existing hydrologic modifications, subsurface
investigations were made for development of the project design and
-------
II-4-
may be obtained from either the client or the engineering firm engaged
for the project. Similar information for comparable facilities in the
general area of the project site, may be available. Where no such
records are available, it may be necessary to take samples and analyse
them. These samples must be representative of conditions at the project
site and extend to the maximum depths of the modification. If material
is to be brought into a specific project site, construction requirements
must assure that it will be free of pollutants that could subsequently be
released to the environment, and have physical characteristics suitable
for its intended use.
TOPOGRAPHY
Many hydrologic modifications, such as impoundments and stream
channelizations, involve major topographic changes, which affect the
existing flow regime. Existing conditions may be determined from
field inspections and surveys, in conjunction with information shown
on Geological Survey topographic maps, the U. S. Department of Agri-
culture soil maps, and the Army Map Service, Corps of Engineers,
maps. Important information will include the length and slope of the
terrain, as well as established drainage patterns, ground cover and
roughness. Certain locations may require obtaining detailed topographic
data, on a site-specific basis.
RUNOFF DETERMINATIONS
When the hydrologic modification is implemented in dry conditions,
as a result, for example, of stream flow diversion into part of the channel
width the area exposed at any time to rainfall and runoff must be kept
to a minimum and revegetated as soon as possible. The amount of
-------
II-5-
pre cipitation falling on such exposed areas that will initiate runoff and
erosion is related to the character of the exposed materials, topography,
rainfall intensity, and elapsed time since the last rainfall. The Soil
Conservation Service's "National Engineering Handbook, Section 4,
Hydrology" provides a procedure for estimating runoff through the use
of Watershed Curve Numbers. The curve numbers have been developed
to indicate amount of direct runoff that a storm will produce as a conse-
quence of the soil type and hydrologic conditions of the area.
PROCEDURES FOR SELECTING AND IMPLEMENTING BMP
Application of Best Management Practices should receive initial
consideration during project planning phases. In the case of existing
hydrologic modifications with nonpoint source pollution problems, the
actual project needed in the Section 208 plan consists of the corrective
measures required to solve the nonpoint pollution problem. An adequate
area-wide plan must include the best of all the Best Management Practices
alternatives, whether structural or nonstructural, available for c&crection
of each nonpoint source of pollution. This approach recognizes that
it is always more desirable, and usually less expensive, to prevent
nonpoint source pollution, than having to correct it by subsequent effort.
Since no discharge of nonpoint pollutants is the BMP goal, non-structural
measures, such as flood plain zoning, or out-of-channel structural measures
such as floodways, should receive preferential selection over in-channel
modifications. Planners should include streamside easements adjacent to
channel modifications to protect the channels and adjacent wetlands,
especially where public funds are involved in the modifications.
Contract documents must include specific control measures needed,
scheduling and coordination of activities and use of permanent versus
temporary techniques. Whenever the hydrologic modifications may include
-------
II-6-
structures with controls, provision for suitable operating instructions,
and training of the operators in acceptable operation and maintenance
programs, must be required.
When the problem evaluation results in a determination that non-
structural measures will prove most effective and institutional changes
are needed, it will be necessary to develop a suitable plan of action to
accomplish the changes. The local community must be educated about
those needs and their desirability. The technical staff should plan to
provide the inputs for necessary legislative and regulatory changes.
Any specific requirements which land owners, developers, and con-
tractors must comply with must include enforcement means and
measures, to be effective.
ADEQUATE PLANNING
The area-wide plan, to be adequate, must include a survey of existing
hydrologic modifications which contribute to nonpoint source pollution
of the surface and ground waters. In addition, hydrologic modifications
planned as part of future development projects in the area will require
incorporation of Best Management Practices to prevent pollution. This
could be as simple a measure as eliminating environmentally sensitive
areas from hydrologic modification siting Considerations, to the more
complex problems of establishing significantly large areas of land for
use in carrying excess runoff flows at acceptable velocities as part of
a specific channel alteration project, or a ground cover alteration project
which would affect the runoff rates and velocities significantly, or a com-
bination of these. Limitations on resources available, and their best
utilization, has been discussed in Chapter 1.
Since many hydrologic modifications involve existing water courses,
potential pollution during the actual construction period can be minimized
-------
II-7-
by scheduling activities to coincide with low flow during limited rainfall
periods, unless increased pollutant concentration levels within the stream
cannot be prevented by suitable measures. In some projects a temporary
settling basin downstream of construction activities, through which flow
may be diverted during the construction period, may also be necessary
to trap sediment. Keeping soil area exposure to a minimum during
construction activities will also reduce pollution caused by erosion.
Control measures must be properly maintained for the length of time
they must be effective, and their subsequent removal in an acceptable
manner needs to be specified.
Replacing large areas of permeable cover by the process of urbani-
zation with impermeable building roofs, paved roads and walks, and paved
parking lots is the standard practice. Where precipitation was previously
slowed naturally by infiltration losses in tracing its path to the drainage
system through surface runoff, or percolation into the ground water,
these impermeable surfaces and storm drain interceptors decrease
the time for runoff to enter the local streams. The collected rainfall
thus quickly carried by gutters and storm sewers to the surface drainage
network stresses a formerly adequate system beyond its capabilities with
the increased runoff volumes and velocities imposed in a given time period,
generating nonpoint source pollution. The total plan for urbanization
must acknowledge the problem, and prevent the nonpoint source pollution
that would otherwise occur, by application of Best Management Practices.
Passing the problem on to the impacted downstream inhabitants is no
longer an acceptable solution for the project site.
Diversion of water out of the watershed, which reduces the flow within
the watershed, will cause different effects at different locations within
both watersheds, and any adverse effects must be identified. Adverse
-------
II-8-
effects could be increased salinity as a result of leached salts from agri-
culture irrigation flows through the ground water, or upstream encroachment
of salt water in tidal estuaries due to reduced flows , for example.
In some locations reduced stream flow could result in percolation
of polluted ground water into the streams due to the lowered stream
gradient. Also, reduced water depth may result in water temperature
increases, algal growth stimulation, and decreases in the dissolved
oxygen level. Where remedial Best Management Practices are
necessary to prevent nonpoint source pollution, they must be provided.
Impoundments may be used to store excess runoff for release during
periods of low flow during the year. This measure may be necessary to
compensate for diversion losses. Water stored must achieve an accept-
able level of water quality, both within the impoundment and downstream.
Best Management Practices with respect to design, construction and
operation of the dam and impoundment and related effects on water
quality and downstreams uses must be included or the cure for the low
flow nonpoint pollution source could become the cause of other pollution
problems, such as algal blooms, gas super-saturation, dissolved oxygen
depletion, temperature changes, etc.
Stream channelization and wetland drainage projects, because of their
far-ranging effects, will require detailed and close evaluation on a case-
by-case basis, unless they are very minor in scope. (Refer to Appendix C,
for the EPA policy statement concerning wetlands protection and EPA/Corps
of Engineers Section 404 permit program). It will have to be demonstrated
that such projects, utilizing Best Management Practices, can be accomplish-
ed with little or no damage to the total area ecology, and the alternative
of protecting existing conditions without change must be considered. The
acknowledgement of the extreme importance of remaining wetlands as
-------
II-9-
essential nurseries for nature's use has accentuated the need for their
retention in most situations, and made justification of their drainage
for other uses less likely. Such requirements will be reflected in develop-
ment of the data supporting projects of these types, and the analyses
that identified these measures as preferrable to available alternatives.
The setting for a hydrologic project (which may vary from urban
to rural), and whether it is located on public or private land, will
influence the selection of possible alternative hydrologic modifications,
and associated best management practices. The means of their imple-
mentation as the areawide development proceeds will also be influenced
by the circumstance of ownership. The differing approaches that must
be considered to accomodate these ownership differences need to be
finalized during the planning stage, and included in the areawide plan.
Such approaches must include educational efforts to sensitize owners to
the need for protection of watercourse and wetland values and may include
regulatory approaches to achieve selection of BMP.
CONTROLLING EROSION AND SEDIMENT TRANSPORT
Effective and economic control of runoff erosion and sediment
transport is possible by application of suitable procedures, individually
or in combination. Examples are:
1. Limiting the areal extent and exposure time when bare ground
is most susceptible to erosion by surface water runoff. Coupled with
this in some locations is limiting construction to periods during the
year when minimum precipitation is normal.
2. Diverting runoff water around the exposed surface area to greatly
reduce the amount of runoff crossing the erosion-vulnerable ground.
3. Utilizing sediment basins to reduce runoff velocity and trap
the suspended sediments.
-------
11-10-
4. Providing a design that will prevent outflow velocities great
enough to cause erosion downstream.
5. Including debris retention devices to prevent clogging of stream -
beds at bridges and culverts, thus assuring that the flow will be retained
within the banks, avoiding more erosion-susceptible areas outside the
streambed.
6. Slope banks to facilitate revegetation and retard erosion, or
hold rip-rapping.
7. Follow the natural channel contours, especially in steeply
sloping topography.
8. Seeding banks and revegetating in natural trees and shrubs for
erosion and thermal protection.
9. Shape spoil and berms to facilitate revegetation and prevent
erosion.
10. Grassed waterways and sediment traps to protect water quality.
11. Minimum widening of channel to prevent thermal pollution.
12. Easements to protect channels and wetlands.
CONTROLLING POLLUTANTS OTHER THAN SEDIMENTS
Sediment controls enumerated above will also effectively control
transport of adsorbed pollutants, such as pesticides, herbicides, nutrients,
pathogenic microorganisms and other organic and inorganic pollutants.
Dissolved pollutants, however, which represent a threat to ground water,
will not be removed by those measures, nor will un-adsorbed micro-
organisms. A different approach must be used. Optimum application
rates of pesticides, fertilizers, and herbicides, as well as timing con-
siderations become important, along with suitable disposal of wastes
associated with their application. The incorporation of integrated pest
-------
11-11-
management practices, as described in Chapter I, will minimize
pollution. To control vegetation along channels, boom mowing is pre-
ferrable to herbicide spraying.
MANAGEMENT OF INCREASED STORMWATER RUNOFF
The existing drainage network within and downstream of a project
site has been developed naturally over a period of time, to handle the
storm flows experienced. Any project which increases peak flows
will cause an increase in the channel carrying capacity through erosion
unless Best Management Practices are applied. Stormwater management
regulates the release of this runoff by various means. Flow may be
retarded by the use of storage facilities, or the volume of surface
flow may be reduced by improving the infiltration capacity of soils by,
for example, contour benching the slopes. Modifying the new drainage
patterns to lengthen flow distances will increase the time of travel
of the runoff, reducing its velocity, and sediment-transporting capability.
Another practice is to leave suitably vegetated strips of adequate width
within the project site to intercept the overland runoff and trap much
of the erosion-produced sediment and debris. Facilities for stormwater
management should be designed with an operating life equal to that
of the hydrologic modification project.
In some locations where water is impounded, it may be necessary to
design the spillway to discharge the overflow horizontally across the
downstream surface to prevent dissolved gas supersaturation. Operation
and maintenance schedules of such structures should include Best
Management Practices to minimize detrimental water quality effects
within and downstream of the impoundment.
-------
11-12-
MAINTENANCE PRACTICES
In the on-going maintenance program for BMP measures such
guidelines should be followed as minimal herbicide use along channels
where vegetation must be controlled, regular inspection of water-
courses, and selective removal of debris and blockages, and repair
of damage to banks that may be resulting from erosion.
-------
CHAPTER HI
SELECTED PRACTICES
FOR
HYDROLOGIC MODIFICATIONS CONTROLS
INTRODUCTION
The survey and evaluation will have identified those existing hydrologic
modifications producing nonpoint source pollution. Planning for the future
development and growth of the area will identify locations where hydrologic
modifications will be needed. Both corrective efforts for existing problems
and future planned hydrologic modifications will include many possible
types of projects. The following includes selected practices to accomplish
hydrologic modifications while maintaining adequate control to prevent
nonpoint source pollution or reduce it to acceptable levels.
GENERAL
For practices described which require construction in and adjacent
to surface water drainage networks, it is important to devise work schedules
which will minimize exposure of unprotected soil to the erosive effects of
precipitation and runoff. The effects of such activities will be minimized
if they can be conducted during no-flow periods, in the case of intermittent
streams, and during times when precipitation intensity in the project area
has historically been at a minimum. Detrimental effects can be further
reduced by scheduling activities to expose only relatively small areas
of disturbed surface at a time, and re-vegetating or otherwise stabilizing
them as quickly as practicable. The type of hydrologic modification
determined to be most suitable, as well as its location, must include con-
sideration of its potential impact on downstream raw water supply intakes
and treatment works, and the treated water produced.
-------
Ill -2-
Existing projects in many locations will show evidence of erosion to
some degree. Where erosion is serious, interim corrective measures
may be required while the causes and alternative steps, incorporating
Best Management Practices, that will provide a permanent solution, are
being determined. The type of interim measure will be site specific, and
could be strip sodding on replacement fill, sandbagging, or dumped rock
riprap, provided it will suitably protect the project from complete failure
and temporarily minimize the erosion problem. Re -vegetation with, or
without, the use of mulches (sprayed on or hand-placed) and commercially
available degradable protective matting are other suitable alternatives
for protecting ground surfaces. Channel lining with an impervious sheeting
to above the high water line might be considered in certain locations,
but its resultant effect coexisting bottom organisms must be considered.
In locations where erosion is ocurring on bank cuts as a result of
intermittent surface runoff, diversion berms and slope drains may be
used to intercept the flow of water and redirect it for removal at a
decreased velocity. This will prevent further erosion if coupled with
appropriate re-seeding measures. Small check dams, or sediment
basins may also be necessary to detain the water and trap the sediment
load. They will add to the required maintenance effort. Some locations
and situations may best be improved and controlled by use of gabions to
prevent erosion and the attendant sediment pollution.
Pollution effects from erosion and sediment transport are greatest
during periods of, and immediately following, intense storms, while most
established water quality standards must be met during minimum flow
conditions. This does not mean that it is unnecessary to prevent the
pollution effects of storm generated erosion even though the resultant
-------
Ill -3-
diluting effect of the increased flow may keep the levels of pollutants
within acceptable water quality limits.
Many types of hydrologic modifications require dredging during their
implementation or during their operation. K dredged material is to be
discharged in waters of the United States, it will be necessary to comply
with requirements outlined in Appendix A and Appendix B, including
testing of the material that is dredged and deposited in spoil areas.
To avoid repetition, this requirement will not be repeated in discussing
each of the applicable hydrologic modifications.
Best Management Practices developed for application in nonpoint
source pollution control of dredge and fill operations need to comply with
the following Section 404 guideline objectives;
1. Avoid significant disruption of chemical, physical and biological
integrity of the aquatic ecosystem.
2. Avoid significant disruption of the food chain.
3. Avoid inhibiting movement of fauna.
4. Avoid destroying wetland areas of significance.
5. Recognize that essential floodplain areas may be destroyed
or isolated.
6. Minimize adverse turbidity levels.
7. Minimize degradation of aesthetic, recreational and economic
values.
8. Avoid degradation of water quality.
CHANNEL MODIFICATIONS
General. The importance of the surface waterways as aquatic'habitats
and nurseries necessitates preservation of suitable conditions for such purposes,
or their re-establishment, as necessary. Channel modifications frequently
have major adverse environmental consequences, regardless of the type selected.
-------
Ill-4-
Their selection as a suitable hydrologic alteration should be kept to a
minimum, and even then to be acceptable, their design and implementa-
tion must minimize or mitigate damage to the aquatic habitat.
Clearing and Snagging. This operation is primarily for the purpose
of re-establishing the original hydraulic capacity and gradient of a channel.
The effort is directed toward removal of obstructions from the channel
which impede flow directly, increase hydraulic friction, produce turbulent
flow conditions, or upon which debris carried by the flowing water will
accumulate. Mechanical equipment used in such operations should be of
such types and used in such ways as to minimize disturbance of the channel
bed. In most situations, rubber tired equipment, with winch and cable will
be preferrable to tread-laying equipment. Tree cover which is not an
obstruction should be left in place, and should not be removed indiscrimi-
•j
nately just to make the activity easier. Use of hand labor within the
channel should be stressed. Debris removed must be properly disposed
of out of the entire flood plain, so it can not become a future obstruction
in the event of flooding.
Channel Enlargements and New Channels. Channel enlargements may
be proposed for any locale, from rural to urban, while new channels will be
proposed most often for future rural land use modification, by the practices
of land drainage and irrigation. Channel enlargements should receive
consideration for locations where experience, or expectations of planned
development, demonstrate a definite need for increased hydraulic capacity
of a drainage network. For example, the type and permeability of ground
cover and topographic changes which are the result of urban development
or surface mining activities shorten the time for precipitation to reach
the streams, producing a higher peak flow than can be contained within the
stream banks during intense storms.
-------
ni-s-
In designing channel enlargements, consideration must be given to
the possibility of maintaining a minimum depth of flow, and shade cover
equivalent to that already in existance, for the purpose of maintaining the
existing temperature levels. This can be accomplished by enlarging the
channel at an elevation higher than the low flow water level surface
elevation, leaving the original channel elevation and width untouched below
that level. Easements or land purchase should be utilized to achieve BMP.
In locations with limited room to enlarge the channel, it may be necessary
to use vertical walls in place of sloping banks. However this measure
should be kept to a minimum, and riprap construction using appropriately-
sized rock would be more desirable than concrete, from a biological
aspect, as well as aesthetically. This type of wall construction will also
be sufficiently permeable to allow maintenance of the existing ground
water level if the hydraulic gradient is maintained. An impermeable
structure is less desirable in most situations, unless there is a need to
limit such ground water movement, to prevent pollution of either the
stream or the ground water, or prevent lowering of the ground water table.
Obviously, selection of the best method for enlarging a channel must
be determined on a case-by-case basis, and no specific method will be
suitable for all situations. This discussion has, therefore, been limited
to pointing out specific situations which will require consideration. (Figure 1).
Dredging may also be considered in enlarging the capacity of an
existing channel. An inherent problem with this procedure is the require-
ment that the starting and ending points of the project match the existing
streambed elevation. Where adequate land is available, and the downstream
end of the project provides a sufficient capacity to pass all water safely
downstream, within the existing stream banks, construction of a series
-------
One-Sided Construction Showing Vegetation To Be Established
And The Use Of Existing Woody Vegetation For Erosion Control,
Wildlife And Beautification.
Grass Legume Mixture for Wildlife
Existing Woods And Vegetation
01
Undisturbed Area
from "i\.-cn. Release
Soil Coiiservdtioii Service,
Jo.
VJ71)
Figure 1 One-sided Channelization Construction
-------
III-7-
of pools and riffles, may be the most acceptable solution. The use of grade
variations to protect soils of differing degrees of sensitivity to erosion,
which may be located within the reach of the project, will increase channel
stability while allowing more freedom in design of the modification. (Figure 2).
Channel Re-alignments to Eliminate Meanders. Evaluation of the
suitability of constructing new channels must include a determination of
the effects on the level and quality of both the surface and ground water.
The soils that will be encountered, and the change in velocity and its effect
if no protection is provided, must be given adequate attention. This includes
potential scouring effects above the beginning and subsequent sediment
deposition below the end of the new shortened channel, both during high and
low flows. The elimination of the oxbows and meanders within the project
length will also affect the biological capabilities of the stream to act as a
natural purification system, which requires consideration. If, for example,
the biologic, hydrologic and geologic conditions at a project site permit
the increased velocity that will be produced in a new channel that eliminates
several meanders, that increased velocity must then be decreased to normal
below the project site to avoid erosion problems in the existing channel. It
should be noted that low flow barriers to slow velocity will be of little help
in preventing high water scouring within the modified reach. A stilling pond
may be employed to accomplish this, or a cascade or drop structure may be
used which will permit a much flatter slope immediately downstream to reduce
the velocity to an acceptable level. Any such device must itself be designed
so that it doesn't develop into a source of nonpoint pollution. If its efficiency
is impaired by trapped sediment, a maintenance program to periodically
clean out and properly dispose of the sediment buildup is essential. Suitable
means of energy dissipation must be incorporated into any drop structure to
reduce the likelihood of erosion.
-------
' Excavation
-Original Channel Bottom
Riffle, Pool, Riffle, Etc. Section (Fish Habitat)
CHANNEL PROFILE - BUILT IN GRADE AND BOTTOM CONFIGURATION
Excavation -
oo
i
(Adapted from Tech. Release No. 25,
Soil Conservation Service, USDA, 1971)
Figure 2 Channel Profile - Built In Grade and Bottom Configuration
-------
m-9-
Floodways. One type of structural modification used to control
flooding is the floodway. To be utilized, there must be adequate and
suitable land available for this purpose. Since the additional land will
require regrading to provide additional floodflow channel capacity, the
bottom elevation should maintain the hydraulic gradient of the normal
stage in the adjacent original channel. If the floodflow channel is much
shorter than the original channel, resulting in increased velocities,
energy dissipation structures must be included at its outlet. (Figure 3).
Retarding Basins for Temporary Storage. In locations where the
existing channel has the capacity to handle the flow of most of the typical
storms experienced, but not the major storms which occur infrequently,
the use of retarding basins to temporarily store the excessive flows
and allow for acceptable discharge rates may be the best solution. For
this alternative to be used, there must be suitable land available at
sites where the basins will be effective. This could be open park land,
or paved parking lots, for example. Regulation of the downstream hydro-
graph by this means permits lowering the flood stage elevation. A suitable
maintenance program must be implemented to clear out debris and sediment
that may otherwise render the basins ineffective. This measure has been
successfully implemented in many instances to accomodate the changed
hydrology that accompanies urban, commercial and industrial development,
as a requirement by law. To solve the space problem in these areas,
suitably-sized underground structures located under paved parking lots
have been utilized.
-------
111-10-
Excavate One Side Or
To Flood Flow Grade
(Adapted from Teen. Release ,'lo. 25,
Soil Conservation Service, USDA, 1971)
Spoil
• Spoil
,' 'Flood Channel
/Stage
^••••••^^^••M
UNDISTURBED STREAM CHANNEL & SEPARATE FLOOD FLOW CHANNEL
Figure 3 Undisturbed Stream Channel and Separate Flood Flow Channel
-------
m-ii
Debris Retention Basins. While retarding basins may work to retain
debris, in some areas the channel can handle flood flows without retard-
ing basins if the problems caused by excessive debris are eliminated.
When the terrain through which the watercourse flows will by its nature
contribute high levels of debris, and/or includes channel constrictions
that may become clogged by the debris, its collection in retention basins
needs serious consideration. There must be an adequate maintenance
program to properly remove and dispose of the debris when it accumulates.
Outlet design must include suitable measures to prevent clogging, such as
bar screens, log booms, or other devices most suitable for the expected
conditions at a given site.
Drainage Ditches. Areawide planning will include evaluation of the
possibility of changed or improved land use through construction of new
drainage ditches, and deepening of existing drainage channels. Environ-
mental aspects which must be given consideration include:
1. Environmental sensitivity of the area to such activities,
including:
a. Ground water level; quality.
b. Saltwater intrusion.
c. Soil stability.
d. Flora and fauna habitat.
2. Pollutants present in excavated or dredged material.
3. Measures to protect ditch banks from runoff erosion.
4. Environmental balance sheet of gains and losses with project
implementation.
5. Naturally low areas which may serve as stilling areas to settle
suspended solids, nutrients, etc.
6. Alternative use possibilities for the area under consideration.
-------
IH-12
Maintaining vegetated strips (including adequate shade to protect against
thermal pollution and low dissolved oxygen), on slopes and along both banks of
the drainage ditches and providing suitably sloped ditch banks where
feasible will help to prevent erosion due to overland flows. Layout of
the drainage patterns to keep flow velocities acceptably low will prevent
in-channel erosion problems.
IMPOUNDMENTS
Impoundments are constructed either as low-head reservoirs, usually
on mainstems, and primarily to maintain adequate depths to allow navigation,
or as multipurpose reservoirs on tributaries. Best Management Practices
must be incorporated in the actual construction to minimize the pollution
problems caused by soil erosion. Prior to this, the determination of need,
site selection, and project design must also recognize the necessity to
prevent nonpoint source pollution within the impoundment as well as from
the impoundment. Factors which must be given adequate consideration
in evaluating this type of hydrologic modification include:
1. Quality of the major source of influent water with respect
to sediment load, dissolved oxygen, color, turbidity, other chemical
qualities such as pH, inorganic salts, metals, nutrients, pesticides and
herbicides. The sediment load could cause high maintenance requirements,
or if carried through the reservoir by a density current, could impair
water quality below the discharge point. Such impoundments serve as
sediment traps, helping to prevent downstream water quality degradation
from this source, if it isn't carried through in a density current.
2. Effect of the impounded water on the ground water, which
may be beneficial or detrimental, depending on circumstances.
3. Effect of construction of dams and dikes on the movement
of ground water.
-------
Ill-13-
4. Organic and inorganic materials present in the soil which
will be flooded by the pool.
5. Provision of supplemental aeration to mix the reservoir
water, producing a uniform water temperature and adequate dissolved
oxygen levels. Maintaining dissolved oxygen levels in the hypolimnion
will prevent the formation and leaching of undesirable chemicals and
compounds from the benthic deposits which may occur under anaerobic
conditions.
6. Incorporating into the design of the dam and spillway structure
the deflectors necessary to prevent the discharge water from plunging too
deeply under the tailwater surface, where total dissolved gas supersaturation
in the stream below the dam may be a serious problem.
7. Providing for selective depth of withdrawal means in the
gate structure, and developing an operation procedure to assure that the
water withdrawn during any time of the year will not adversely impact the
downstream environment into which it is discharged.
8. Maximum and minimum allowable fluctuations in the surface
elevation of the operating pool, and an acceptable fluctuation rate.
9. The result of flow diversion for consumptive uses or diversion
out of the drainage basin, if this is a reason for the impoundment. Will
lowering the downstream hydraulic gradient produce adverse effects on
either the remaining volume of streamflow or the ground water ? Will
leaching due to inflow of additional ground water increase salinity or other
undesirable characteristics or, in tidal estuaries, will the salt water
incursion advance further upstream? Would a submerged dam in the
tidal estuary be necessary to block the advance of salt water, and if
utilized, what favorable and unfavorable ramifications might be produced?
-------
ni-14
CONSTRUCTION ACTIVITIES
Many practices which relate to construction activities involved in
hydrologic modifications have been discussed in the General section of
this chapter. Others, applicable to any construction project, are included
in separate guidance material for Best Management Practices applicable to
all construction activities.
In addition, with respect to urban development which results in
hydrologic modifications, such as increased runoff rates for storm water,
there are several measures that may be integrated into the project to
reduce the impact of the changes. They are designed to reduce or delay
runoff, and consist of the following:*
Area Reducing runoff Delaying runoff
Large flat roofs
Parking lots
Residential**
Cistern storage
Rooftop gardens
Pool or fountain
storage
Sod roof cover
Porous pavement
Concrete vaults and
cisterns under park-
ing lots
Vegetated ponding areas
Gravel trenches
Cisterns for homes
Gravel driveways
Contoured landscape
Ground water recharge
Vegetated depressions
General
Gravel alleys
Porous sidewalks
Mulched planters
Ponding on roof by
constricted downspouts
Increasing roof roughness
Grassy strips on parking lots
Grassed swales draining
parking lots
Ponding and detention measures
for impervious areas
Reservoir or detention
basin
Growing high-roughness
grass
Grassy driveways, gutters
and channels
Increased runoff travel
length
Gravel alleys
* Extracted from "Table 7-1. -- Measures for reducing and delaying urban
storm runoff", T. R. -55, Soil Conservation Service.
** Also applicable to agricultural runoff.
-------
m-15
A discussion of the advantages and disadvantages of each of the measures,
not included here, is contained in "Table 1-2. — Advantages and disadvantages
of measures for reducing and delaying runoff", also in T. R. -55, SCS.
RESOURCE RECOVERY OPERATIONS
Resource recovery operations may be underway or may be anticipated to
occur whenever economics and demand combine to produce a profit incentive,
or due to speculation by entrepreneurs. Such activities are primarily related
to the sand and gravel industry, but Best Management Practices to minimize
nonpoint source pollution during recovery of sand and gravel would be generally
applicable to recovery of any minerals. The pollution is generated by operations
conducted in or adjacent to streambeds when measures to prevent pollution are
inadequate. To the extent such measures have been described previously in
this chapter, they will not be repeated here. This guidance supplements, but
doesn't supersede, the requirements of any necessary permits issued under
Section 404 for control of point source pollution from sand and gravel operation
return flows.
Selection of appropriate gravel extraction equipment for the location,
and its proper operation, are important. Evaluation of the potential for
release of adsorbed pesticides, herbicides, nutrients, heavy metals
or other toxic substances, including fines which may settle out downstream
and smother the bottom organisms, is essential. In some locations,
it may only be necessary to provide a sedimentation basin to clarify
the drainage waters before their release back to the stream. However,
other sites may necessitate restricting the flow to a portion of the channel,
allowing extraction under near-dry to dry conditions in the remaining
channel or diverting the stream altogether. In these situations, opera-
tions would have to be scheduled during periods when the available
-------
m-16
channel capacity could handle the total flow, but the type of equipment
could be typical earthmoving machines.
The degree to which the channel is permitted to be re-shaped by the
operation must be integrated into the total effect that will be produced
beyond the area of the operation. If the operation is developed to reclaim
material deposited in a stilling basin, it may be necessary to provide
duplicate basins, to permit operations to proceed in one while the flow
is handled by the other. This will prevent loss of fines and adsorbed
pollutants downstream, while permitting year-round operations at a rate
equal to the rate of sediment build-up in the stilling basins.
WITHDRAWAL AND RECHARGE ACTIVITIES
Most pollution problems resulting from withdrawal and recharge
activities are classified as point sources. However, when changes induced
in ground water levels and flow directions as a result of withdrawal and
recharge activities result in contamination of an aquifer or stream of good
quality water by saline or poor quality water they should be treated as
nonpoint sources of water pollution. Similarly withdrawals from streams
that result in a lowering of the streamflow sufficiently to cause pollution
from poor quality ground water or saltwater inflows would be considered
nonpoint pollution sources. Prior to implementation of either type of
activity, extensive investigations may be necessary to assure that there
will be no undesirable short-term or long-range effects resulting from the
expected maximum zone of influence.
-------
CHAPTER IV
METHODOLOGY FOR ASSESSMENT OF POTENTIAL PROBLEMS
RESULTING FROM HYDROLOGIC MODIFICATIONS ACTIVITIES
AND FINAL PLAN CONTENTS AND FORMAT
INTRODUCTION
The area-wide planning agency or state-wide planning agency, in
non-designated areas, during the development of a modification plan, must
recognize hydrologic modifications which impact the existing hydrology.
This hydrologic modifications nonpoint source pollution control guidance
document is provided to assist State and Areawide 208 planning agencies
to carry out their water quality management and implementation policies.
Emphasis has been focused on the need to prevent those circumstances
and situations involving comprehensive land and water management plan
development which will produce non-point source pollution as a result of
hydrologic modifications, by application of Best Management Practices.
Such practices include evaluation of alternatives early in the planning
phase which may eliminate the need for a hydrologic modification, or
result in selection of non-structural measures to prevent the nonpoint
source pollution, although this manual is directed toward minimizing non-
point pollution from structural modifications.
Starting with initiation of the area-wide plan, it is extremely important
to identify environmentally sensitive land areas, and their locations with
respect to anticipated population growth directions, land use trends, zoning,
the area road development plans, and the drainage network. Recent popu-
lation growth pressures have produced problems in environmentally-sensitive
land areas. Where such problems brought early recognition of a need for
corrective measures, whether structural or non-structural, the lessons
taught by the past are valuable guides for today.
-------
IV-2-
'l-e this document is primarily concerned with Best Management
Practices required to meet water quality objectives other complimentary
needs should be recognized. An example is the requirements set forth
in the Endangered Species Act of 1973, P. L. 93-205 for the protection
of endangered species of flora and fauna.
Federally-funded hydrologic modification projects will utilize the
planning process described in the Water Resources Council's "Principles
and Standards" (P&S). The specific federal agency should be requested
to provide the planning agency guidance on the application of P&S for any
such project located in the planning area. This planning process, in-
tegrating the concept of Best Management Practices may also be utilized
successfully by the planning agency on projects for which no federal funds
are provided.
IDENTIFICATION METHODS AND CRITERIA
As typical methods of identifying environmentally sensitive land areas,
consider evaluation of subsurface exploration logs developed for construction
or water supply purposes within the area. Identify all existing wetland areas,
and all areas with excessively steep slopes (as determined by the types of
soils, this may vary) through the use of Soil Conservation Service, Geological
Survey, Army Map Service, and possibly private mapping and surveying
services, including photomapping. Recognize that radically altering the
ground cover may transfer otherwise stable ground into the environmentally
sensitive category.
As noted in the referenced information source identified at the end
of this Handbook, there is no one optimum way of treating all environ-
mentally-sensitive lands. This has resulted in land-performance type
-------
rv-3-
regulatory programs, and environmental performance standards. It
becomes the responsibility of the developer to choose acceptable methods
that will be in compliance in such locations.
Criteria available which must receive attention are the established
water quality standards. The use(s) for which specific stream reaches
have been designated may preclude consideration of certain types of
hydrologic modifications, completely.
Determination of the effects of a proposed hydrologic modification may
require development of "as-is" and "future" hydrographs, for comparative
purposes. This will require rainfall data for the area in question, to
reflect duration, distribution and intensity. This type of statistics, and
even hydrographs, may be available from studies conducted by local
universities in some areas. Their development and use is adequately
covered in technical texts on the subject, and will not be included here.
PRIMARY CONSIDERATIONS
Land use developments, whether related to population, industry,
agriculture, commercial development, or other areas, need to be identified
and located, spatially. To be realistic, they should be determined assuming
current or pending controls, such as zoning and land use regulation that
will remain in effect. At the same time, those land areas whose destruction
or disturbance will immediately affect the life of a community by either
(1) creating hazards such as flooding and landslides, (2) destroying im-
portant public resources, such as water supplies and the water quality of
lakes and rivers, for which standards have been established, or (3) wasting
renewable resources and important productive lands (including wetlands)
must be identified.
-------
rv-4-
While the approach selected to determine development trends will
vary considerably, a starting point will be with the personnel and agencies
identified in Chapter I. Many metropolitan areas have already prepared
comprehensive land and water development plans, and initiated the legislative
action necessary to insure their fruition, or found it essential to modify
the plans to accomodate the political realities of the locality. In other
areas, watershed development plans are available and contain much
information to be incorporated in the area-wide plan, modified as necessary
to include appropriate Best Management Practices.
In agriculture-intensive areas, the Soil Conservation Service or
conservation districts, utilizing information on soil types and topography,
have developed land use classifications with respect to their suitability for
crop growth and prevention of soil erosion. Many areas have been classified
using this system. Although not developed specifically for the purpose of
identifying environmentally-sensitive areas, the classification data can be
adapted to aid in locating such areas. Comparison of these sensitive areas
with the initial locations of expected development based on trends and land
use controls plan may result in plan modification to provide for the protection
and preservation of the land.
SECONDARY CONSIDERATIONS
The area-wide planning agency's BMP program must be closely coordinated
with plans developed or to be developed for contiguous or nearby areas.
Activities planned for, or conducted within the jurisdiction of, these area-
wide planning agencies must incorporate mutually acceptable Best Management
Practices. The assessment of development directions which will require
hydrologic modifications should meet with the approval of the contiguous
-------
IV-5-
agency, to aid in evaluating potential problems from a common base.
This is the situation whether the effort is directed towards structural,
nonstructural, or a combination of these measures.
The increased sediment load generated by erosion of disturbed soils
during the actual construction of hydrologic modifications, is a significant
pollutant source which requires control by application of Best Management
Practices. For guidance in applicable methodology concerning analysis
of this potential problem, those steps outlined in the separate guidance
document prepared for construction and agriculture Best Management
Practices should be used. It should be noted that location of the con-
struction effort within the streambed in many instances must be taken
into consideration.
ASSESSMENT OUTPUTS
Conclusions reached as a result of the assessment must be incorporated
into comprehensive area-wide land and water management plans. These
plans should be developed in response to the desires of the general public.
Whenever it is feasible to do so, the alternative hydrologic modifications
anticipated, and the associated Best Management Practices to prevent water
pollution, identified in the assessment, should be presented in public forums.
The results of such exposure should be discussed in the area-wide plan.
A program to be followed for presenting other portions of the plan to the
public at appropriate future dates, during implementation stages, should
be included.
As development proceeds, re-evaluation and modification of the area-
wide plan will be required. The manner in which this will be accomplished,
and the expected frequency of review should be described fully.
-------
IV-6-
No plan is any good without an acceptable implementation schedule,
and a budget including the necessary supporting funds. This schedule should
at least include completion of all the major existing projects requiring
corrective action, and those new projects which the assessment of potential
problems disclosed would generate nonpoint source pollution without application
of Best Management Practices. Contracts should include detailed requirements,
and be phased to facilitate regular monitoring of work performance.
PRESENTATION FORMAT
Although different methods of presenting the data are used, most
will include both area maps and narrative descriptions. A way of developing
area maps is to use a series of overlay transparencies, with the number
needed determined by the amount of information that can be displayed
on each without causing confusion. An alternative method to convey the
desired information, would be to display data with suitable color coding
on a series of map prints.
Such maps which show the drainage network, environmentally -
sensitive land areas, and the locations of the different types of expected
area developments, will enable the agency staff to anticipate where hydro-
logic modifications may be required and what types to expect. For example,
where channel modifications appear likely, an analysis of alternatives and
determination of the Best Management Practices which must be incorporated
to prevent nonpoint source pollution is required. The recommended type
of channel modification for any specific location should be included.
The presentation may be organized as a portion of the total planning
output, including all the applicable categories of nonpoint source pollution,
or as of a series of appendices, each developed to outline a category of non-
point source pollutants.
-------
IV-7-
A suitable summary of the planning area recommendations, for use in
addressing the general public, should be included. It should be couched in
lay terminology, readily understandable to non-technical people. Maps and
pictures should be used to the extent possible to present the anticipated changes
which will require the application of the Best Management Practices described.
This summary should include all aspects of the area development, including
hydrologic modifications anticipated, in a well-integrated presentation.
UTILIZATION BY OTHER THAN PLANNING AGENCIES
It is incumbent upon the area-wide and state-wide planning agencies
to assure that this and other similar guidance handbooks are called to the
attention of, and made available to, developers or sponsors with projects
either under way, or proposed, that are located within or in the vicinity
of the area encompassed by the planning agency.
-------
IS-1-
INFORMATION SOURCES
Nonpoint source pollution control practices discussed above
in summary form are described in more detail in the following
publications.
1. "The Control of Pollution From Hydrpgraphic Modifications",
EPA-430/9-73-017, United States Environmental Protection
Agency, Washington, D.C. 20460, 1973
2. "Performance Controls for Sensitive Lands: A Practical Guide
for Local Administrators", EPA-600/5-75-005, Office of
Research and Development, U.S. Environmental Protection
Agency, Washington, D.C. 20460, March 1975.
3. "Investigation of Fugitive Dust Sources, Emissions, and
Control, Volume I", EPA-450/3-74-036-a, U. S. Environmental
Protection Agency, Office of Air and Waste Management,
Research Triangle Park, North Carolina 27711, June 1974.
4. "Methods for Identifying and Evaluating the Nature and Extent
of Nonpoint Sources of Pollutants", EPA-430/9-73-014, U.S.
Environmental Protection Agency, Washington, D.C. 20460,
October 1973.
5. "Compilation of Federal, State and Local Laws Controlling
Nonpoint Pollutants", EPA-440/9-75-011, U.S. Environmental
Protection Agency, Washington, D.C. . 20460, September, 1975.
6. "Impact of Hydrologic Modifications on Water Quality", EPA-600/2-
75-007, U.S. Environmental Protection Agency, Washington, D.C.
20460, April, 1975.
7. U.S. Department of Agriculture, Soil Conservation Service,
"National Engineering Handbook, Section 4, Hydrology", August, 1972.
8. "Dredged Material Research Program, Ecological Evaluation of
Proposed Discharge of Dredged or Fill Material into Navigable
Waters", Miscellaneous Paper D-75-17, Office, Chief of Engineers,
U.S. Army, Washington, D.C. 20314, May 1976.
9. "Methodologies for the Determination of Stream Resource Flow
Requirements: an Assessment" U.S. Fish and Wildlife Service,
Office of Biological Services, Western Water Allocation, 1976.
10. "Public Participation Handbook for Water Quality Management",
Water Quality Management Guidance 6-76-02, Environmental Protection
Agency, Washington, D.C. 20460, June 1976.
11. "Report on Channel Modifications", Volumes I and II, The Council
on Environmental Quality, March 1973 (Volume I available on
request to CEQ, in limited numbers.)
-------
IS-2-
12. "Impacts of Construction Activities in Wetlands of the
United States", EPA-600/3-76-045, U.S. Environmental
Protection Agency, Corvallis, Oregon, 97330 April 1976.
-------
APPENDIX
INDEX
Appendix A Federal Register, Friday, July 25, 1975, Volume 40
Number 144, Part IV, Department of Defense, Corps
of Engineers, "Permits for Activities in Navigable
Waters or Ocean Waters".
Appendix B Federal Register, Friday, September 5, 1975, Volume
40, Number 173, Part II, Environmental Protection
Agency, "Navigable Waters, Discharge of Dredged or
Fill Material".
Appendix C Federal Register, Wednesday, May 2, 1973, Volume 38,
Number 84, Part I, Environmental Protection Agency,
"Protection of Nation's Wetlands, Policy Statement".
-------
•A-l
APPENDIX A
Many of the types of hydrologic modifications considered require
dredging during their implementation or during their operation. For
navigable waterway segments, it will be necessary to comply with require-
ments outlined in the information included in this Appendix, which covers
testing of the material that it is proposed to dredge and deposit in
spoil areas. The interim final regulations, as published, are subject
to revision and publication in final form in the Federal Register. When
this occurs, the final version will replace the one included in this Appendix.
Prior to using the incorporated regulations, the appropriate District
Engineer, U.S. Army Corps of Engineers should be contacted to ensure it
is still current, or to obtain the latest version, if one is available.
-------
FRIDAY, JULY 25, 1975
WASHINGTON, D.C.
Volume 40 • Number 144
PART IV
DEPARTMENT
OF DEFENSE
Corps of Engineers
PERMITS FOR ACTIVITIES
IN NAVIGABLE WATERS
OR OCEAN WATERS
-------
31320
RULES AND REGULATIONS
Title 33—Navigation and Navigable Waters
CHAPTER I!—CORPS OF ENGINEERS,
DEPARTMENT OF THE ARMY
PART 209—ADMINISTRATIVE
PROCEDURE
Permits for Activities in Navigable Waters
or Ocean Waters
On May 6,1975, the Department of the
Army, acting through the Corps of Engi-
neers, published four alternative pro-
posed regulations in response to the or-
der of the United States District Court
for the District of Columbia in NRDC v.
Callaway, et al., P. Supp. , 7
ERG 1784, (D.D.C., March 27, 1975).
Each of the four alternative proposed
regulations pertained to the regulation,
by the Corps of Engineers, of those ac-
tivities involving the discharge of
dredged or fill material in navigable
waters pursuant to section 404 of the
Federal Water Pollution Control Act
Amendments of 1972 (hereinafter re-
ferred to as the FWPCA). Each of these
alternatives offered an administrative
definition of the term "navigable waters"
for public review and comment, as well as
a definition of the terms "fill material"
and "dredged material" and varying pro-
cedures to implement the regulatory per-
mit program under Section 404 of the
FWPCA.
Over 4,500 comments were received In
response to this regulation. Those re-
sponding to the regulation included' a
large number of Governors; members of
Congress; Federal, State, and local agen-
cies; environmental organizations; com-
mercial, industrial, and trade organiza-
tions; port authorities; agricultural or-
ganizations; and individual members of
the public. A large number of these com-
ments addressed the issue of whether
there should or should not be a Federal
permit program to regulate the discharge
of dredged or fill material in navigable
waters (defined in the FWPCA. as "waters
of the United States") rather than the
particular provisions in the four alterna-
tive proposed regulations under review.
Many comments appeared to be re-
sponses to the wide spread news coverage
of the proposed regulation.
Those comments which did address sub-
stantive aspects of the. regulation were
helpful in meeting the dual purposes of
the FWPCA; First, the development of a
workable program; and, second, the
needs of water quality. The regulation
has clarified the activities which are in-
cluded in the program and has incorpo-
rated administrative mechanisms to les-
sen the impacts of the regulation on
affected Federal and State agencies, and
on the public. To further refine the pro-
gram the Corps will again need the help
of the public and pf State and Federal
agencies in Identifying activities and
bodies of water that can be excluded
from the Section 404 program without
adverse impact on the chemical, physi-
cal, or biological integrity of the nation's
waters.
We look forward to again working
with the public and the State and Fed-
eral agencies on these further changes.
The Corps of Engineers wishes to take
this opportunity to express its apprecia-
tion to every individual,- organization,
and governmental agency and represent-
ative that submitted comments during
this rule-making exercise.
The Department of the Army, acting
through the Corps of Engineers, is pub-
lishing herewith an interim final regula-
tion which prescribes the policies, prac-
tice, and procedures to be followed in
the processing of Department of the
Army permits for activities in navigable
or ocean waters including the discharge
of dredged or fill material in navigable
waters. Interim final regulations are be-
ing published in order to begin immedi-
ately to implement a permit program
under Section 404 of the FWPCA in those
waters which will be included in the
Corps regulatory jurisdiction as a result
of the decision in NRDC v. Callaway.
However, while this regulation becomes
effective July 25, 1975, there will be an
additional comment period of 90 days in
order that the public can comment fur-
•ther on any of its provisions. Thereafter,
these comments will be reviewed and the
regulation modified, if necessary. -
The development of a permit program
to regulate the discharge of dredged ma-
terial and fill material in all waters of
the United States has been the subject
of intensive discussions between the
Corps of Engineers and the Environ-
mental Protection Agency since the de-
cision in NRDC v. Callaway. We have
worked together in an effort to develop
a program that is manageable, responsive
to the concerns of protecting vital na-
tional water resources from destruction
through irresponsible and irreversible
decisions, and sensitive to the often con-
flicting needs and desires of people who
utilize these resources. We have at-
tempted to create a program that rec-
ognizes the need to interweave all con-
cerns of the public—environmental,
social, and economic—in the decision-
making process; that recognizes that
present limitations on manpower pre-
clude its immediate Implementation
throughout the country; and that we be-
lieve to be responsive to the overall ob-
jectives and needs of the Federal Water
Pollution Control Act to the extent that
the law now allows.
We recognize that this program, In
its effort to protect water duality to the
fujl extent of the commerce clause, will
extend Federal regulation over dis-
charges of dredged or fill material to
many areas that have never before been
subject to Federal permits or to this form
of water quality protection. We therefore
strongly urge the public to review and
comment further on this interim final
regulation in order that it can be modi-
fied, where necessary and legally permis-
sible, to fully address your concerns, de-
sires, goals, and objectives. To assist you
In your analysis and understanding of
this regulation, representatives ijrom the
Corps of Engineers intend to travel
throughout the country during the next
90 days and conduct publi6 hearings on
this regulation. We urge your participa-
tion in these hearings when they are
scheduled in your area.
As we move into this new program, we
also urge your support and understand-
ing. To the extent that enforcement of
Its provisions becomes necessary, the
Corps of Engineers intends to request
the Department of Justice and the En-
vironmental Protection Agency to take
appropriate action. However, we intend
to pursue a reasonable enforcement pro-
gram over these activities that have
never before been subject to Federal reg-
ulation, relying initially on an intensive
public information campaign to make
the public aware of the requirements of
Section 404 of the FWPCA. It is our de-
sire and intention to work closely with
the Department of Justice and the En-
vironmental Protection Agency to
achieve this purpose.
On May 6, 1975, the Environmental
Protection Agency, in conjunction with
the Department of the Army, published
proposed guidelines for public comment
which are required by section 404 (b) of
the FWPCA in the review of a permit
application for the discharge of dredged
or fill material. It is anticipated that final
/guidelines will be published about
August 15, 1975. During the interim, the
present procedures will be utilized by
Corps District Engineers in the review
of permit applications for the discharge
of dredged or fill material in navigable
waters.
There follows a brief discussion of the
pertinent sections of this regulation
which-address the discharge of dredged
or fill material in navigable waters:
Paragraph (.d) (2): This paragraph de-
fines the term "navigable waters" and in
so doing identifies those waters of the
United States which are subject to Corps
Jurisdiction under section 404 of the
FWPCA.
With respect to the coastal regions of
the country, Corps jurisdiction would ex-
tend to all coastal waters subject to the
ebb and flow of the tide shoreward to
their mean high water mark (mean
higher high water mark on the Pacific
Coast) and also to all wetlands, mudflats,
swamps, and similar areas which are con-
tiguous or adjacent to coastal waters.
This would include wetlands periodically
inundated by saline or brackish waters
that are'characterized by the presence
of salt water vegetation capable of
growth and reproduction, and also wet-
lands (including marshes; shallows,
swamps and similar areas) that are pe-
riodically Inundated by freshwater and
normally characterized by the prevalence
of vegetation, that requires saturated soil
conditions for growth and reproduction.
In months to come, we intend to publish
a list of fresh, brackish, and salt water
vegetation that can be used as one of
the indicators in determining the extent
of Corps jurisdiction in these areas.
With respect to the inland areas of the
country, Corps jurisdiction under Sec-
tion 404 of the FWPCA would extend to
all rivers, lakes, and streams that are
navigable waters of the United States,
to all tributaries (primary, secondary,
tertiary, etc.) of navigable waters of the
United States, and to all interstate
waters. In addition, Corps jurisdiction
would extend to those waters located en-
FEDERAl REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
RULES AND REGULATIONS
31321
tirely within one state that are utilized by
interstate travelers for water related rec-
reational purposes, or to remove fish for
sale in interstate commerce, or for indus-
trial purposes or the production of agri-
cultural commodities sold or transported
in interstate commerce. Corps jurisdic-
tion over these water bodies would extend
landward to their ordinary high water
mark and up to their headwaters, as well
as to all contiguous or adjacent wetlands
to these waters which are periodically
inundated by freshwater, brackish water,
or salt water and are characterized by
the prevalence of aquatic vegetation, as
described in the preceding paragraph,
that are capable of growth and repro-
duction. Manmade canals which are nav-
igated by recreational or other craft are
also included hi this definition. Drain-
age and irrigation ditches have been
excluded.
We realize that some ecologically val-
uable water bodies or environmentally
damaging practices may have been omit-
ted. To insure that these waters are also
protected, we have given the District En-
gineer discretionary authority to also
regulate them on a case by case basis.
Paragraph (.a) (2) (ii): Several addi-
tional definitions amplify the definition
of navigable waters and are expressed in
this paragraph. "Ordinary high water
mark", used as a measurement point to
determine the extent of Federal jurisdic-
tion in inland freshwater rivers, streams,
and lakes that do not have wetlands con-
tiguous or adjacent to them, is estab-
lished as that point on shore which is
inundated 25% of the time (derived by a
flow duration curve based on available
water stage data).
"Headwaters" has been defined as the
point on a stream beyond which the flow
of the water body is normally less than
five cubic feet per second. However, other
factors, such as the volume of flow and
point and nonpoint source discharge
characteristics in the area will also be
considered in determining these limits.
Finally, "lakes" have been defined to in-
clude all natural bodies of water greater
than five acres in surface area and also
all bodies of standing water created by
impounding any navigable water. This
would not include stock watering ponds
and settling basins, other than those that
result from the impoundment of a navi-
gable water.
During the 90 day comment period,
the public is urged to carefully review
these various definitions, particularly
with respect to "ordinary high water
mark," "headwaters," and "lakes" and
furnish comments and recommended re-
visions to assist in the development of a
final definition of this term that is con-
sistent with the goals and objectives of
the FWPCA to protect water quality.
Paragraph (tf) (.4): The term "dredged
'material" has been defined to include
any material that is excavated or dredged
from any of the waters of the United
States identified m the preceding para-
graphs. It would not includfe material
which is obtained from some other source
beyond a water of the United States, and
also would- not liiclude materials pro-
duced in normal farming, silvaculture,
and ranching activities such as plowing,
cultivating, seeding, and harvesting.
Paragraph (.a) <5): The term "dis-
charge of dredged material" has been
added to the lists of definitions in an
effort to clarify the types of activities
that fall under this term. Under this
definition, therefore, any material which
is excavated or dredged from a navigable
water and then reintroduced through a
point source into a navigable water
would fall under this term. The types of
activities encompassed by this term
would include the depositing into navi-
gable waters of dredged material if it is
placed alongside of a newly dredged
canal which has been excavated in a wet-
land area. It would also include mainte-
nance of these canals if excavated mate-
rial is placed in navigable waters. Also
included is the runoff or overflow from a
contained land or water disposal area.
The term "discharge of dredged ma-
terial" does not include the discharge of
pollutants into navigable waters that
occur during the subsequent land based
processing of dredged material extracted
for commercial use even though the op-
eration of extracting the materials itself
may require a permit from the Corps of
Engineers under section 10 of the River
and Harbor Act of 1899. Discharges of
materials from land based commercial
washing operations are regulated under
section 402 of the FWPCA.
Paragraph (A) (6): The term "fill ma-
terial" has been defined to mean any
pollutant used to create fill in the tradi-
tional sense of replacing an aquatic area
with dry land or changing the bottom
elevation of a water body for any pur-
pose. Again, materials resulting from
normal farming, silviculture, and ranch-
ing activities, such as plowing, cultivat-
ing, seeding, and harvesting for the
production of food, fiber, and forest prod-
ucts, would not fall within this term.
Farm conservation practices such as ter-
racing, check dams and landleveling
would also not be regulated unless they
occur in navigable waters. In addition,
maintenance or emergency reconstruc-
tion of existing structures such as dikes,
dams, or levees, will not be regulated.
Paragraph (d>(7) : A new term "dis-
charge of fill material" has been added
to identify the types of activities to be
regulated under section 404 of the
FPWCA if, and only if, they are per-
formed in a navigable water as that term
has been defined in the regulation and
discussed in the preceding paragraphs.
Those activities falling within this
term include site development fills for
recreational, industrial, commercial, resi-
dential, and other uses; causeways or
road fills; dams and dikes; artificial is-
lands; property protection and"/or recla-
mation devices such as riprap, groins,
seawalls, breakwaters, and bulkheads
and fills; beach nourishment; levees;
sanitary landfills; backfill required for
the placement of structure? such as sew-
age treatment facilities, intake and out-
fall pipes associated" with power plants,
and subaqueous utility lines; and arti-
ficial reefs.
Paragraph (e~> (2): In view of man-
power and budgetary constraints it is
necessary that this program be phased
in over a two year period. Provision for
such a phase-in approach exists in this
paragraph. Thus, under Phase I, this
regulation would become immediately
operative in all coastal waters and con-
tiguous or adjacent wetlands as well as
inland rivers, lakes and streams that are
navigable waters of the United States
(which the Corps of Engineers is already
regulating) and their contiguous or ad-
jacent wetlands. In Phase II, which
would begin on July 1, 1976, we would
continue to regulate all of those dis-
charges of dredged material occurring in
those waters identified in Phase I, and
also begin to regulate discharges of
dredged or fill material in primary tribu-
taries (the main stems of tributaries di-
rectly connecting to navigable waters of
the United States), their contiguous or
adjacent wetlands, and all lakes. Finally,
in Phase III, all discharges of dredged or
fill material in navigable waters would
be regulated after July 1,1977.
We believe that the initial thrust of
this phase-in program will enable the
protection of those wetland and water
resources areas that are in immediate
danger of being further destroyed
through unregulated development. As
we move to implement these phases, we
will endeavor to utilize general categori-
cal permits to the maximum possible ex-
tent relying on individual permit actions
to regulate only those environmentally
significant activities. We will also at-
tempt to identify additional categories
of activities which can be excluded at
a later date.
Discharges of dredged or fill material
that occur before a particular water body
falls under a particular phase are per-
mitted by the regulation in paragraph
(e)(2)(i), provided certain prescribed
conditions are met before the discharge
occurs. Included in these conditions is
the requirement to obtain a State water
quality certification (or to have the State
waive its right to so certify) and the
requirement to certify under section 307
(c) (3) of the Coastal Zone Management
Act of 1972 that the discharge will be
in compliance with an approved coastal
zone management program. This para-
graph does not automatically exempt all
discharges of dredged or fill material not
covered by a particular phase from the
permitting requirements of this regula-
tion, for it still gives the District Engi-
neer the option of exercising jurisdiction
over any activity involving the discharge
of dredged or fill material in those cases
where the activity will have a significant
impact on the environment.
Paragraph cubic yards which was
commenced before the date of this regu-
lation and is completed within six
months. This 500 cubic yard exemption
KDERAl REGISTER, VOU 40, NO. 144—FRIDAY, JULY 25, 1973
-------
31322
RULES AND REGULATIONS
to the requirements of this regulation
only pertains to a single and complete
project, and would not encompass cu-
mulative discharges of dredged or fill
material, each less than 500 cubic yards,
in a large number of projects which com-
prise and are associated with a complete
plan of development. The term "com-
menced" as used in this paragraph is
satisfied if there has been some discharge
of dredged or fill material at a specified
disposal site or the entering into a writ-
ten contract to do such before the date
of the regulation. The "grandfathering"
of these activities does not avoid the
legal requirement to comply with the
State water quality certification require-
ments of section 401 of the FWPCA or
to furnish a coastal zone management
certification, however.
Paragraph (e) (2) (iv): This para-
graph permits, (without the need for the
processing of a individual permit appli-
cation through the procedures in the
regulation), minor bulkheads and fills
that are constructed in waters other than
navigable waters of the United States
provided they are less than 500 feet In
length, constructed for property protec-
tion, and involve the discharge of less
than an average of one cubic yard per
running foot. However, while these types
of discharges are permitted through the
regulation, conditions have also been im-
posed that must be met before the dis-
charge can occur (including the need to
obtain a water quality certification and
furnish s. coastal zone management cer-
tification). In addition, the District
Engineer can still exercise jurisdiction
over these activities in those cases where
he determines that the discharge will
have a significant impact on the environ-
. ment.
We believe that this administrative
mechanism of authorizing this type of
activity through the regulation is essen-
tial in order to make this program man-
ageable from a manpower and resources
point of view, and still protect the aquatic
environment. In addition, it serves as a
mechanism to alleviate the administra-
tive burdens which are encountered in
the normal processing of individual per-
mits. To this end, we intend to rely
heavily on the general public to bring to
the attention of the District Engineer
those minor bulkhead and fill activities
which, while falling within the protec-
tion of this paragraph, should be regu-
lated on a case by case basis.
Paragraph (e) (.4): Activities of Fed-
eral agencies that involve the discharge
of dredged material or of fill material
into navigable waters are not exempt
from the provisions of this regulation.
Activities of the Corps of Engineers in-
volving such discharges are reviewed and
regulated pursuant to the policies and
procedures expressed in Title 33 of the
Code of Federal Regulations, Part
209.145.
Paragraph. (/) (3): We believe there is
considerable merit in having the States
become directly involved in the decision-
making process to the maximum extent
possible under the law. Indeed, many
states already have ongoing permit pro-
grams which address many, and, in some
cases all, of the concerns which are ad-
dressed in the Corps decision-making
process. Three ways will be used to in-
volve the States in this decision-making
process. We have embodied these three
mechanisms in an effort to make the
program manageable and publicly ac-
ceptable, and in response to the over-
whelming number of comments which
supported the basic concept.
First, since each discharge of dredged
or fill material into a navigable water is,
in effect, the discharge of a pollutant
into the water, a State water quality cer-
tification is required under section 401
of the FWPCA before that discharge can
be lawfully undertaken. Provision has
therefore been made in the opening para-
graph of this section to indicate this legal
requirement. Thus, any State may cause
the denial of a section 404 permit if it
chooses to deny a water quality certifica-
tion. Similar situations also exist in
those states with approved coastal zone
management plans: An individual in
states with such plans must also certify
that his activity will comply with the ap-
proved plan. On the other hand, where
the state does not have such a certifica-
tion program or delays the processing
of its certification, we will still begin to
process the section 404 permit. In absence
of a timely response from the State, the
section 404 permit will be processed to a
conclusion.
Second, we are mindful that many
states have existing permit programs to
regulate the same types of activities that
will be regulated through section 404 of
the FWPCA by the Corps of Engineers.
To the extent possible, it is our desire to
support the state in its decision. Thus,
where a state denies a permit, the Corps
will not issue a section 404 permit. On the
other hand, if a state issues a permit, the
Corps would not deny its permit unless
there are overriding national factors of
the public interest which dictate such
action. We believe that this type of situa-
tion can be kept to a minimum provided
the State's permit program has built
into it the policies, procedures, goals,
requirements, and objectives embodied
in the Corps permit program and the
national legislation which molded and
supports it. This would include, for ex-
ample, the concerns and requirements of
the National Environmental Policy Act,
the Fish and Wildlife Coordination Act,
the Endangered Species Act, the Coastal
Zone Management Act, and the FWPCA.
In view of this objective, a section 404
permit will generally be issued following
a favorable State determination unless
overriding national factors of the public
interest are revealed during the final
processing of the section 404 permit ap-
plication and provided the concerns, pol-
icies, goals, and requirements expressed
in the above cited statutes, the Corps
policies, and the guidelines have been
addressed. In those States without any
type of permit program to regulate the
types of activities envisioned by section
404, we believe that the objectives ex-
pressed in this subparagraph should give
them guidance in the formulation of
their respective programs should they
choose to do so.
Finally, provision has been made in
subparagraph (v) of this section to allow
the District Engineer to enter into an
agreement with those States having on-
going permit programs which would en-
able joint processing of the Department
of the Army and the state permit appli-
cation to an independent conclusion by
each entity. This would include joint
public notices, joint public hearings, and
the joint development, review, and analy-
sis of information which leads to the
final decision on a permit application.
We strongly encourage States to work
with our District Engineers in this effort
for we feel that this is a valuable mech-
anism to make this program manageable
and publicly acceptable as well as a
means to avoid unnecessary duplication
of eif ort.
Paragraph (i) (2) (zx): We have also
adopted a procedure, found in this para-
graph, to process general permits for cer-
tain clearly described categories. A gen-
eral permit once issued would preclude
the. need for any further permit for
similar work and would prescribe condi-
tions to be followed in the future per-
formance of such work. We hope this
mechanism will go far in making our en-
tire regulatory program administra-
tively manageable, and we will attempt to
use the general permit for many cate-
gories in Phases II and III prior to the
effective date of those phases. We intend
to urge our District Engineers to utilize
this mechanism as often as possible, and
we request that those Federal agencies,
organizations, and members of the pub-
lic who review and comment on public
notices for general permits do so in a
spirit of cooperation, constructive criti-
cism and'suggestion.
During the next 90 days, comments
addressing this interim final regulation
should be submitted in writing to the
Chief of Engineers, Forrestal Building,
Washington, D.C. 20314, ATTN: DAEN-
CWO-N.
It is hereby certified that the economic
and inflationary impacts of this regula-
tion have been carefully evaluated in ac-
cordance with OMB Circular A-107.
Dated: July 22. 1975.
ROBERT B. HUGHES,
Colonel, Corps of Engineers, As-
sistant Chief, Construction-
Operations, Directorate of
Civil Works.
§ 209.120 Permits for activities in Navi-
gable Waters or Ocean Waters.
(a) Purpose. This regulation pre-
scribes the policy, practice, and procedure
to be followed by all Corps of Engineers
installations and activities in connection
with applications for permits authorizing
structures and work in or affecting nav-
igable waters of the United States, the
discharge of dredged or fill material into
navigable waters, and the transportation
of dredged material for the purpose of
dumping it into ocean waters.
(b) Laws requiring authorization of
structures or work. (1) Section 9 of the
FEDERAL REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
River and Harbor Act approved March 3,
1899 (30 Stat. 1151; 33 U.S.C. 401) pro-
hibits the construction of any dam or
dike across any navigable water of the
United States in the absence of Congres-
sional consent and approval of the plans
by the Chief of Engineers and the Secre-
tary of the Army. Where the navigable
portions of the waterbody lie wholly
within the limits of a single State, the
structure may be built under authority of
the legislature of that State, if the loca-
tion and plans or any modification
thereof, are approved by the Chief of En-
gineers and by the Secretary of the Army.
The instrument of authorization is desig-
nated a permit. Section 9 also pertains to
bridges and causeways but the authority
of the Secretary of the Army and Chief
of Engineers with respect to bridges and
causeways was transferred to the Secre-
tary of Transportation under the De-
partment of Transportation Act on Oc-
tober 16, 1966 (80 Stat. 941, 49 U.S.C.
1165g(6)(A)).
(2) Section 10 of the River and Harbor
Act approved March 3, 1899 (30 Stat.
1151; 33 U.S.C. 403) prohibits the un-
authorized obstruction or alteration of
any navigable water of the United States.
The construction of any structure in or
over any navigable water of the United
States, the excavation from or depositing
of material in such waters, or the accom-
plishment of any other work affecting the
course, location, condition, or capacity
of such waters are unlawful unless the
work has been recommended by the Chief
of Engineers and authorized by the Sec-
retary of the Army. The instrument of
authorization is designated a permit or
letter of permission. The authority of the
Secretary of the Army to prevent ob-
structions to navigation in the navigable
waters of the United States was extended
to artificial islands and fixed structures
located on the outer continental shelf by
section 4(f) of the Outer Continental
Shelf Lands Act of 1953 (67 Stat. 463;
43 U.S.C. 1333 (f)).
(3) Section 11 of the River and Harbor
Act approved March 3, 1899 (30 Stat.
1151; 33 U.S.C. 404) authorizes the Secre-
tary of the Army to establish harbor lines
channelward of which no piers, wharves,
bulkheads, or other works may be ex-
tended or deposits made without approval
of the Secretary of the Army. Regula-
tions (ER 1145-2-304) have been pro-
mulgated relative to this authority and
published at § 209.150. By policy stated in
those regulations effective May 27, 1970,
harbor lines are guidelines only for defin-
ing the offshore limits of structures and
fills insofar as they impact on navigation
interests. Except as provided in para-
graph (e) (1) of this section below, per-
mits for work shoreward of those lines
must be obtained in accordance with' sec-
tion 10 of the same Act, cited above.
(4) Section 13 of the River and Har-
bor Act approved March 3,1899 (30 Stat.
1152; 33 U.S.C. 407) provides that the
Secretary of the Army, whenever the
Chief of Engineers determines that an-
chorage and navigation will not be in-
jured thereby, may permit the discharge
of refuse into navigable waters. In the
RULES AND REGULATIONS
absence of a permit, such discharge of
refuse is prohibited. While the prohibi-
tion of this section, known as the Refuse
Act, is still in effect, the permit authority
of the Secretary of the Army has been
superseded by the permit authority pro-
vided the Administrator, Environmental
Protection Agency, under sections 402
and 405 of the Federal Water Pollution
Control Act (PL 92-500, 86 Stat 816, 33
U.S.C. 1342 and 1345).
(5) Section 14 of the River and Har-
bor Act approved March 3, 1899 (30
Stat. 1152; 33 U.S.C. 408) provides that
the Secretary of the Army on the recom-
mendation of the Chief of Engineers may
grant permission for the temporary oc-
cupation or use of any sea wall, bulKhead,
jetty, diKe, levee, wharf, pier, or other
work built by the United States. This
permission will be granted by an appro-
priate real estate instrument in accord-
ance with existing real estate regulations.
(6) Section 1 of the River and Harbor
Act of June 13, 1902 (32 Stat. 371; 33
U.S.C. 565) allows any persons or cor-
porations desiring to improve any navi-
gable river at their own expense and risk
to do so upon the approval of the plans
and specifications by the Secretary of
the Army and the Chief of Engineers.
Improvements constructed under this
authority, which are primarily in Federal
project areas, remain subject to the con-
trol and supervision of the Secretary of
the Army and the Chief of Engineers.
The instrument of authorization is
designated a permit.
(7) Section 404 of the Federal Water
Pollution Control Act (PL 92-500, 86
Stat. 816, 33 U.S.C. 1344) authorizes the
Secretary of the Army, acting through
the Chief of Engineers, to issue permits,
after notice and opportunity for public
hearings, for the discharge of dredged
or fill material into the navigable waters
at specified disposal sites. The selection
of disposal sites will be in accordance
with guidelines developed by the Admin-
istrator of the Environmental Protec-
tion Agency (EPA) in conjunction with
the Secretary of the Army. Furthermore,
the Administrator can prohibit or restrict
the use of any defined area as a disposal
site whenever he determines, after notice
and opportunity for public hearings, that
the discharge of such materials into such
areas will have an unacceptable adverse
effect on municipal water supplies, shell
fish beds and fishery areas, wildlife or
recreational areas.
(8) Section 103 of the Marine Protec-
tion, Research and Sanctuaries Act of
1972 (PL 92-532, 86 Stat. 1052, 33 U.S.C.
1413) authorizes the Secretary of the
Army to issue permits, after notice and
opportunity for public hearings, for the
transportation of dredged material for
the purpose of dumping it in ocean wa-
ters. However, similar to the EPA Ad-
ministrator's limiting authority cited in
paragraph (b) (7) of this section, the
Administrator can prevent the issuance
of a permit under this authority if he
finds that the dumping of the material
will result in an unacceptable adverse
impact on municipal water supplies,
31323
shellfish beds, wildlife, fisheries or rec-
reational areas.
(9) The New York Harbor Act of
June 29, 1888, as amended (33 U.S.C. 441
et seq.) provides for the issuance of per-
mits by the Supervisors of the New York,
Baltimore, and Hampton Roads Harbors
for the transportation upon and/or dis-
charge in those harbors of a variety of
materials including dredgings, sludge
and acid. The District Engineers of New
York, Baltimore and Norfolk have been
designated the Supervisors of these har-
bors, respectively. However, section 511
(b) of the Federal Water Pollution Con-
trol Act (PL 92-500, 86 Stat. 816) pro-
vides that the discharge of these mate-
rials into navigable waters shall be regu-
lated pursuant to that Act and not the
New York Harbor Act except as to the
effect on navigation and anchorage. In
addition, section 106 (a) of the Marine
Protection, Research and Sanctuaries
Act Of 1972 (PL 92-532, 86 Stat. 1052)
provides that all permits for discharges
In ocean waters shall only be issued in
accordance with the Act after April 23,
1973. Therefore, the supervisors of these
three harbors will no longer issue permits
under the authority of the New York
Harbor Act, as amended, for transporta-
tion and/or discharge 01' these materials.
(c) Related Legislation. (1) Section
401 of the Federal Water Pollution Con-
trol Act (PL 92-500; 86 Stat. 816, 33
U.S.C. 1411) requires any applicant for
a Federal license or permit to conduct
any activity which may result in a dis-
charge into navigable waters to obtain
a certification from the State in which
the discharge originates or will originate,
or, if appropriate, from the interstats
water pollution control agency having
jurisdiction over the navigable waters at
the point where the discharge originates
or will originate, that the discharge will
comply with the applicable effluent limi-
tations and water quality standards. A
certification obtained for the construc-
tion of any facility must also pertaip to
the subsequent operation of the facility.
(2) Section 307(c)(3) of the Coastal
Zone Management Act of 1972 (PL 92-
583, 86 Stat. 1280, 16 U.S.C. 1456(c)(3))
requires any applicant for a Federal li-
cense or permit to conduct an activity
affecting land or water uses in the State's
coastal zone to furnish a certification
that the proposed activity will comply
with the State's coastal zone manage-
ment program. Generally, no permit will
be issued until the State has concurred
with the applicant's certification. This
provision becomes effective upon approv- '
al by the Secretary of Commerce of the
State's coastal zone management pro-
gram.
•(3) Section 302 of the Marine Pro-
tection, Research, and Sanctuaries Act
of 1972 (Pub. L. 92-532, 86 Stat. 1052, 16
U.S.C. 1432) authorizes the Secretary of
Commerce, after consultation with other
interested Federal agencies and with the
approval of the President, to designate
as marine sanctuaries those areas of the
ocean waters or of the Great Lakes and
their connecting waters or of other
coastal waters which he determines nec-
essary for ,the purpose of preserving pr
FEDERAL REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
31324
RULES AND REGULATIONS
restoring such areas for their conser-
vation, recreational, ecological, or es-
thetic values. After designating such an
area, the Secretary of Commerce shall Is-
sue regulations to control any activities
within the area. Activities in the sanc-
tuary authorized under other authorities
are valid only if the Secretary of Com-
merce cei'tiftes that the activities are
consistent with the purposes of Title
III of the Act and can be carried out
within the regulations for the sanctuary.
(4) The National Environmental Pol-
icy Act of 1969 (42 U.S.C. 4321-4347) de-
clares the national policy to encourage
a productive and enjoyable harmony be-
tween man and his environment. Section
102 of that Act directs that "to the fullest
extent possible: (1) the policies, regula-
tions, and public laws of the United
States shall be interpreted and adminis-
tered in accordance with the policies set
forth in this Act, and (2) all agencies of
the Federal Government shall * * * in-
sure that presently unquantified envi-
ronmental amenities and values may be
given appropriate consideration in de-
cision making along with economic and
technical considerations * * *." See also
paragraph (1X1) of this section on en-
vironmental statements.
(5) The Pish and Wildlife Act of 1956
(16 U.S.C. 742a, et sea.), the Migratory
Marine Game-Fish Act (16 U.S.C. 760c-
760g) and the Pish and Wildlife Coor-
dination Act (16 U.S.C. 661-666C) and
other acts express the concern of Con-
gress with the quality of the aquatic en-
vironment as it affects the conservation,
improvement and enjoyment of fish and
wildlife resources. Reorganization Plan
No. 4 of 1970 transferred certain, func-
tions, including certain fish and wildlife-
water resources coordination responsi-
bilities, from the Secretary of the In-
terior to the Secretary of Commerce. Un-
der the Pish and Wildlife Coordination
Act and Reorganization Plan No. 4, any
Federal Agency which proposes to con-
trol or modify any body of water must
first consult with the United States Fish
and Wildlife Service, the National Ma-
rine Fisheries Service, as appropriate,
and with the head of the appropriate
State agency exercising administration
over the wildlife resources of the affected
State.
(6) The Federal Power Act of 1920
(41 Stat. 1063; 16 U.S.C. 791a et seq<),
as amended, authorizes the Federal Pow-
er Commission (FPC) to issue licenses
for the construction, operation and
maintaining of dams, water conduits,
reservoirs, power houses, transmission
lines, and other physical structures of a
power project. However, where such
structures will affect the navigable ca-
pacity of any navigable waters of the
United States (as denned in 16 U.S.C.
796), the plans for the dam or other
physical structures affecting navigation
must be approved by the Chief of Engi-
neers and the Secretary of the Army. In
such cases, the interests of navigation
should normally be protected by a recom-
mendation to the FPC for the inclusion
of appropriate provisions in the FPC li-
cense rather than the issuance of a sep-
arate Department of the Army permit
under 33 U.S.C. 401 et seq. As to any
other activities in navigable waters not
constituting construction, operation and
maintenance of physical structures li-
censed by the FPC under the Federal
Power Act of 1920, as amended, the
provisions of 33 U.S.C. 401 et seq. re-
main fully applicable. In all cases in-
volving the discharge of dredged or fill
material into navigable waters or trie
transportation of dredged material for
the purpose of dumping in ocean waters,
Department of the Army permits under
section 404 of the Federal Water Pollu-
tion Control Act, or under section 103
of the Marine Protection, Research and
Sanctuaries Act of 1972 will be required.
(7) The National Historic Preserva-
tion Act of 1966 (80 Stat. 915, 16 U.S.C.
470) created the Advisory Council on
Historic Preservation to advise the Pres-
ident and Congress on matters involving
historic preservation. In performing its
function the Council is authorized to re-
view and comment upon activities li-
censed by the Federal Government which
will have an effect upon properties listed
in the National Register of Historic
Places.
(8) The Interstate Land Sales Full
Disclosure Act (15 U.S.C. 1701 et seq.)
.prohibits any developer or agent from
selling or leasing any lot in a. subdivision
unless the purchaser is furnished in ad-
vance a printed property report including
information which the Secretary of
Housing and Urban Development may,
by rules or regulations, require for the
protection of purchasers. In the event the
lot in question is in a wetlands area, the
report is required by Housing and Urban
Development regulation to state that no
permit has been granted by the Corps
of Engineers for the development under
Section 10 of the River Harbor Act of
1899.
(9) The Water Resources Planning
Act (42 U.S.C. 1962 et seq.) provides for
the possible establishment upon request
of the Water Resources Council or a
State of river basin water and related
land resources commissions. Each such
commission shall coordinate Federal,
State, interstate, local and nongovern-
mental plans for the development of
water and related land resources in its
area, river basin, or group of river basins.
In the event the proposed Corps of Engi-
neers permits -to non-governmental de-
velopers or other agencies under section
10 of the River and Harbor Act of 1899
and section 404 of the Federal Water Pol-
lution Control Act may affect the plans
of such river basin commissions, the per-
mits will be coordinated with the appro-
priate concerned river basin commissions.
The same is true of Corps of Engineers
authorizations to private persons or cor-
porations to improve navigable rivers at
their own expense under section 1 of the
River and Harbor Act of 1902.
(d) Definitions. For the purpose of is-
suing or denying authorizations -under
this regulation.
(1) "Navigable waters of the United
States." The term, "navigable waters of
the United States," is administratively
defined to mean waters that have been
used in the past, are now used, or are
susceptible to use as a means to transport
interstate commerce landward to their
ordinary high water mark and up to the
head of navigation as determined by the
Chief of Engineers, and also waters that
are subject to the ebb and flow of the
tide shoreward to their mean high water
mark (mean higher high water mark on
the Pacific Coast). See 33 CFR 209.260
(ER 1165-2-302) for a more definitive
explanation of this term,
(2) "Navigable waters", (i) The term,
"navigable waters," as used herein for
purposes of Section 404 of the Federal
Water Pollution, Control Act, is adminis-
tratively defined to mean waters of the
United States including the territorial
seas with respect to the disposal of fill
material and excluding the territorial
seas with respect to the disposal of
dredged material and shall include the
following waters:
(a) Coastal waters that are navigable
waters of the United States subject to
the ebb and flow of the tide, shoreward
to their mean high water mark (mean
higher high water mark on the Pacific
coast);
(&) All coastal wetlands, mudflats,
swamps, and similar areas that are con-
tiguous or adjacent to other navigable
waters. "Coastal wetlands" includes
marshes and shallows and means those
areas periodically inundated by saline or
brackish waters and that are normally
characterized by the prevalence of salt
or brackish water vegetation capable of
growth and reproduction;
(c) Rivers, lakes, streams, and artifi-
cial water bodies that are navigable wat-
ers of the United States up to their head-
waters and landward to their ordinary
high water mark;.
(d) AH artificially created channels
and canals used for recreational or other
navigational purposes that are connected
to other navigable waters, landward to
their ordinary high water mark;
(e) All tributaries of navigable waters
of the United States up to their head-
waters and landward to iheir ordinary
high water mark;
(/) Interstate waters landward to their
ordinary high water mark and up to their
headwaters;
(jr) Intrastate lakes, rivers and
streams landward to their ordinary high
water mark and up to their headwaters
that are utilized:
(2) By interstate travelers for water-
related recreational purposes;
(2) For the removal of fish that are
sold in interstate commerce;
(3) For industrial purposes by indus-
tries in interstate commerce; or
(4) In the production of agricultural
commodities sold or transported in in-
terstate commerce;
(ft) Freshwater wetlands including
marshes, shallows, swamps and, similar
areas that are contiguous or adjacent to
other navigable waters and that support
freshwater vegetation. "Freshwater wet-
lands" means those areas that are pe-
riodically inundated and that are
normally characterized by the prevalence
of vegetation that requires saturated soil
FEDERAL REGISTER, VOL 40, NO. 144—FRIDAY, JULY 25, 1975
-------
conditions for growth and reproduction;
and
(i) Those other waters which the Dis-
trict Engineer determines necessitate
regulation for the protection of water
quality as expressed in the guidelines (40
CFR 230). For example, in the case of in-
termittent rivers, streams, tributaries,
and perched wetlands that are not con-
tiguous or adjacent to navigable waters
identified in paragraphs (a)-(ft), a deci-
sion on jurisdiction shall be made by the
District Engineer.
(ii) The ~ following additional terms
are defined as follows:
(a) "Ordinary high water mark" with
respect to inland fresh water means the
line on the shore established by analysis
of all daily high waters. It is estab-
lished as that point on the shore that is
inundated 25% of the time and is de-
rived by a flow-duration curve for the
particular water body that is based on
-available water stage data. It may also
be estimated by erosion or easily recog-
nized characteristics such as shelving,
change in the character of the soil,
destruction of terrestrial vegetation or its
inability to grow, the presence of litter
and debris, or other appropriate means
that consider the characteristics of the
surrounding area;
(b) "Mean high water mark" with re-
spect to ocean and coastal waters means
the line on the shore established by the
average of all high tides (all higher high
tides on the Pacific Coast). It is estab-
lished by. survey based on available tidal
data (preferably averaged over a period
of 18.6 years because of the variations in .
tide). In the absence of such data, less
- precise methods to determine the mean
high water mark may be used, such as
physical markings or comparison of the
area in question with an area having
similar physical characteristics for which
tidal data are already available;
(c) "Lakes" means natural bodies of
water greater than five acres in surface
area and all bodies of standing water
created by the impounding of navigable
waters identified in paragraphs (a)-(h);
above. Stock watering ponds and settling
basins that are not created by such im-
poundments are not included;
"Primary tributaries" means the
main stems of tributaries directly con-
necting to navigable waters of .the
United States up to their headwaters
and does not include any additional
tributaries extending off of the main
stems of these tributaries.
(3) "Ocean waters". The term "ocean
waters," as defined in the Marine Pro-
tection, Research, and Sanctuaries Act
of 1872 (P.L. 92-532, 86 Stat. 1052),
means those waters of the open seas lying
seaward of the base line from which the
territorial sea is measured, as provided
RULES AND REGULATIONS
for in the Convention on the Territorial
Sea and the Contiguous Zone (15 UST
1606; TIAS5639).
(4) "Dredged material". The term
"dredged material" means material that
is excavated or dredged from navigable
waters. The term does not include mate-
rial resulting from normal farming, sil-
vaculture, and ranching activities, such
as plowing, cultivating, seeding, and
harvesting, for production of food, fiber,
and forest products.
(5) "Discharge of dredged material".
The term "discharge of dredged mate-
rial" means any addition of dredged
material, in excess of one cubic yard
when used in a single or incidental opera-
tion, into navigable waters. The term in-
cludes, without limitation, the addition
of dredged material to a specified dis-
posal site located in navigable waters and
the runoff or overflow from a contained
land or water disposal area. Discharges
of pollutants into navigable waters re-
sulting from the onshore subsequent
processing of dredged material that is
extracted for any commercial use (other
than fill) are not included within this
term and are subject to section 402 of the
Federal Water Pollution Control Act even
though the extraction of such material
may require a permit from the Corps
of Engineers under section 10 of the
River and Harbor Act of 1899.
(6) "Fill material." The term "fill
material" means any pollutant used to
create fill in the traditional sense of re-
placing an aquatic area with dry land or
of changing the bottom elevation of a
water body for any purpose. "Fill mate-
rial" does not include the following:
(i) Material resulting from normal
farming, silvaculture, and ranching
activities, such as plowing, cultivating,
seeding, and harvesting, for the produc-
tion of food, fiber, and forest products;
(ii) Material placed for the purpose of
maintenance, including emergency re-
construction of recently damaged parts
of currently serviceable structures such
as dikes, dams, levees, groins, riprap,
breakwaters, causeways, and bridge
abutments or approaches, and trans-
portation structures.
(iii) Additions to these categories of
activities that are not "fill" will be con-
sidered periodically and these regulations
amended accordingly.
(7) "Discharge of fill material." The
term "discharge of fill material" means
the addition of fill material into naviga-
ble waters for the purpose of creating
fastlands, elevations of land beneath
navigable waters, or for impoundments
of water. The term generally includes,
without limitation, the following activ-
ities: placement of fill,that is necessary
to the construction of any structure in a
navigable water; the building of any
structure or impoundment requiring
rock, sand, dirt, or other pollutants for
its construction; site-development fills
for recreational, industrial, commercial,
residential, and other uses; causeways or
road fills; dams and dikes; artificial
islands, property protection and/or rec-
lamation devices such as riprap, groins,
seawalls, breakwalls, and bulkheads and
31325
fills; beach nourishment; levees; sanitary
landfills; fill for structures such as sew-
age treatment facilities, intake and out-
fall pipes associated with power plants,
and subaqueous utility lines; and arti-
ficial reefs.
(8) "Person". The term "person"
means any individual, corporation, part-
nership, association, State, municipality,
commission, or political subdivision of a,
State, any interstate body, or any agency
or instrumentality of the Federal Gov-
ernment, other than the Corps of Engi-
neers (see 33 CFR 209.145 for procedures
for Corps projects).
(9) "Coastal gone." The term "coastal
zone" means the coastal waters and ad-
jacent shorelands designated by a State
as being included in its approved coastal
zone management program under the
Coastal Zone Management Act of 1972.
(e) Activities Requiring Authorisa-
tions. (1) Structures or work in naviga-
ble waters of the United States. Depart-
ment of the Army authorizations are re-
quired under the River and Harbor Act
of 1899 (See paragraph (b) of this sec-
tion) for all structures or work in navi-
gable waters of the United States except
for bridges and causeways (see Appendix
A), the placement of aids to navigation
by the U.S. Coast Guard, structures con-
structed in artificial canals within
principally residential developments
where the canal has been connected to a
navigable water of the United States (see
paragraph (g) (11) below), and activ-
ities that were commenced or completed
shoreward of established harbor lines
before May 27, 1970 (see 33 CFR
§ 209.150) other than those activities in-
volving the discharge of dredged or fill
material in navigable waters after Octo-
ber 18, 1972.
(i) Structures or work are in the navi-
gable waters of the United States if they
are within limits defined in 33 CFR
209.260. Structures or work outside these
limits are subject to the provisions of law
cited in paragraph (b) of this section
if those structures or work affect the
course, location, or condition of the water
body in such a manner as to significantly
impact on the navigable capacity of the
water body. A tunnel or other structure
under a navigable water of the United
States is considered to have a significant
impact on the navigable capacity of the
water body.
(ii) Structures or work licensed under
the Federal Power Act of 1920 do not re-
quire Department of the Army authori-
zations under the River and Harbor Act
of 1899 (see paragraphs (b) and (c) of
this section); provided, however, that
any part of such structures or work that
involves the discharge of dredged or fill
material into navigable waters or the
transportation of dredged material for
the purpose of dumping it into ocean wa-
ters will require Department of the Army
authorization under Section 404 of the
Federal Water Pollution Control Act and
Section 103 of the Marine Protection,
Research, and Sanctuaries Act, as
appropriate.
(2) Discharges of dredged material or
of fill material into navigable waters, (i)
FEDERAL REGISTER, VOL 40, NO. 144—FRIDAY, JULY 25, 1975
-------
31326
RULES AND REGULATIONS
Except as provided in subparagraphs (ii)
and
-------
RULES AND REGULATIONS
31327
whether to issue a permit will be based
on an evaluation of the probable impact
of the proposed structure or work and
its intended use on the public interest.
Evaluation of the probable impact that
the proposed structure or work may have
on the public interest requires a careful
weighing of all those factors that become
relevant in each particular case. The
benefit that reasonably may be expected
to accrue from the proposal must be
balanced against its reasonably foresee-
able detriments. The decision whether to
authorize a proposal and, if authorized,
the conditions under which it will be al-
lowed to occur, are therefore determined
by the outcome of the general balancing
process (e.g., see § 209.400, Guidelines for
Assessment of Economic, Social and
Environmental Effects of Civil Works
Projects). That decision should reflect
the national concern for both protection
and utilization of important resources.
All factors that may be relevant to the
proposal must be considered; among
those factors are conservation, econom-
ics, aesthetics, general environmental
concerns, historic values, fish and wild-
life values, flood-damage prevention,
land-use classifications, navigation, rec-
reation, water supply, water quality, and,
in general, the needs and welfare of the
people. No permit will be granted unless
its issuance is found to be in the public
interest.
(2) The following general criteria will
be considered in the evaluation of every
application:
(i) The relative extent of the public
and private need for the proposed struc-
ture or work.
(ii) The desirability of using appropri-
ate alternative locations and methods to
accomplish the objective of the proposed
structure or work.
(iii) The extent and permanence of
the beneficial and/or detrimental ef-
fects that the proposed structure, or
work may have on the public and pri-
vate uses to which the area is suited.
(iv) The probable impact of each pro-
posal in relation to the cumulative ef-
fect created by other existing and
anticipated structures or work in the
general area.
(3) Permits will not be issued where
certification or authorization of the
proposed work is required by Federal,
State, and/or local law and that certifi-
cation or authorization has been denied.
Initial processing of an application for
a Department of the Army permit will
proceed until definitive action has been
taken by the responsible State agency
to grant or deny the required certifica-
tion and/or authorization. Where the
required State certification and/or au-
thorization has been denied and proce-
dures for reconsideration exist, reason-
able time not to exceed 90 days will be
allowed for the applicant to attempt to
resolve the problem and/or obtain re-
consideration of the denial. If the State
denial of authorization cannot be thus
resolved, the application will be denied
in accordance with paragraph (p) of
this section.
(i) Where officially adopted State,
regional, or local land-use classifica-
tions, determinations, or policies are ap-
plicable to the land or water areas
under consideration, they shall be pre-
sumed to reflect local factors of the pub-
lic interest and shall be considered in
addition with the other national factors
of the public interest identified in para-
graph (fXI), above.
(ii) A proposed activity in a naviga-
ble water may result in conflicting com-
ments from several agencies within the
same State. While many States have
designated a single State agency or in-
dividual to provide a single and coordi-
nated State position regarding pending
permit applications, where a State has
not so designated a single source, Dis-
trict Engineers will elicit from the Gov-
ernor an expression of his views and de-
sires concerning the application (see
also paragraph (j) (3), below) or, in the
alternative, an expression from the Gov-
ernor as to which State agency repre-
sents the official State position in this
particular case. Even if official certifica-
tion and/or authorization is not required
by State or Federal law, but a State,
regional, or local agency having juris-
diction or interest over the particular
activity comments on the application,
due consideration shall be given to those
official views as a reflection of local fac-
tors of the public interest.
(iii) If a favorable State determina-
tion is received, the District Engineer
will process the application to a con-
clusion in accordance with the policies
and procedures of this regulation. In the
absence of overriding national factors of
the public interest that may be revealed
during the subsequent processing of the
permit application, a permit will gener-
ally be issued following receipt of a
favorable State determination provided
the concerns, policies, goals, and re-
quirements as expressed in paragraphs
(f) (1) and (2), above, the guidelines
(40 CFB 230), and the following statutes
have been followed and considered: the
National Environmental Policy Act; the
Fish and Wildlife Coordination Act; the
Historical and Archaeological Preserva-
tion Act; the National Historic Preser-
vation Act; the Endangered Species Act;
the Coastal Zone Management Act; the
Marine Protection, Research, and Sanc-
tuaries Act of 1972; and the Federal
Water Pollution Control Act (see para-
graph c, above).
(iv) If the responsible State agency
fails to take definitive action to grant or
deny required authorizations or to fur-
nish comments as provided in subpara-
graph (ii) above within six months of
the issuance of the public notice, the
District Engineer shall process the ap-
plication to a conclusion.
(v) The District Engineer may, in
those States with ongoing State permit
programs for work or structures in navi-
gable waters of the United States or the
discharge of dredged or fill material in
navigable waters, enter into an agree-
ment with the States to jointly process
and evaluate Department of the Army
and State permit applications. This may
include the issuance of joint public
notices; the conduct of joint public hear-
ings, if held; and the joint review and
analysis of information and comments
developed in response to the public
notice, public hearing, the environmental
assessment and the environmental im-
pact statement (if necessary), the Fish
and Wildlife Coordination Act, the His-
torical and Archaeological Preservation
Act, the National Historic Preservation
Act, the Endangered Species Act, the
Coastal Zone Management Act, the
Marine Protection, Research, and Sanc-
tuaries Act of 1972, and the Federal
Water Pollution Control Act. In such
cases, applications for Department of
the Army permits may be processed con-
currently with the processing of the
State permit to an independent conclu-
sion and decision by the District En-
gineer and appropriate State agency.
(4) The District Engineer shall con-
sider the recommendations of the appro-
priate Regional Director of the Bureau
of Sport Fisheries and Wildlife, the Re-
gional Director of the National Marine
Fisheries Service of the National Oceanic
and Atmospheric Administration, the
Regional Administrator of the Environ-
mental Protection Agencv, the local rep-
resentative of the Soil Conservation
Service of the Department of Agricul-
ture, and the head of appropriate State
agencies in administering the policies
and procedures of the regulation.
(g) Policies on particular factors of
consideration. In applying the general
policies cited above to the evaluation of
a permit application, Corps of Engineers
officials will also consider the following
policies when they are applicable to the
specific application:
(1) Interference with adjacent prop-
erties or water resource projects. Au-
thorization of work or structures by the
Department of the Army does not convey
a property right, nor authorize' any in-
jury to property or invasion of other
rights.
(i) (a) Because a landowner has the
general right to protect his property
from erosion, applications to erect pro-
tective structures will usually receive
favorable consideration. However, if the
protective structure may cause dangjge
to the property of others, the District
Engineer will so advise the applicant
and inform him of possible alternative
methods of protecting his property. Such
advice will be given in terms of general
guidance only so as not to compete with
private engineering firms nor require un-
due use of government resources. A sig-
nificant probability of resulting damage
to nearby properties can be a basis for
denial of an application.
(o) A landowner's general right of ac-
cess to navigable waters is subject to the
similar rights of access held by nearby
landowners and to the general public's
right of navigation on the water surface.
Proposals which create undue interfer-
ence with access to, or use of, navigable
waters will generally not receive favor-
able consideration.
(ii) (a) Where it is found that the wort
for which a permit Is desired may Inter-
fere with a proposed civil works project
FEDERAL REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
31328
RULES AND REGULATIONS
of the Corps of Engineers, the applicant
and the party or parties responsible for
fulfillment of the requirements of local
cooperation should be apprised in writ-
Ing of the fact and of the possibility that
a civil works project which may be con-
structed in the vicinity of the proposed
work might necessitate its removal or
reconstruction. They should also be in-
.formed that the United States will in no
case be liable for any damage or injury
to the structures or work authorized
which may be caused by or result from
future operations undertaken by the
Government for the conservation or im-
provement of navigation, or for other
purposes, and no claims or right to com-
pensation will accrue from any such
damage.
(b) Proposed activities which are in
the area of a civil works project which
exists or is under construction will be
evaluated to insure that they are com-
patible with the purposes of the project.
(2) Non-Federal dredging for navi-
gation, (i) The benefits which an au-
thorized Federal navigation project is in-
tended to produce will often require
xsimilar and related operations by non-
'Federal agencies (e.g., dredging an access
channel to dock and berthing facilities
or deepening such a channel to cor-
respond to the Federal project depth).
These non-Federal activities will be con-
sidered by Corps of Engineers officials in
planning the construction and mainte-
nance of Federal navigation projects and,
to the maximum practical extent, will
be coordinated with interested Federal,
State, regional and local agencies and
the general public simultaneously with
the associated Federal projects. Non-
federal activities which are not so co-
ordinated will be individually evaluated
in accordance with paragraph (f) of this
section. In evaluating the public interest
in connection with applications for per-
mits for such coordinated operations,
equal treatment will, therefore, be ac-
corded to the fullest extent possible to
both Federal and non-Federal opera-
tions. Furthermore, permits for non-
Federal dredging operations will contain
conditions requiring the permittee to
comply with the same practices or re-
quirements utilized In connection with
related Federal dredging operations with
respect to such matters as turbidity, wa-
ter quality, containment of material, na-
ture and location of approved spoil
disposal areas (non-Federal use of Fed-
eral contained, disposal areas will be In
accordance with laws authorizing such
areas and regulations governing their
use), extent and period of dredging, and
other factors relating to protection of
environmental and ecological values.
(See also paragraph (g) (17) of this
section.)
(ii) A permit for the dredging of a
channel, slip, or other such project for
navigation will also authorize the peri-
odic maintenance dredging of the proj-
ect. Authority for maintenance dredging
will be subject to revalidation at regular
Intervals to be specified In the permit.
Revalidation will be in accordance with
the procedures prescribed In paragraph
(n) (5) of this section. The permit, how-
ever, will require the permittee to give
advance notice to the District Engineer
each time maintenance dredging Is to be
performed.
(3) Effect on wetlands. (1) Wetlands
are those land and water areas subject
to regular inundation by tidal, riverine,
or lacustrine flowage. Generally included
are inland and coastal shallows, marshes,
mudflats, estuaries, swamps, and similar
areas in coastal and Inland navigable
waters. Many such areas serve important
purposes relating to fish and wildlife,
recreation, and other elements of the
general public Interest. As environ-
mentally vital areas, they constitute a
productive and valuable public resource,
the unnecessary alteration or destruc-
tion of which should be discouraged as
contrary to the public interest.
(ii) Wetlands considered to perform
functions important to the public inter-
est include:
(a) Wetlands which serve important
natural biological functions, including
food chain production, general habitat,
and nesting, spawning, rearing and rest-
ing sites for aquatic or land species;
(b) Wetlands set aside for study of the
aquatic environment or as sanctuaries
or refuges;
(c) Wetlands contiguous to areas
listed in paragraph (g) (3) (ii) (a) and
(b) of this section, the destruction or
alteration of which would affect detri-
mentally the natural drainage charac-
teristics, sedimentation patterns, salin-
ity distribution, flushing characteristics,
current patterns, or other environmental
characteristics of the above areas;
(
-------
RULES AND REGULATIONS
31329
Federal Water Pollution Control Act will
be considered conclusive with respect to
water quality considerations unless the
Regional Administrator, Environmental
Protection Agency (KPA), advises of
other water quality aspects to be taken
into consideration. If the certification
provided is to the effect that no effluent
limitation and water quality standards
have been established as applicable to the
proposed activity, or if certification is
not required for the proposed activity,
the advice of the Regional Administra-
tor, EPA, on water quality aspects will
be given great weight in evaluating the
permit application. Any permit issued
may be conditioned to implement water
quality protection measures.
(ii) If the Regional Administrator,
EPA, objects to the issuance of a permit
on the basis of water quality considera-
tions and the objection is not resolved
by the applicant or the District Engineer,
and the District Engineer would other-
wise issue the permit, the application will
be forwarded through channels to the
Chief of Engineers for further coordina-
tion with the Administrator, EPA, and
decision. (See also paragraphs (b) (7)
and (b) (8), above, and (g) (17) and (i)
(2) (1) of this section.)
(6) Historic, scenic, find recreational
values, (i) Applications for permits cov-
ered by this regulation may involve areas
which possess recognized historic, cul-
tural, scenic, conservation, recreational
or similar values. Pull evaluation of the
general public interest requires that due
consideration be given to the effect which
the proposed structure or activity may
have on the enhancement, preservation,
or development of such values. Recogni-
tion of those values is often reflected by
State, regional, or local land use classifi-
cations (see paragraph (f) (3) of this sec-
tion), or by similar Federal controls or
policies. In both cases, action on permit
applications should, insofar as possible,
be consistent with, and avoid adverse ef-
fect on, the values or purposes for which
those classifications, controls, or policies
were established.
(ii) Specific application of the policy
in paragraph (g) (6) (i) of this section,
applies to:
(a) Rivers named in Section 3 of the
Wild and Scenic Rivers Act (82 Stat. 906,
16 TT.S.C. 1273 et seq.), and those pro-
posed for inclusion as provided by sec-
tions 4 and 5 of the Act, or by later legis-
lation.
(b) Historic, cultural, or archeological
sites or practices as provided in the Na-
tional Historic Preservation Act of 1966
(83 Stat. 852, 42 U.S.C. 4321 et seq.) (see
also Executive Order 11593, May 13,1971,
and Statutes there cited). Particular at-
tention should be directed toward any
district, site, building, structure, or object
listed in the National Register of Historic
Places. Comments regarding such under-
takings shall be sought and considered as
provided by paragraph (i) (2.) (iii) of this
section.
(c) Sites included in the National Reg-
istry of Natural Landmarks which are
published periodically in the FEDERAL
REGISTER.
(
-------
31330
the Attorney General and the Solicitor of
the Department of the Interior Is re-
quired before final action is taken. The
District Engineer will submit a descrip-
tion of the proposed work and a copy of
the plans to the Solicitor, Department of
the Interior, Washington, D.C. 20240, and
request his comments concerning the
effects of the proposed work on the outer
continental rights of the United States.
These comments will be included in the
file of the- application. After completion
of standard processing procedures, the
file will be forwarded to the Chief of
Engineers. The decision in the applica-
tion will be made by the Secretary of the
Army after coordination with the Attor-
ney General.
(11) Canals and other artificial water-
ways connected to navigable waters.
(i) A canal or similar artificial waterway
is subject to the regulatory authorities
discussed in paragraph (b) (2) of this sec-
tion if it constitutes a navigable water of
the United States, or if it is connected to
navigable waters of the United States in
a manner which affects their course, con-
dition, or capacity. In all cases the con-
nection to navigable waters of the
United States requires a permit. Where
the canal itself constitutes a navigable
water of the United States, evaluation
of the permit application and further ex-
ercise of regulatory authority will be in
accordance with the standard procedures
of this regulation. For all other canals
the exercise of regulatory authority is
restricted to those activities which affect
the course, condition, or capacity of the
navigable waters of the United States.
Examples of the latter may include the
length and depth of the canal; the cur-
rents circulation, quality and turbidity
of its waters, especially as they affect
fish and wildlife values; and modifica-
tions or extensions of its configuration.
(ii) The proponent of canal wort
should submit his application for a per-
mit, including a proposed plan of the
entire development, and the location and
description of anticipated docks, piers
and other similar structures which will
be placed in the canal, to the District En-
gineer before commencing any form of
work. If the connection to navigable wa-
ters of the United States has already been
made without a permit, the District En-
gineer will proceed in accordance with
paragraph (g)U2)(i) of this section.
Where a connection has not yet occurred,
but canal construction is planned or has
already begun, the District Engineer will,
In writing, advise the proponent of the
need for a permit to connect the canals
to navigable waters of the United States.
He will also ask the proponent if he in-
tends to make such a connection and will
request the immediate submission of the^
plans and permit application if it is so in-
tended. The District Engineer will also
advise the proponent that any work is
done at the risk that, if a permit is re-
quired, it may not be issued, and that the
existence of partially-completed excava-
tion work will not be allowed to weigh
favorably in evaluation of the permit
application.
RULES AND REGULATIONS
(12) Unauthorized activities. The fol-
lowing procedures will be followed with
respect to activities which are per-
formed without proper authorization.
(i) When the District Engineer be-
comes aware of any unauthorized activ-
ity which is still in progress, he shall im-
mediately issue a cease and desist order
to all persons responsible for and/or in-
volved in the performance of the activity.
In appropriate cases, the District En-
gineer may also order interim protective
measures to be taken in order to
protect the public interest. If there
is noncompliance with this cease and
desist order, / the District Engineer
shall forward a factual report immedi-
ately to the local U.S. Attorney with a
request that a temporary restraining or-
der and/or preliminary injunction be
obtained against the responsible persons.
(ii) In all cases, the District Engineer
shall commence an immediate investiga-
tion to ascertain the facts surrounding
the unauthorized activity. In making
this investigation, the District Engineer
shall solicit the views of appropriate
Federal, State and local agencies, and
shall request the persons involved In the
unauthorized activity to provide appro-
priate information on this activity which .
will assist him in evaluating the activity
and recommending the course of action
to be taken. The District Engineer shall
evaluate the information and views de-
veloped during this investigation in con-
junction with the factors and criteria
cited in paragraph (f) of this section and
shall formulate recommendations as to
the appropriate administrative and/or
legal action to be taken, subject to the
following:
(a) Except where the activity was per-
formed in nontidal waters prior to an
administrative, judicial or legislative de-
termination that the water is a naviga-
ble water of the United States, the Dis-
trict Engineer is not authorized to proc-
ess or accept for processing any permit
application received.
a) The District Engineer shall in all
cases other than those covered by para-
graph (g) (12) (ii) (a) (2) of this section
prepare and forward a report to the
Chief of Engineers, ATTN: DAEN-GCK,
which shall contain an analysis of the
data and information obtained during
this investigation and recommend-appro-
priate civil and criminal action. In those
cases where the analysis of the facts
developed during his investigation,
when made in conjunction with the
factors and criteria in paragraph (f)
of this section leads to the preliminary
conclusion that removal of the unauth-
orized activity is in the public interest,
the District Engineer shall also recom-
mend restoration of the area to its
original condition.
(2) In those cases to which the provi-
sions of paragraph (m) (3), below, apply,
the District Engineer may refer the mat-
ter directly to the local United States
Attorney for appropriate legal action.
(&) If criminal and/or civil action is
Instituted against the responsible per-
son, the District Engineer shall not ac-
cept for processing any application until
final disposition of all judicial proceed-
ings, Including the payment of all pre-
scribed penalties and fines and/or the
completion of all work ordered by the
court. Thereafter, the District Engineer
may accept an application for a permit;
Provided, that with respect to any judi-
cial order requiring partial or total res-
toration of an area, .the District Engi-
neer, If so ordered by the court, shall
supervise this restoration effort and may
allow the responsible persons, to apply
for a permit for only that portion of the
unauthorized activity for which restora-
tion has not been so ordered.
(c) In those cases where the District
Engineer determines that the unauthor-
ized activity was performed in nontidal
waters, prior to an administrative, judi-
cial or legislative determination that the
water is a navigable water of the United
States, the District Engineer shall in-
struct the responsible persons to imme-
diately file for a permit, unless he deter-
mines on the basis of all the facts and
circumstances that Immediate legal ac-
tion is warranted. In such cases, the Dis-
trict Engineer will follow the procedures
of paragraph (g) (12) (ii) (a) and (6) of
this section.
(iii) Processing and evaluation of ap-
plications for after-the-fact authoriza-
tions for activities undertaken without
the required Department of the Army
authorizations will in all other respects
follow the standard procedures of this
regulation. Thus, authorizations may
still be denied in accordance with the
policies and procedures of this regula-
tion. '
(iv) Where after-the-fact authoriza-
tion in accordance with this paragraph
is determined to be in the public inter-
est, the standard permit form for the
activity will be used, omitting inappro-
priate conditions, and including what-
ever special conditions the District
Engineer may deem appropriate to miti-
gate or prevent undesirable effects
which have occurred or might occur.
(v) Where after-the-fact authoriza-
tion is not determined to be in the public
interest, the notification of the denial
of the permit will prescribe any correc-
tive actions to be taken, in connection
with the work already accomplished and
establish a reasonable period of time for
the applicant to complete such actions.
The District Engineer, after denial of
the permit, will again consider whether
civil or criminal action is appropriate.
(vi) If the applicant declines to ae-
cept the proposed permit conditions, or
fails to take corrective action prescribed
In the notification of denial, or if the
District Engineer determines, after de-
nying the permit application, that legal
action is appropriate, the matter will
be referred to the Chief of Engineers,
ATTN: DAEN-GCK, with recommenda-
tions for appropriate action.
(vii). Applications will generally not
be required for work or structures com-
pleted before 18 December 1968, nor
where potential applicants had received
expressions of disclaimer prior to the
date of this regulation; provided, how-
ever, That the procedures of paragraph
FEDERAL REGISTER, VOL 40, NO. 144—FRIDAY, JULY 25, 1975
-------
RULES AND REGULATIONS
31331
(g) (12) (1) of this section shall apply to
all work or structures which were com-
menced or completed on or after 18 De-
cember 1968, and may be applied to all
specific cases, regardless of date of con-
struction or previous disclaimers, for
which the District Engineer determines
that the interests of navigation so re-
quire.
(13) Facilities at the borders of the
United States, (i) The construction,
operation, maintenance, or connection of
facilities at the borders of the United
States are subject to Executive control
and must be authorized by the President,
Secretary of State, or other delegated
official.
(a) Applications for permits for the
construction, operation, maintenance, or
connection at the borders of the United
States of facilities for the transmission
of electric energy between the United
States and a foreign country, or for the
exportation or importation of natural gas
to or from a foreign country, must be
made to the Federal Power Commission.
(See Executive Order 10485, September 3,
! 1953, 16 U.S.C. 824(a) (e), 15 U.S.C. 717b,
and 18 CFR Parts 32 and 153).
(b) Applications for the landing or
operation of submarine cables must be
made to the Federal Communications
Commission. (See Executive Order 10530,
May 10, 1954, 47 U.S.C, 34 to 39, and 47
CFR 1.767).
(c) The Secretary of State is to re-
ceive applications for permits for the
construction, connection, operation, or
maintenance, at the borders of the
United States, of: (1) pipelines, con-
veyors belts, and similar facilities for the
exportation or importation of petroleum
products, coals, minerals, or other prod-
ucts to or from a foreign country; (2)
facilities for the exportation or importa-
tion of water or sewage to or from a
foreign country; (3) monorails, aerial
cable cars, aerial tramways and similar
facilities for' the transportation of per-
sons or things, or both, to or from a
foreign country. (See Executive Order
11423, August 16, 1968).
(11) A Department of the Army permit
under Section 10 of the River and Harbor
Act of March 3, 1899 Is also required for
all of the above facilities which affect the
navigable waters of the United States,
but In each case In which a permit has
been issued as provided above, the deci-
sion whether to issue the Department of
the Army permit will be based primarily
on factors of navigation, since the basic
existence and operation of the facility
will have been examined and permitted
as provided by the Executive Orders.
Furthermore, In those cases where the
construction, maintenance, or operation
at the above facilities involves the dis-
charge of dredged or fill material in
navigable waters or the transportation of
dredged material for the purpose of
dumping it into ocean waters, appropri-
ate Department of the Army authoriza-
tions under section 404 of the Federal
Water Pollution Control Act or under
section 103 of the Marine Protection Re-
search and Sanctuaries Act of 1972 are
also required. Evaluation, of applications
for these authorizations will be in accord-
ance with paragraph (g) (17) of this sec-
tion.
(14) Power transmission lines. (1)
Permits under section 10 of the River
and Harbor Act of March 3, 1899, (33
U.S.C. 403) are required for power trans-
mission lines crossing navigable waters
of the United States unless those lines
are part of a water power project subject
to the regulatory authorities of the Fed-
eral Power Commission under the Fed-
eral Water Power Act ol 1920 (16 U.S.C.
797). If an application is received for a
permit for lines which are part of a water
power project, the applicant will be in-
structed to submit his application to the
Federal Power Commission. If the lines
are not part of a water power proj.ect, the
application will be processed in accord-
ance with the procedures prescribed in
this regulation.
(ii). The following minimum clear-
ances are required for aerial electric
power transmission lines crossing naviga-
ble waters of the United States. These
clearances are related to the clearances
over the navigable channel provided by
existing fixed bridges, or the clearances
which would be required by the U.S.
Coast Guard for new fixed bridges, in the
vicinity of the proposed power line cross-
ing. The clearances are based on the low
point of the line under conditions which
produce the greatest sag, taking into con-
sideration temperature, load, wind,
length of span, and type of supports as
outlined in the National Electrical Safety
Code.
Minimum additional
clearance (/*.)
above clearance
required for bridges
Nominal system voltage, kV:
115 and below 20
138 22
161 24
230 u 26
350 30
500 _: 35
700 42
750-765 43
(15) Seaplane operations. Structures
in navigable waters of the United States
associated with seaplane operations re-
quire Department of the Army permits,
but close coordination with the Federal
Aviation Administration (FAA), Depart-
ment of Transportation, is required on
such applications.
(i) The FAA must be notified by an
applicant whenever he proposes to estab-
lish or operate a seaplane base.' The FAA
will study the proposal and advise the
applicant, District Engineer, and other
interested parties as to the effects of the
proposal on the use of airspace. The Dis-
trict Engineer will therefore refer any
objections regarding the effect of the
proposal on the use of airspace to the
FAA, and give due consideration to their
recommendations when evaluating the
general public interest.'
(ii) If the seaplane base will serve air
carriers licensed by the Civil Aeronautics
Board, the applicant must receive an air-
port operating certificate from the FAA.
That certificate reflects determination
and conditions relating to the installa-
tion, operation, and maintenance of ade-
quate air navigation facilities and safety
equipment. Accordingly, the District En-
gineer may, in evaluating the general
public interest, consider such matters to
have been primarily evaluated by the
FAA.
(16) Foreign Trade Zones. The Foreign
Trade Zones Act (48 Stat. 998-1003, 19
U.S.C. sections 81a to 81u, as amended)
authorizes the establishment of foreign-
trade zones in or adjacent to United
States ports of entry under terms of a
grant and regulations prescribed by the
Foreign-Trade Zones Board. Pertinent
regulations are published at Title 15 of
the Code of Federal Regulations, Part
400. The Secretary of the Army is a mem-
ber of the Board, and construction of a
zone is under the supervision of the Dis-
trict Engineer. Laws governing the navi-
gable waters of the United States remain
applicable to foreign-trade zones, includ-
ing the general requirements of this reg-
ulation. Evaluation by a'District Engi-
neer of a permit application may give
recognition to the consideration by the
Board of the general economic effects of
the zone on local and foreign commerce,
general location of wharves and facili-
ties, and other factors pertinent to con-
struction, operation, and maintenance of
the zone.
(17) Discharge of dredged or fill ma-
terial in navigable waters or dumping
of dredged material. in ocean waters.
(i) Applications for permits for the dis-
charge of dredged.or fill material into
navigable waters at specific disposal sites
will be reviewed in accordance with
guidelines promulgated by the Adminis-
trator, EPA, under authority of section
404 (b) of the Federal Water Pollution
Control Act. If the EPA guidelines alone
prohibit the designation of a proposed
disposal site, the economic impact on
navigation and anchorage of the failure
to authorize the use'of the proposed dis-
posal site in navigable waters will also
be considered in evaluating whether or
not the proposed discharge is in the pub-
lic interest.
(ii) Applications for permits for the
transporting of dredged material for the
purpose of dumping it into ocean waters
will be evaluated to determine that the
proposed dumping will not unreasonably
degrade or endanger human health, wel-
fare, or amenities, or the marine envi-
ronment, ecological systems, or economic
potentialities. In making the evaluation,
Corps of Engineers officials will apply
criteria established by the Administra-
tor, EPA, under authority of section 102
(a) of the Marine Protection, Research
and Sanctuaries Act of 1972, and will
specify the dumping sites, using the rec-
ommendations of the Administrator,
pursuant to section 102 (c) of the Act, to
the extent feasible. (See 40 CFR Part
220). In evaluating the need for the
dumping as required by paragraph (f)
(2) (i) of this section, Corps of Engineers
officials will consider the potential effect
of a permit denial on navigation, eco-
nomic and Industrial development, and
foreign and domestic commerce of the
United States.
FEDERAL REGISTER, VOL. 40, NO. T44—FRIDAY, JULY 25, T97S
-------
31332
RULES AND REGULATIONS
(ill) Sites previously designated for
use as disposal sites for discharge or
dumping of dredged material will be
specified to the maximum practicable
extent in permits for the discharge or
dumping of dredged material in naviga-
ble waters or ocean waters unless re-
stricted by the Administrator, EPA, in
accordance with section 404 (c) of the
Federal Water Pollution Control Act or
section 102 (c) of the Marine Protection,
Research, and Sanctuaries Act of 1972.
(iv) Prior to actual issuance of permits
for the discharge or dumping of dredged
or fill material in navigable or ocean
waters, Corps of Engineers officials will
advise appropriate Regional Administra-
tors, EPA, of the intent to so issue per-
mits. If the Regional Administrator
advises, within fifteen days of the advice
of the intent to issue, that he objects to
the issuance of the permits, the case will
be forwarded to the Chief of Engineers in
accordance with paragraph (s), below,
for further coordination with the Admin-
istrator, EPA, and decisidn. The report
forwarding the case will contain an anal-
ysis for a determination by the Secretary
of the Army that there is no economically
feasible method or site available other
than that to which the Regional Admin-
istrator objects. (See also paragraphs
(b) C7> and (b) (8) of this section.)
(18) Activities in coastal zones and
marine sanctuaries, (i) Applications for
Department of the Army authorizations
for activities in the coastal zone's of those
States having a coastal zone manage-
ment program approved by the Sec-
retary of Commerce will be evalu-
ated with respect to compliance with
.that program. No permit will be is-
sued until the applicant has 'certified
that his proposed activity complies
with the coastal zone management
program and the appropriate State
agency has concurred with the certifica-
tion or has waived its right to do so (see
paragraph (i) (2) (ii) of this section);
however, a permit may be issued if the
Secretary of Commerce, on his own ini-
tiative or upon appeal by the applicant,
finds that the proposed activity is con-
sistent with the objectives of the Coastal
Zone Management Act of 1972 or is
otherwise necessary in the-interest of
national security.
(ii) Applications for Department of
the Army authorization for activities in
a marine sanctuary established by the
Secretary of Commerce under authority
of section 302 of the Marine Protection,
Research, and Sanctuaries Act of 1972
will be evaluated for impact on the ma-
rine sanctuary. No permit will be issued
until the applicant provides a certifica-
tion from the Secretary of Commerce
that the proposed activity is consistent
-with the purposes of Title in of the Ma-
rine Protection, Research and Sanctu-
aries Act of 1972 and can be carried out
within the regulations promulgated by
the Secretary of Commerce to control
activities within the marine sanctuary.
Authorizations so issued will contain
such special conditions as may be re-
quired by the Secretary of Commerce in
connection with his certification.
(h) Applications tor authorizations,
(1) Any person proposing to undertake
any activity requiring Department of the
Army authorization as specified in para-
graph (e) of this section, must apply for
a permit to the District Engineer in
charge of the District where the pro-
posed activity is to be performed. Appli-
cations for permits must be prepared in
accordance with instructions In the
pamphlet entitled "Applications for De-
partment of the Army Permits for Ac-
tivities in Waterways" published by the
Corps of Engineers, utilizing the pre-
scribed application form (ENQ Form
4345). The °;-m and pamphlet may be
obtained 1'run the District Engineer
having jurisdiction over the waterway in
which the proposed activity will be lo-
cated. Local variations of the application
form for purposes of facilitating coordi-
nation with State and local agencies may
be proposed by District or Division En-
gineers. These variations will be sub-
mitted for approval to DAEN-CWO-N
and for clearance by the Ofiice of Man-
agement and Budget.
(2) Generally, the application must in-
clude a complete description of the pro-
posed activity, which includes necessary
drawings, sketches or plans, the location,
purpose and intended use of the proposed
activity; scheduling of the activity; the
names and addresses of adjoining prop-
erty owners and the location and dimen-
sions of adjacent structures; and the
approvals required by other Federal,
interstate, State or local agencies for the
work, including all approvals or denials
already made.
(i) If the activity involves dredging In
navigable waters of the United States,
the application must include a descrip-
tion of the type, composition and quan^
tity of the material to be dredged, the
method of dredging, and the site and
plans for disposal of the dredged
material.
(ii) If the activity includes the dis-
charge of dredged or fill material in the
navigable waters or the transportation
of dredged material for the purpose of
dumping it in the ocean waters, the ap-
plication must include the source of the
material, a description of the type, com-
position and quantity of the material, the
method of transpbrtaton and disposal of
the material, and the location of the dis-
posal site. Certification under section 401
of the Federal Water Pollution Control
Act is required for such discharges into
navigable waters. In addition, applicants
for permits for these activities are re-
quired to pay a fee of $100 per applica-
tion if the quantity of the material to be
discharged in navigable waters or to be
dumped in ocean waters exceeds 2500
cubic yards; if the quantity of material
is 2500 cubic yards or less, the fee is $10
per application. Agencies or instrumen-
talities of Federal, State, or local govern-
ments will not be required to pay any
fee in connection with applications for
permits. This fee structure will be re-
viewed from time to time.
(iii) If the activity includes the con-
struction of a fill or pile or float-sup-
ported platform, the project description
must include specific structures to be
erected on the fill or platform.
(iv) If the activity includes the con-
struction of a structure the normal use
of which may result in a discharge of
pollutants, other than dredged or fill ma-
terial, into navigable waters or ocean
waters, the application must include
either the identification of the applica-
tion for the discharge permit assigned by
the appropriate water pollution control
agency or a copy of that application. Cer-
tification under Section 401 of the Fed-
eral Water Pollution Control Act is re-
quired for such discharges into naviga-
ble waters.
(v) If the activity will be located within
a marine sanctuary established by the
Secretary of Commerce, the application
must include a copy of the certification
from the Secretary of Commerce that the
proposed activity is consistent with the
purposes of Title III of the Marine Pro-
tection, Research and Sanctuaries Act
of 1972 and can be carried out within
the regulations promulgated by the Sec-
retary of Commerce to control activities
within the marine sanctuary.
(vi) If the activity requires the prep-
aration of an environmental impact
statement (see paragraphs (i)(l)(lv)
and (1) of this section), which neces-
sitates the development of data and in-
formation which will result in substan-
tial expense to the United States, the
District Engineer may, after obtaining
written approval from the Division Engi-
neer, charge the applicant for those ex-
traordinary expenses incurred in the de-
velopment of this information pursuant
to 31 U.S.C. 483(a). All money so col-
lected shall be paid into the Treasury of
the United States as miscellaneous re-
ceipts. In lieu of this assessment, the Dis-
trict Engineer may require reports, data,
and other information for the environ-
mental impact statement (see paragraph
(h)(3) of this section), to be compiled
by an independent third party under
contract with the applicant and fur-
nished directly to the District Engineer;
Provided, In such cases, the District En-
gineer shall specify the type of informa-
tion to be developed; And provided fur-
ther, That the information furnished by
this third party contractor may not be
used by the District Engineer to assist
in his preparation of the environmental
impact statement unless he has approved
the selection of this third party contrac-
tor after consulting with interested Fed-
eral, State, and local agencies, public
Interest groups, and members of the gen-
eral public, as he deems appropriate, to
assure objectivity in this selection. In
either case, the District Engineer should
advise the applicant in writing that there
is no assurance that favorable action will
ultimately be taken on his application.
(3) In addition to that information in-
dicated in paragraph (h) (2) of this sec-
tion, the applicant will be required to
furnish such additional information as
the District Engineer may deem neces-
sary to assist him in his evaluation of the
application. Such additional information
may include an environmental assess-
ment, including information on alter-
FEDERAl REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
RULES AND REGULATIONS
31333
nate methods and sites, as may be neces-
sary for the preparation of an environ-
mental impact statement (see paragraph
(1), below).
(4) The application must be signed by
the person who desires to undertake the
proposed activity; however, the applica-
tion may be signed by a duly authorized
agent if accompanied by a statement by
that person designating the agent and
agreeing to furnish, upon request, sup-
plemental information in support of the
application. In either case, the signature
of the applicant will be understood to be
an affirmation that he possesses the au-
thority to undertake the activity pro-
posed in his application, except where
the lands are under the control of the
Corps of Engineers, in which case the
District Engineer will coordinate the
transfer of the real estate and the permit
action. When the application is submit-
ted by an agent, the application may in-
clude the activity of more than one
owner provided the character of the ac-
tivity of each owner is similar and in the
same general area.
(i) Processing applications for per-
mits—(1) standard procedures. (1)
When an application for a permit is re-
ceived, the District Engineer shall im-
mediately assign it a number for identi-
fication, acknowledge receipt thereof,
and advise the applicant of the number
assigned to it. He shall review the ap-
plication for completeness and obtain
from the applicant any additional infor-
mation he deems necessary for further
processing.
(ii) 'When all required information
has been provided, the District Engineer
will issue a public notice as described in
paragraph (j) of this section unless spe-
cifically exempted by other provisions
of this regulation. The notice will be dis-
tributed for posting in post offices or
other appropriate public places in the
vicinity of the site of the proposed work
and will be sent to the applicant, to ap-
propriate city and county officials, to ad-
joining property owners, to appropriate
State agencies, to concerned Federal
agencies, to local, regional and national
shipping and other concerned business
and conservation organizations, and to
any other Interested parties. If in the
judgment of the District Engineer the
proposal may result in substantial pub-
lic interest, the public notice (without
drawings) may be published for five
consecutive days in the local newspaper,
and the applicant shall reimburse the
District Engineer for the costs of pub-
lication. Copies of public notices will be
sent to all parties who have specifically
requested copies of public notices, to the
U.S. Senators and Representatives for
the area where the work is to be per-
formed, the Field Representative of the
Secretary of the Interior, the Regional
Director of the Bureau of Sport Fisheries
and Wildlife, the Regional Director of
the National Park Service, the Regional
Administrator of the Environmental
Protection Agency (EPA), the Regional
Director of the National Marine Fish-
eries Service of the National Oceanic and
Atmospheric Administration (NOAA),
the head of the State agency responsible
for fish and wildlife resources, the Dis-
trict Commander, U.S. Coast Guard, and
the Office of the Chief of Engineers, At-
tention: DAEN-CWO-N.
(iii) The District Engineer shall con-
sider all comments received in response
to the public notice in his subsequent
actions on the permit application. Re-
ceipt of the comments will be acknowl-
edged and they will be made a part of the
official file on the application. Comments
received as form letters or petitions may
be acknowledged as a group to the per-
son or organization responsible for the
form letter or petition. If comments re-
late to matters within the special exper-
tise of another Federal agency, the Dis-
trict Engineer may seek the advice of
that agency. The applicant must be given
the opportunity to furnish the District
Engineer his proposed resolution or re-
buttal to all objections from Government
agencies and other substantive adverse
comments before final decision will be
made on the application.
(iv) The District Engineer will con-
sider whether or not an environmental
impact statement is necessary (see para-
graph (1) of this section) at the earliest
time during the processing of an applica-
tion involving an activity which is not
already subject to an environmental im-
pact statement. This will be done when
he can make an assessment of the envi-
ronmental impact of a proposed activity,
which in some cases may be upon receipt
of the application due to the magnitude
of the proposed project or the nature of
the area involved. This will be recon-
sidered as additional information is de-
veloped; however, at the earliest time
that it appears an environmental impact
statement may be required, the District
Engineer will require the applicant to
furnish additional information and an
analysis of the environmental impacts of
the proposed action. A preliminary deter-
mination as to whether an environmental
impact statement will be prepared or a
statement that an environmental Impact
statement has already been prepared on
the overall activity by the Corps of Engi-
neers or another Federal agency, will be
announced in the Public Notice (see para-
graph (j) of this section). If the District
Engineer determines that an environ-
mental impact statement will not be pre-
pared for the proposed activity, a finding
to that effect will immediately be placed
in the permit file and, if the public notice
has indicated an Intent to prepare a
statement, will be announced to the pub-
lic. This finding shall be dated and
signed and shall include a brief state-
ment of the facts and reasons for the
decision. If the District Engineer be-
lieves that granting the permit may be
warranted but that the proposed activity
would significantly affect the quality of
the human environment, he will prepare
an environmental impact statement in
accordance with § 209.410. In such cases
and if a public hearing Is to be held (see
subparagraph (v), below), the proposed
final environmental impact statement
must be completed prior to the hearing.
If a public meeting is held, however, the
draft environmental impact statement
will be filed with the Council on Envi-
ronmental Quality (CEQ) at least 15 days
prior to the meeting.
(v) If the proposed activity includes
the discharge of dredged or fill material
into navigable waters or the transpor-
tation of dredged material for the pur-
pose of dumping it in ocean waters and
a person or persons having an interest
which may be affected by the issuance of
a permit requests a hearing, or if a sec-
ond State objects to issuance of a permit
on the basis of water quality and re-
quests a hearing, or if otherwise required
by law or directed by the Chief of Engi-
neers, the District Engineer will arrange
a public hearing in accordance with ap-
plicable Corps of Engineers regulations
(§ 209.133). If no public hearing is to be
held and the District Engineer deter-
mines that public interest warrants and
additional information necessary to the
proper evaluation of the application
would proba'bly be obtained thereby, the
District Engineer will hold a public meet-
ing (see paragraph (k) of this section).
(vi) After all above actions have been
completed, the District Engineer will de-
termine in accordance with the record
and applicable regulations whether or
not the permit should be issued. If a per-
mit is warranted, he will determine the
conditions and duration which should be
incorporated into the permit (see para-
graphs (m) and (n) of this section). In
accordance with the authorities specified
in paragraph (p) of this1 section the
District Engineer will take final action
or forward the application with all per-
tinent comments, records, and studies.
Including the final environmental im-
pact statement if prepared, and a state-
ment of findings to support his recom-
mendation, through channels to the
official authorized to make the final deci-
sion. The report forwarding the applica-
tion for decision will be in the format
prescribed in paragraph (s) of this sec-
tion. Notice that the application has been
forwarded to higher headquarters will be
furnished the applicant. When the final
decision is made, the statement of find-
ings to support that decision will be
placed in the permit file. If an environ-
mental impact statement was filed with
CEQ, a copy of the statement of findings
will be submitted to DAEN-CWO-N for
filing with CEQ. In those cases where an
environmental impact statement has not
been prepared but the application is
forwarded for decision in the format
prescribed in paragraph (s) of this sec-
tion, the report will serve as the State-
ment of Findings. •'
(vii) If the final decision is to deny
the permit, the applicant will be advised
In writing of the reason for denial. If the
final decision is to issue the permit, the
Issuing official will forward two copies of
the draft permit to the applicant for
signature accepting the conditions of the
permit. The applicant will return both
signed copies to the Issuing officials whp
then signs and dates the permit. The per-
mit is not valid until signed by the issu-'
Ing official. Final action on the permit
application Is the signature on the letter.
FEDERAL REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
31334
RULES AND REGULATIONS
notifying the applicant of the denial of
his application or signature of the issuing
official on the authorizing document.
(viii) The District Engineer will pub-
lish monthly a list of permits issued or
denied during the previous month. The
list will identify each action by public
notice number, name of applicant, and
brief description of activity involved.
This list will be distributed to all per-
sons who received any of the public no-
tices listed.
(ix) If the applicant fails to respond
within six months to any request or in-
quiry of the District Engineer, the Dis-
trict Engineer may advise the applicant
by registered letter that his application
will be considered as having been with-
drawn unless the applicant responds
thereto within thirty days of the date of
the letter.
(2) Procedures for particular types of
permit situations, (i) Activities requir-
ing water quality certification:
(a) If water quality certification for
the proposed activity is necessary under
the provisions of the Federal Water
Pollution Control Act, the District En-
gineer shall so notify the applicant and
obtain from him either the appropriate
certification or a copy of his application
for such certification. The District En-
gineer shall forward one copy of the
permit application to the appropriate
certifying agency and two copies to the
Regional Administrator of the Environ-
mental Protection Agency (EPA). The
District Engineer may issue the public no-
tice of the application jointly with the
certifying agency if arrangements for
such joint notices have been approved by
the Division Engineer. When the cerifi-
cation is received a copy of the certifica-
tion will be forwarded to the Regional
Administrator of EPA who shall deter-
mine if the proposed activity may affect
the quality of the waters of any State or
States other than the State in which the
work is to be performed. If he needs sup-
plemental information in order to make
this determination, the Regional Ad-
ministrator may request it from the Dis-
trict Engineer who shall obtain it from
the applicant and forward it to the
Regional Administrator. The Regional
Administrator shall, within thirty days of
receipt of the application, certification
and supplemental information, notify the
affected State, the District Engineer, and
the applicant in the event such a second
State may be affected. The second State
then has sixty days to advise the District
Engineer that it objects to the issuance
of the permit on the basis of the effect
on the quality of its waters and to re-
quest a hearing.
(b) No authorization will be granted
until required certification has been ob-
tained or has been waived. Waiver is
deemed to occur if the certifying agency
fails or refuses to act on a request for
certification within a reasonable period
of time after receipt of such request. The
request for certification must be made in
accordance with the regulations of the
certifying agency. In determining wheth-
er or not a waiver period has com-
menced, the District Engineer will verify
that the certifying agency has received
a valid request for certification. Three
months shall generally be considered to
be a reasonable period of time. If, how-
ever, special circumstances identified by
the District Engineer require that action
on an application be taken within a more
limited period of time, the District En-
gineer shall determine a reasonable les-
ser period of time, advise the certifying
agency of the need for action by a par-
ticular date and that, if certification is
not received by that date, it will be con-
sidered that the requirement for certi-
fication has been waived. Similarly if It
appears that circumstances may reason-
ably require a period of time longer than
three months, the District Engineer may
afford the certifying agency up to one
year to provide the required certification
before determining that a waiver has oc-
curred. District Engineers shall check
with the cetifying agency at the end of
the allotted period of time before deter-
mining that a waiver has occurred.
(ii) If the proposed activity will be
located in the coastal zone of a State, the
District Engineer shall obtain from the
applicant a certification that the activity
conforms to the coastal zone manage-
ment program of the State. Upon receipt
of the certification, the District En-
gineer will forward a copy of the permit
application and certification to the State
agency responsible for implementing the
coastal zone management program and
request its concurrence or objection. The
District Engineer can issue the public no-
tice of the application jointly with the
State agency if arrangements for such
joint notices have been approved by the
Division Engineer. A copy of the certifica-
tion will also be sent, along with the pub-
lic notice of the application to the Direc-
tor, Office of Coastal Zone Management,
NOAA, Department of Commerce, Rock-
ville, Maryland 20852. If the State agency
fails to concur or object to the certifica-
tion within six months of receipt of the
request, it will be presumed to waive its
right to so act and the certification will
be presumed to be valid. Before deter-
mining that a waiver has occurred, the
District Engineer will check with the
State agency to verify that it has failed
to act. If the State agency objects to the
proposed activity, the District .Engineer
will so advise the Director, Office of
Coastal Zone Management, NOAA, and
request advice within thirty days wheth-
er or not the Secretary of Commerce
will review the pbjection.Jf the objection
will not be reviewed, the permit will be
denied. If, however, the Secretary of
Commerce Indicates he will review the
objection, further action on the applica-
tion will be held in abeyance pending
notification of the results of the review.
If the objection is sustained, the permit
will be denied. If the objection is over-
ruled by the Secretary's finding, however,
the processing will be continued.
(ill) If the proposed activity Involves
any property listed in the National Regis-
ter of Historic Places (which is published
in its entirety in the FEDERAL REGISTER
annually in February with addenda
published each month), the District
Engineer will determine if any aspect of
the activity causes or may cause any
change in the quality of the historical,
architectural, archeological, or cultural
character that qualified the property for
listing in the National Register. Gen-
erally adverse effects occur under con-
ditions which include but are not
limited to destruction or alteration of
all or part of the property; isolation
from or alteration of its surrounding en-
vironment; and introduction of visual,
audible, or atmospheric elements that
are out of character with the property
and its setting. If the District Engineer
determines that the activity will have no
effect on the property, he will proceed
with the standard procedures for proc-
essing the application. If, however, the
District Engineer determines that the
activity will have an effect on the prop-
erty, he will proceed in accordance with
the procedures specified in the FEDERAL
REGISTER, Volume 37, Number 220, No-
vember 14, 1972, pages 24146 to 24148.
(iv) If the proposed activity consists
of the dredging of an access ehannel
and/or berthing facility associated with
an authorized Federal navigation proj-
ect, the activity will be included in the
planning and coordination of the con-
struction or maintenance of the Federal
project to the maximum extent feasible.
Separate notice, meeting or hearing, and
environmental impact statement will not
be required for activities so included and
coordinated; and the public notice issued
by the District Engineer for these Fed-
eral and associated non-Federal activi-
ties will be the notice of Intent to issue
permits for those included non-Federal
dredging activities required by paragraph
(g) (17) (iv) of this section. The decision
whether to issue or deny such a permit
will be consistent with the decision on
the Federal project unless special con-
siderations applicable to the proposed
activity are identified.
(v) In addition to the general distri-
bution of public notices cited in para-
graph (i) (1) (iv) of this section, notices
will be sent to other addressees in appro-
priate cases as follows:
(a) If the activity involves structures
or dredging along the shores of the sea
or Great Lakes, to the Coastal Engineer-
ing Research Center, Washington, D.C.
20016.
(b) If the activity involves construc-
tion of iixed structures or artificial
islands on the outer continental shelf
or in the territorial seas, to the Deputy
Assistant Secretary of Defense (Installa-
tions and Housing) Washington, D.C.
20310, the Director, Defense Mapping
Agency, Hydrographic Center, Washing-
ton, D.C. 20390, Attention, Code N512,
and the Director, National Ocean Survey,
NOAA, Department of Commerce, Rock-
ville, Maryland 20852.
(c) If the activity involves the con-
struction of structures to enhance fish
propagation along the Atlantic and Gulf
coasts, to toe Atlantic Estuarine Fish-
eries -Center, National Marine Fisheries
Service, NOAA, Department of Com-
merce, Beaufort, North Carolina 28416.
(
-------
RULES AND REGULATIONS
31335
aircraft operations or for purposes asso-
ciated with seaplane operations, to the
Regional Director of the Federal Avia-
tion Administration.
(e) If the activity Is in connection with
a foreign-trade zone, to the Executive
Secretary, Foreign-Trade Zones Board,
Department of Commerce, Washington,
I).C. 20230, and to the appropriate Dis-
trict Director of Customs as Resident
Representative, Foreign-Trade Zones
Board.
(vl) Copies of permits will be fur-
nished to other agencies in appropriate
cases as follows:
(a) If the activity involves the con-
struction of structures or artificial
Islands on the outer continental shelf,
to the Director, Defense Mapping
Agency, Hydrographic Center, Washing-
ton, D.C. 20390. Attention, Code N512
and to the Director, National Ocean Sur-
vey, NOAA, Department of Commerce,
Rockvllle, Maryland 20852.
(&) If the activity Involves the con-
struction of structures to enhance fish
propagation (fish havens) along the
coasts of the United States, to Defense
Mapping Agency, Hydrographic Center
and National Ocean Survey as in para-
graph (1) (2) (vi) (a) of this section and
to the Atlantic Estuarine Fisheries Cen-
ter, National Marine Fisheries Service,
NOAA, Department of Commerce, Beau-
fort, North Carolina 28416.
(c) If the activity Involves the erec-
tion of an aerial transmission line across
a navigable water of the United States, to
the Director, National Ocean Survey,
NOAA, Department of Commerce, Rock-
ville, Maryland 20852, reference C322.
<
-------
31336
RULES AND REGULATIONS
public Interest. That decision will reflect the
national concern for both protection and
utilization of Important resources. The bene-
fit which reasonably may be expected to ac-
crue from the proposal must be balanced
against Its reasonably foreseeable detriments.
All factors which may be relevant to the pro-
posal will be considered; among those are
conservation, economics, aesthetic, general
environmental concerns, historic values, flsh
and wildlife values, flood damage prevention,
land use classification, navigation, recreation,'
water supply, water quality and, In general,
the needs and welfare of the people. No per-
mit will be granted unless its issuance is
found to be In the public Interest.
(i) If a Federal agency other than the
Corps of Engineers has primary respon-
sibility for licensing an activity and for
environmental review as contemplated
by the provisions of the National En-
vironmental Policy Act, (see paragraph
(e) (3) of this section), the public notice
shall, in lieu of the general paragraph
above, describe the actions and reviews
pending before those agencies, recite the
fact that District Engineers will consult
with, and give due consideration to the
findings of, those agencies and provide
the following paragraph: "The decision
whether to issue a permit will based on
a consideration of the effect which the
proposed activity will have on the navi-
gable capacity of the waterway." (See
particularly paragraphs (g)(13), (g)
(15), and (g) (16) of this section.)
(2) If the activity involves the dis-
charge of dredged or fill material into
the navigable waters or the transporta-
tion of dredged material for the purpose
of dumping it in ocean waters, the pub-
lic notice shall also indicate that the
evaluation of the impact of the activity
on the public interest will include ap-
plication of the guidelines promulgated
by the Administrator, EPA, under au-
thority of section 404(b) of the Federal
Water Pollution Control Act or of the
criteria established under authority of
section 102 (a) of the Marine Protection,
Research and Sanctuaries Act of 1972 as.
appropriate.
(&) In cases involving construction of
fixed structures or artificial islands on
outer continental shelf lands which are
under mineral lease from the Depart-
ment of the Interior, the notice will con-
tain the following statement: "The de-
cision as to whether a permit will be
issued will be based on an evaluation of
the impact of the proposed work on
navigation and national security."
(x) If the activity includes the dis-
charge of dredged or fill material in the
navigable waters or the transportation
of dredged material for the purpose of
dumping it in ocean waters, the follow-
ing statement will also be included in
the public notice:
Any person who has an Interest which
may be adversely affected by the Issuance
of a permit may request a public hearing.
The request must be submitted In writing
to the District Engineer within thirty days
of the date of this notice and must clearly
set forth the Interest which may be ad-
versely affected and the manner In which the
interest may be adversely affected by the
activity. '
(2) It is presumed that all interested
parties and agencies will wish to respond
to public notices; therefore, a lack of
response will be interpreted as meaning
that there is no objection to the appli-
cation. A copy of the priblie notice with
the list of the addresses to whom the
notice was sent will be included in the
record. If a question develops with re-
spect to an activity for which another
agency has responsibility and that other
agency has not responded to the public
notice, the District Engineer may request
their comments. Whenever a response to
a public notice has been received from
a member of Congress, either in behalf
of a constituent or, himself, the District
Engineer will inform the member of
Congress of the final decision.
(3) Notices sent to several agencies
within the same State may result in con-
flicting comments from those agencies.
While many States have designated a
single State agency or individual to pro-
vide a single and coordinated State posi-
tion regarding pending permit applica-
tions, where a State has not so
designated a single source, District Engi-
neers will elicit from the Governor an
expression of his views and desires con-
cerning the application. Where coordi-
nation is required by the Fish and
Wildlife Coordination Act (see para-
graph (c) (5) of this section), District
Engineers will address a letter to the
designated single Sate agency or Gover-
nor, as appropriate, inviting attention to
the coordination requirements of the
Fish and Wildlife Coordination Act and
requesting that a report from the head
of the State agency responsible for fish
and wildlife resources be appended to
the coordinated State report.
(k) Public meetings. (1) It is the
policy of the Corps of Engineers to con-
ducj; the civil works program in an
atmosphere of public understanding,
trust, mutual cooperation, and in a
manner responsive to the public interest.
The views of all concerned persons are
initially sought by means of public no-
tices in connection with applications for
permits. Where response to a notice
indicates further opportunity for public
expressions ~ of interest may be war-
ranted, and a public hearing is not
required by law or directed by the Chief
of Engineers, the District Engineer may
hold a public meeting.
(2) A public meeting is a forum, at
which all concerned persons are given
an opportunity to present additional in-
formation relevant to a proper evalua-
tion of an application for a permit for an
activity. If a public meeting is held, no-
tice announcing the meeting will be
published at least thirty days in advance
of the meeting. A summary of environ-
mental considerations will be included
in the notice. The applicant will be given
an opportunity to present his proposal
and explain why he thinks it is in the
public interest. Officials of other Federal
agencies or of State and local govern-
ments will be given opportunity to ex-
press their views, as well all other per-
sons. The conduct of the meeting will
be in accordance with § 209.405 and a
transcript of the meeting will be part of
the record.
(1) Environmental impact statement.
(1) Section 102(2) (C) of the National
Environmental Policy Act of 1969 (NEPA)
requires all Federal agencies, with re-
spect to major Federal actions signifi-
cantly affecting the quality of the hu-
man environment, to submit to CEQ a
detailed statement on:
(i) The environmental impact of the
proposed action;
(ii) Any adverse environmental effects
which cannot be avoided should the pro-
posal be implemented;
(iii) Alternatives to the proposed ac-
tion;
(iv) The relationship between local
short-term uses of man's environment
and the maintenance and enhancement
of long-term productivity;
(v) Any irreversible and irretrievable
commitments of resources which would
be involved in the proposed action should
it be implemented.
(2) As indicated in paragraph (i) (1)
(iv) of this section the District Engineer
must determine whether an environ-
mental impact statement is required in
connection with a permit application. If
the District Engineer believes that grant-
ing the permit may be warranted but
that the proposed activity would have a
significant environmental,impact, an en-
vironmental impact statement will be
prepared, coordinated and filed in ac-
cordance with provisions of § 209.410
prior to final action on the application.
If another agency is the lead agency as.
defined by section 5b of the CEQ guide-
lines contained in § 209.410, the District
Engineer will coordinate with that
agency to insure that the resulting en-
vironmental impact statement adequate-
ly describes the impact of the activity
which is subject to Corps permit author-
ity.
(3) The scope of the considerations to
be discussed in an environmental im-
pact statement depends heavily on conr
tinuing court interpretation of NEPA
and on the nature of the activity for
which authorization is requested.
(i) All the direct effects of the activity
must be evaluated, as must any indirect
effects which have a clear or proximate
relationship to the activity. Other ef-
fects, however, may be too speculative or
remote to merit detailed consideration.
Thus an environmental impact state-
ment which examines the probable en-
vironmental impact of an activity should
evaluate all known effects which have a
direct or proximate but indirect rela-
tionship to the proposal and should cite
other remote or speculative effects.
(ii) The scope of the environmental
impact statement is often somewhat dif-
ferent from that of the laws under which
the activity may be authorized. Thus, an
authorization may be only for a part of
a much larger and more complex oper-
ation or development over which few
regulatory controls exist. In such cases,
the range of factors to be discussed in
the environmental impact statement may
fEDERAl REGISTER, VOL 40, NO. 144—FRIDAY, JULY 25, 1975
-------
RULES AND REGULATIONS
31337
of necessity be expanded to include fac-
tors which are beyond the normal scope
of the law on which the authorization
depends.
(m) Forms of authorisation. (1) The
basic form for authorizing activities in
navigable waters or ocean waters is ENG
Form 1721, Department of the Army Per-
mit (Appendix C). This form will be used
to authorize activities under provisions
of:
(i) Section 10 of the River and Harbor
Act of March 3, 1899, in all cases where
a letter of permission is not appropriate
(see paragraph m(3) of this section.)
(ii) Section 404 of the Federal Water
Pollution Control Act.
(iii) Section 103 of the Marine Pro-
tection, Research and Sanctuaries Act
of 1973.
(2) While the general conditions in-
cluded in ENG Form 1721 are normally
applicable to all permits, some may not
apply to certain authorizations (e.g.
after-the-fact situations where work is
completed, or situations in which the
permittee is a Federal agency) and may
be deleted by the issuing officer. Special
conditions applicable to the specific ac-
tivity will be included in the permit as
necessary to protect the public interest
in the navigable waters or ocean waters.
(3) In those cases subject to section
10 of the River and Harbor Act of March
3, 1899, in which, in the opinion of the
District Engineer, the proposed work is
minor, will not have significant impact
on environmental values, and should en-
counter no opposition, the District Engi-
neer may use the abbreviated processing
procedures of paragraph (i) (2) (vii) of
this section and authorize the work by
a letter of permission. The letter of per-
mission will not be used to authorize
the discharge of dredged or fill material
into navigable waters or the transporta-
tion of dredged material for purpose of
dumping it in ocean waters. -The letter
of permission will be in letter form and
will identify the permittee, the author-
ized work and location of the work, the
statutory authority (i.e., 33 U.S.C. 403),
any limitations on the work, a construc-
tion time limit and a requirement for a
report of completed work. A copy of the
general conditions from ENG form 1721
will be attached and will be incorporated
by reference into the letter of permission.
(4) Permits for structures under sec-
tion 9 of the Act of March 3, 1899, will
bs drafted during review procedures at
Department of the Army level.
(n) Duration of authorizations. (1)
Authorizations for activities in or affect-
ing navigable waters or ocean waters may
authorize both the work and the result-
ing structure. Authorizations continue in
effect until they automatically expire, or
are modified, suspended, or revoked.
(2) Authorization for Ijhe existence of
a structure or other form of alteration
of the waterway is usually for an indefi-
nite duration with no expiration date
cited. However, where a temporary struc-
ture is authorized, or where restoration
of a waterway is contemplated, the au-
thorzation will be of limited duration
with a definite expiration date. Except
as provided in paragraph (r) (5) of this
section permits for the discharge of
dredged material in the navigable waters
or for the transportation of dredged ma-
terial for the purpose of dumping it in
ocean waters will be of limited duration
with a definite expiration date.
(3) Authorizations for construction
work or other activity will specify time
limits for accomplishing the work or ac-
tivity. The time limits will specify a date
by which the work must be started, nor-
mally one year from the date of issu-
ance, and a date by which the work must
be completed. The dates will be estab-
lished by the issuing official and will pro-
vide reasonable times based on the scope
and nature of the work involved. An au-
thorization for work or other activity will
automatically expire if the permittee
fails to request an extension or revali-
dation.
(4) Extensions of time may be granted
by the District Engineer for authoriza-
tions of limited duration, or for the time
limitations imposed for starting or com-
pleting the work or activity. The permit-
tee must request the extension and ex-
plain the basis of the request, which will
be granted only if the District Engineer
determines that an extension is in the
general public interest. Requests for ex-
tensions will be procesed in acordance
with the regular procedures of paragraph
(i) of this section including issuance of
a public notice, except that such process-
ing is not required where the District
Engineer determines that there have
been no significant changes in the at-
tendant circumstances since the author-
ization was issued and that the work is
proceeding essentially in accordance with
the approved plans and conditions.
(5) If the authorized work includes
periodic maintenance dredging (see
paragraph (g) (2) of :this sectKm), an
expiration date for the authorization of
that maintenance dredging will be in-
cluded in the permit. The expiration date,
which in no event is to exceed ten years
from the date of issuance of the permit,
will be established by the issuing official
after his evaluation of the proposed
method of dredging and disposal of the
dredged material. If the permittee desires
to continue maintenance dredging be-
yond the expiration date, he must re-
quest a revalidation of that portion of his
permit which authorized the mainte-
nance dredging. The request must be
made to the District Engineer six months
prior to the expiration date, and include
full description of the proposed methods
of dredging and disposal of dredged ma-
terials. The District Engineer will proc-
ess the request for revalidation in accord-
ance with the standard procedures in
paragraph (h) of this section includ-
ing the issuance of a public notice de-
scribing the authorized work to be main-
tained and the proposed methods of
maintenance.
(o) Modification, suspension or revo-
cation of authorisations. (1) The Dis-
trict Engineer may evaluate the circum-
stance and conditions of a permit either
on his own motion or as the result of
periodic progress inspections, and initi-
ate action to modify, suspend, or revoke
a permit as may be made necessary by
considerations of the general public in-
terest. Among the factors to be consid-
ered are the extent of the permittee's
compliance with the terms and condi-
tions of the permit; whether or not cir-
cumstances relating to the activity au-
thorized have changed since the permit
was issued, extended or revalidated, and
the continuing adequacy of the permit
conditions; any significant objections to
the activity authorized by the permit
which were not earlier considered; and
the extent to which modification, sus-
pension, or other action would adversely
affect plans, investments and actions the
permittee has reasonably made or taken
in reliance on the permit. Significant in-
creases in scope of a permitted activity
will be processed as new applications for
permits in accordance with paragraph
(i) of this section, and not as modifica-
tions under this paragraph.
(2) The District Engineer, as a result
of revaluation of the circumstances and
conditions of a permit, may determine
that protection of the general public in-
terest requires a modification of the
terms or conditions of the permit. In such
cases, the District Engineer will hold in-
formal consultations with the permittee
to ascertain whether the terms and con-
ditions can be modified by mutual agree-
ment. If a mutual agreement is reached
on modification of the terms and condi-
tions of the permit, the District Engineer
will give the permittee written notice of •
the modification, which will then become
effective on such date as the District En-
gineer may establish, which in no event
shall be less than ten days from its date
of issuance. In the event a mutual agree-
ment cannot be reached by the District
Engineer and the permittee, the District
Engineer will proceed in accordance with
paragraph (o) (3) of this section if im-
mediate suspension is warranted. In
cases where immediate suspension is not
warranted but the District Engineer de-
termines that the permit should be modi-
fied, he will notify the permittee of the
proposed modification and reasons there-
for, and that he may request a hearing.
The modification will become effective
on the date set by the District Engineer
which shall be at least ten days after
receipt of the notice unless a hearing is
requested within that period in accord-
ance with § 209.133. If the permittee fails
or refuses to comply with the modifica-
tion the District Engineer will immedi-
ately refer the case for enforcement to
DAEN-GCK.
(3) The District Engineer may, after
telephonic consultation with the Division
Engineer, suspend a permit after pre-
paring a written determination and find-
ing that immediate suspension would be
in the.general public interest. The Dis-
trict Engineer will notify the permittee
in writing by the most expeditious means
available that the permit has been sus-
pended with the reasons therefor, and
order the permittee to stop all previously
authorized activities. The permittee will
also be advised that following this sus-
pension a decision will be made to either
reinstate, modify, or revoke the permit.
FEDERAL REGISTER, VOL 40, NO. 144—FRIDAY, JULY 25, 1975
-------
31338
RULES AND REGULATIONS
and that he may request a heariag
within 10 days of receipt of notice of the
suspension to present information in tills
matter. If a hearing is requested the pro-
cedures prescribed In I 209.133 will be
followed. After the completion of the
hearing (or within a' reasonable period
of time after issuance of the notice to
the permittee that the permit has been
suspended if no hearing Is requested)
the District Engineer will take action to
reinstate the permit, modify the permit,
or recommend revocation of the permit
In accordance with paragraph (o) (4) of
this section.
(4) Following completion of the sus-
pension procedures in paragraph (o) (3)
of this section, if revocation of the per-
mit is recommended, the District Engi-
neer will prepare a report of the circum-
stances and forward it together with the
record of the suspension proceedings to
DAEN-CWO-N. The Chief of Engineers
may, prior to deciding whether or not to
revoke the permit, afford the permittee
the opportunity to present any addi-
tional information not made available to
the District Engineer at the time he
made the recommendation to revoke the
permit including, where appropriate, the
means by which he intends to comply
with the terms and conditions of the per-
mit. The permittee will be advised in
writing of the final decision.
(p) Authority to issue or deny au-
thorizations. Except as otherwise pro-
vided in this regulation, the Secretary of
the Army subject to such conditions as he
'or his authorized representative may
from time to time impose, has authorized
the Chief of Engineers and his author-
ized representatives to issue or deny au-
thorizations for construction or other
work in or affecting navigable waters of
the United States pursuant to sections
10 and 14 of the Act of March 3, 1899,
and section 1 of the Act of June 13,1902.
He also has authorized the Chief of En-
gineers and his authorized representa-
tives to issue or deny authorizations for
the discharge of dredged or fill material
in the navigable waters pursuant to sec-
tion 404 of the Federal Water Pollution
Control Act or for the transportation of
dredged material for the purpose of
dumping it into ocean waters pursuant
to section 103 or Marine Protection, Re-
search and Sanctuaries Act of 1972. The
authority to issue or deny permits pur-
suant to section 9 of the River and Har-
bor Act of March 3, 1899 has not been
delegated to the Chief of Engineers or his
authorized representatives.
(1) District Engineers are authorized
to issue in accordance with this regula-
tion permits and letters of permission
which are subject to such special condi-
tions as are necessary to protect the
public interest in the navigable waters
or ocean waters pursuant to sections
10 and 14 of the Rivei; and Harbor Act
of March 3, 1899, section 1 of the River
and Harbor Act of June 13r1902, section
404 of the Federal Water Pollution Con-
trol Act, and section 103 of the Marine
Protection, Research and Sanctuaries
Act of 1972, in all cases in which there
are no known substantive objections to
the proposed work or activity or in which
objections have been resolved to the sat-
isfaction of the District Engineer. It is es-
sential to the legality of a permit that
it contain the name-of the District En-
gineer as the issuing officer. However, the
permit need not be signed by the District
Engineer, in person; but may be signed
for and in behalf of him by whomever
he designates. District Engineers are
authorized to deny permits when re-
quired State or local authorization and/
or certification has been denied (see par-
agraph (f) (3) (i) of this section), when
a State has objected to a required certi-
fication of compliance with its coastal
zone managementprogram and the Sec-
retary of Commerce has not reviewed
the action and reached a contrary find-
ing (see paragraph (g) (18) and (i) (2)
(ii) of this section) or when the proposed
work will unduly interfere with naviga-
tion. All other permit applications in-
cluding those cases in paragraph (p) (2)
(i) through (vii) of this section' will be
referred to Division Engineers. District
Engineers are also authorized to add,
modify, or delete special conditions in
permits, except for those conditions
which have been imposed by higher au-
thority, and to suspend permits accord-
ing to the procedures of paragraph
(o)(3) of this section.
(2) Division Engineers will review, at-
tempt to resolve outstanding matters,
and evaluate all permit applications re-
ferred by District Engineers. Division En-
gineers may authorize the issuance or
denial of permits pursuant to sections
10 and "14 of the River and Harbor Act
of March 3, 1899, section 1 of the River
and Harbor Act of June 13, 1902, sec-
tion 404 of the Federal Water Pollution
Control Act, and section 103 of the
Marine Protection, Research and Sanc-
tuaries Act of 1972 and the inclusion of
conditions to those permits as may be
necessary to protect the public interest in
the navigable waters or ocean waters in
accordance with the policies cited in this
regulation.
(i) Except as provided in paragraph
(p) (2) (ii) of this section if the Division
Engineer determines that issuance of a
permit with or without conditions is in
the public interest, but there is continu-
ing objection to the issuance of the per-
mit by another Federal agency, he shall
advise the regional representative of that
Federal agency of his intent to issue the
permit. The Division Engineer shall not
proceed with the issuance of a permit if,
within 15 days after the date of this
notice of intent to issue a permit, an au-
thorized representative of that Federal
Agency indicates to the Division Engi-
neer in writing that he wishes to bring
his concerns to Departmental level. In
such cases, the proposed permit may be
issued at the expiration of 30 days from
the date of receipt of the letter from
such representative unless, prior to that
time, as a result of consultations at De-
partmental level, it is directed that the
matter be forwarded to higher authority
for resolution. Thereafter, a permit will
be issued only pursuant to and in accord-
ance' with instructions from such higher
authority. Every effort should be made to
resolve differences at the Division Engi-
neer level before referring the matter to
higher authority.
(ii) Division Engineers will -refer to
the Chief of Engineers the following
cases:
(a) When it is proposed to Issue a
permit and there are unresolved objec-
tions from another Federal agency which
must be handled under special proce-
dures specified in statutes or Memoranda
of Understanding which thereby pre-
clude final resolution by the Division En-
gineer (see paragraphs (g)(4), (5) and
(17) of this section);
(b) When the recommended decision
is contrary to the stated position of the
Governor of the affected State or of a
member of Congress;
(c) When there is substantial doubt
as to authority, law, regulations, or poli-
cies applicable to the proposed activity;
(ti) When higher authority requests
the case be forwarded for decision;
(e) Where the case is recognized to be
highly controversial, or litigation is
anticipated;
(/) When the proposed activity would
affect the baseline used for determina-
tion of the limits of the territorial sea.
Division Engineers may also authorize
the modification or suspension of per-
mits in accordance with the procedures
of this regulation, and may recommend
revocation of permits to the Chief of
Engineers.
(q) Supervision and enforcement. (1)
District Engineers will supervise all au-
thorized activities and will require that
the activity be conducted and executed
in conf ormance with the approved plans
and other conditions of the permit. In-
spections must be made on timely occa-
sions during performance of the activity
and appropriate notices and instructions
will be given permittees to insure that
they do not depart from the approved
plans. Revaluation of permits to assure
complaince with its purposes and condi-
tions will be carried out as provided in
paragraph (o) of this section. If there
are approved material departures from
the authorized plans, the District Engi-
neer will require the permittee to furnish
corrected plans showing the activity as
actually performed.
(2) Where the District Engineer de-
termines that there has been noncompli-
ance with the terms or conditions of a
permit, he should first contact the per-
mittee and attempt to resolve the prob-
lem. If a mutually agreeable resolution
cannot be reached, a written demand for
compliance will be made. If the permit-
tee has not agreed to comply within 5
days of receipt of the demand, the Dis-
trict Engineer will issue an immediately
effective notice of suspension in accord-
ance with paragraph (o) (3) of this sec-
tion above, and consider initiation of ap-
propriate legal action.
(3) For purposes of supervision of per-
mitted activities and for surveillance of
the navigable waters for enforcement of
the permit authorities cited in paragraph
(b) of this section, the District Engineer
will use all means at his disposal. One
method of surveillance for unauthorized
activities which should be used where
FEDERAL REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
appropriate Is aerial photographic re-
connaissance. In addition, all Corps of
Engineers employees will be instructed
to observe and report all activities in
navigable waters which would require
permits. The assistance of members of
the public and personnel of other inter-
ested Federal, State and local agencies
-to observe and report such activities will
be encouraged. To facilitate this sur-
veillance, the District Engineer will re-
quire a copy of ENG Form 4336 to be
posted conspicuously at the site of all
authorized activities and will make avail-
able to all interested persons informa-
tion on the scope of authorized activities
and the conditions prescribed in the au-
thorizations. Furthermore, significant ac-
tions taken under paragraph (o), above,
will be brought to the attention of those
Federal, State and local agencies and
other persons who express particular in-
terest in the affected activity. Surveil-
lance in ocean waters will be accom-
plished primarily by the Coast Guard
pursuant to section 107 (c) of the Marine
Protection, Research and Sanctuaries
Act of 1973. Enforcement actions relative
to the permit authorities cited in para-
graph (b) of this section, including en-
forcement actions resulting from non-
compliance with permit conditions, will
be in accordance with regulations pub-
lished at § 209.170 (ER 1145-2-301).
(4) The expenses Incurred in connec-
tion with the inspection of permitted ac-
tivity in navigable waters normally will
be paid by the Federal Government in
accordance with the provisions of Section
6 of the River and Harbor Act of 3 March
1905 (33 U.S.C. 417) unless daily super-
vision or other unusual expenses are
involved. In such unusual cases, and after
approval by the Division Engineer, the
permittee will be required to bear the
expense of inspections in accordance with
the conditions of his permit; however,
the permittee will not be required or per-
mitted to pay the United States inspector
either directly or through the District
Engineer. The inspector will be paid on
regular payrolls or service vouchers. The
District Engineer will collect the cost
from the permittee in accordance with
the following:
(i) At the end of each month the
amount chargeable for the cost of in-
spection pertaining to the permit will be
collected from the permittee and will be
taken up on the statement of account-
ability and deposited in a designated de-
pository to the credit of the Treasurer of
the United States, on account of reim-
bursement of the appropriation from
which the expenses of the inspection were
paid.
(ii) If the District Engineer considers
such a procedure necessary to insure the
United Stakes against loss through possi-
ble failure of the permittee to supply the
necessary funds in accordance with para-
graph (q) (4) (i) of this section, he may
require the permittee to keep on deposit
with the District Engineer at all times an
amount equal to the estimated cost of in-
spection and supervision for the ensuing
month, such deposit preferably being in
the form of a certified check, payable to
RULES AND REGULATIONS
the order of Treasurer of the United
States. Certified checks so deposited will
be carried in a special deposit account
(guaranty for inspection expenses) and
upon completion of the work under the
permit the funds will be returned to the
permittee provided he has paid the actual
cost of inspection.
(ill) On completion of work under a
permit, and the payment of expenses by
the permittee without protest, the ac-
count will be closed, and outstanding de-
posits returned to the permittee. If the
account is protested by the permittee, it
will be referred to the Division Engineer
for approval before it is closed and before
any deposits are returned to the per-
mittee.
(5) If the permitted activity includes
restoration of the waterway to its orig-
inal condition, or if the issuing official has
reason to consider that the permittee
might be prevented from completing
work which is necessary to protect the
public interest in the waterway, he may
require the permittee to post a bond of
sufficient amount to indemnify the gov-
ernment against any loss as a result of
corrective action it might take.
(r) Publicity. District Engineer will es-
tablish and maintain a program to assure
that potential applicants for permits are
informed of the requirements of this
regulation and of the steps required to
obtain permits for activities in navigable
waters or ocean waters. Whenever the
District Engineer becomes aware of plans
being developed by either private or pub-
lic entities who might require permits in
order to implement the plans, he will'
advise the potential applicant in writ-
ing of the statutory requirements and
the provisions of this regulation. Similar-
ly when the District Engineer is aware of
changes in Corps of Engineers regulatory
jurisdiction he will issue appropriate
public notices.
(s) Reports. The report of a District
Engineer on an application for a permit
requiring action by the Division Engineer
or by the Chief of Engineers will be in a
letter form with the application and.all
pertinent comments, records and studies
including the final environmental impact
statement if prepared, as inclosures. The
following items will be included or dis-
cussed in the report:
(1) Name of applicant.
(2) Location, Character and purpose
of proposed activity.
(3) Applicable statutory authorities
and administrative determinations con-
ferring Corps of Engineers regulatory
jurisdiction.
(4) Other Federal, State, and local
authorizations obtained or required and
pending.
(5) Date of public notice and public
meeting or public hearings, if held, and
summary of objections offered with com-
ments of the District Engineer thereon.
The comments should explain the objec-
tions and not merely refer to inclosed
letters.
(6) Views of State and local authori-
ties.
(7) Views of District Engineer con-
cerning probable effect of the proposed
work on:
31339
(i) Navigation, present and prospec-
tive.
(ii) Harbor lines, if established.
(in) Flood heights, drift.and flood
damage protection.
(iv) Beach erosion or accretion.
(v) Conservation.
(vi) Fish and Wildlife.
(vii) Water Quality.
(viii) Aesthetics.
(ix) Ecology (General Environmental
Concerns).
(x) Historic values.
(xi) Recreation.
(xii) Economy.
(xiii) Water supply.
(xiv) Land use classification and
coastal zone management plans.
(xv) Public Interest (Needs and Wel-
fare of the People).
(8) Other pertinent remarks, Includ-
ing:
(i) Extent of public and private need;
(ii) Desirability of using appropriate
alternatives;
" (iii) Extent and permanence of bene-
ficial and/or detrimental effects; and
(iv) Probable impact in relation to
cumulative effects created by other acti-
vities.
(9) A copy of the environmental as-
sessment and summary of the environ-
mental impact statement if prepared.
(10) A Statement of Findings as an
inclosure.
(11) Conclusions.'
(12) Recommendations including any
proposed special conditions.
APPENDIX A—U.S. COAST GTTABD/CHIEI' or
ENGINEERS MEMORANDUM OF AGREEMENT
1. Purpose and Authority: A. The Depart-
ment of Transportation Act, the Act of Oc-
tober 15, 1966, P.L. 89-670, transferred to and
vested In the Secretary of Transportation cer-
tain functions, powers and duties previously
vested In the Secretary of the Army and the
Chief of Engineers. By delegation of author-
ity from the Secretary of Transportation (49
CFB 1.46(c» the Commandant, U.S. Coast
Guard, has been authorized to exercise cer-
tain of these functions, powers and duties
relating to bridges and causeways conferred
by:
(1) the following provision of law relating
generally to drawbridge operating regula-
tions: Section 5 of the Act of August 18,1894,
as amended (28 Stat. 362; 33 U.S.C. 499);
(2) the following law relating generally
to obstructive bridges: The Act of June 21,
1940, as amended (The Truman-Hobbs Act)
(54 Stat. 497; 33 U.S.C. 511 et seq.);
(3) the following laws and provisions of
law to the extent that they relate generally
to the location and clearances of bridges
and causeways in the navigable waters of
the United States:
(a) Section 9 of the Act of March 3, 1899,
as amended (30 Stat. 1151; 33 U.S.C. 401);
(b) The Act of March 23, 1906, as amended
(34 Stat. 84; 33 U.S.C. 491 et seq.); and
(c) The General Bridge Act of 1946, e.3
amended (60 Stat. 847; 33 U.S.C. 525 et seq.)
except Sections 502 (c) and 503.
B. The Secretary of the Army and The
Chief of Engineers continue to be vested with
broad and Important authorities and re-
sponsibilities with respect to navigable wa-
ters of the United States, Including, but not
limited to, Jurisdiction over excavation and
filling, design flood flows and construction
of certain structures In such waters, and
the prosecution of waterway improvement
projects.
FEDERAL REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
31340
RULES AND REGULATIONS
C. The purposes of this agreement are: (1)
To recognize the common and mutual In-
terest of the Chief of Engineers and the
Commandant, U.S. Coast Guard, In the or-
derly and efficient administration of their
resppr.tlve responsibilities under certain Fed-
eral statutes to regulate certain activities in
navigable waters of the United States;
(2) To clarify the areas of Jurisdiction and
the responsibilities of the Corps of En-
gineers and the Coast Guard with respect to:
(a) the alteration of bridges
(1) in connection with Corps of Engineers
waterway Improvement projects, and
(2) under the Truman-Hobbs Act;
(b) the construction, operation and main-
tenance of bridges and causeways as distin-
guished from other types of structures over
or In navigable waters of the United States;
(c) the closure of waterways and the re-
striction of passage through or under bridges
In connection with their construction, oper-
ation, maintenance and removal; and
(d) the selection of an appropriate design
flood flow for flood hazard analysis of any
proposed water opening.
(3) To provide for coordination and con-
sultation on projects and activities In or af-
fecting the navigable waters of the United
States.
In furtherance of the above purposes the
undersigned do agree upon the definitions,
policies and procedures set forth below.
2. Alteration of bridges in or across navi-
gable waters within Corps of Engineers
projects: A. The Chief of Engineers agrees to
advise and consult with the Commandant
on navigation projects contemplated by the
Corps of Engineers which require the altera-
tion of bridges across the waterways Involved
In such projects. The Chief of Engineers also
agrees to Include In such project proposals
the costs of alterations, exclusive of better-
ments, of all bridges within the limits of the
designated project which after consultation
with the Commandant he determines to re-
quire alteration to meet the needs of exist-
ing and prospective navigation. Under this
concept the federal costs would be furnished
under the project.
B. The Commandant of the Coast Guard
agrees to undertake all actions and assumes
all responsibilities essential to the deter-
mination of navigational requirements for
horizontal and vertical clearances of bridges
across navigable waters necessary In connec-
tion with any navigation project by the Chief
of Engineers. Further, the Commandant
agrees to conduct all public proceedings nec-
essary thereto and establish guide clearance
criteria where needed for the project objec-
tives.
3. Alteration of bridges under the Truman-
Hobos Act: The Commandant of the~Coast
Guard acknowledges and affirms the responsi-
bility of the Coast Guard, under the Truman-
Hobbs Act, to program and fund for the al-
teration of bridges which, as distinct from
project related alterations described In para-
graph 2 herein, become unreasonable obstruc-
tions to navigation as a result of factors or
changes in the character of navigation and
this agreement shall in no way affect, Impair
or modify the powers or duties conferred by
that Act.
4. Approval alteration ami removal of
other bridges and causeways: A. General
definitions. For purposes of this Agreement
and the administration of the statutes cited
In l.A.(3) above, a "bridge" Is any structure
over, on or In the navigable waters of the
United States which (1) la used for the pas-
sage or conveyance of persons, vehicles, com-
modities and other physical matter and (2)
Is constructed In such a manner that either
the horizontal or vertical clearance, or both,
may affect the passage.of vessels or boats
through or under the structure. This defini-
tion Includes, but Is not limited to, highway
bridges, railroad bridges, foot bridges, aque-
ducts, aerial tramways and conveyors, over-
head pipelines and similar structures of like
function together with their approaches,
fenders, pier protection systems, appurte-
nances and foundations. This definition does
not Include aerial power transmission lines,
tunnels, submerged pipelines and cables,
dams, dikes, dredging and filling in, wharves,
piers, breakwaters, bulkheads. Jetties and
similar structures and works (except as they
may be Integral features of a bridge and used
in Its construction, maintenance, operation
or removal; o'r except when they are affixed to
the bridge and will have an effect on the
clearances provided by the bridge) over
which Jurisdiction remains with the Depart-
ment of the Army and the Corps of Engineers
under Sections 9 and 10 of the Act of March 3,
1899, as amended (33 U.S.C. 401 and 403). A
"causeway" is a raised road across water or
marshy land, with the water or marshy land
on both sides of the road, and which is con-
structed in or affects navigation, navigable
waters and design flood flows.
B. Combined structures ana, appurte-
nances. For purposes of the Act cited In
l.A.(3) above, a structure serving more than
one purpose and having characaterlstics of
either a bridge or causeway, as defined In
4.A., and some other structure, shall
be considered as a bridge or causeway when
the structure in its entirety. Including
Its appurtenances and Incidental features,
has or retains the predominant character-
istics and purpose of a bridge or cause-
way. A structure shall not be considered
a bridge or causeway when its pri-
mary and predominant characteristics and
purpose are other than those set forth above
and it meets the general definitions above
only in a narrow technical sense as a result
of incidental features. This interpretation Is
intended to minimize the number of in-
stances which will require an applicant for a
single project to secure a permit or series ot
permits from both the Department at Trans-
portation and the Department of the Army
for each separate feature or detail of the
project when it serves. Incidentally to its pri-
mary purpose, more than one purpose and
has features of either a bridge or causeway
and features of some other structure. How-
ever, if parts of the project are separable
and can be fairly and reasonably character-
ized or classified in an engineering sense as
separate structures, each such structure win
be so treated and considered for approval by
the agency having Jurisdiction thereover.
C. Alteration of the character of bridges
and causeways. The Jurisdiction of the Secre-
tary of Transportation and the Coast Guard
over bridges and causeways includes author-
ity to approve the removal of such structures
when the owners thereof desire to discontinue
their use. If the owner of a bridge or cause-
way discontinues Its use and wishes to re-
move or alter any part thereof In such a man-
ner that it will lose its character as a bridge
or causeway, the Coast Guard will normally
require removal of the structure from the
waterway in its entirety. However, If the
owner of a bridge or a causeway wishes to
retain It to whole or tn part for use other
than for operation and maintenance as a
bridge or causeway, the proposed structure
will be considered as coming within the Ju-
risdiction of the Corps of Engineers. The
Coast Guard will refer requests for such uses
to the Corps of Engineers for consideration.
The Corps of Engineers agrees to advise
the Commandant of the receipt of an appli-
cation for approval of the conversion of a
bridge or causeway to another structure and
to provide opportunity for comment thereon.
If the Corps of Engineers approves the eon-
version of a bridge or causeway to another
structure, no residual Jurisdiction over the
structure will remain with the Coast Guard.
However, If the Corps of Engineers does not
approve the proposed conversion, then the
structure remains a bridge subject to the
Jurisdiction of the Coast Guard.
6. Closure of waterways and restriction
of passage through or under bridges: Under
the statutes.cited In Section 1 of this Memo-
randum of Agreement, the Commandant
must approve the clearances to be made
available for navigation through or under
bridges. It Is understood that this duty and
authority extends to and may be exercised
in connection with the construction, alter-
ation, operation, maintenance and removal
of bridges, and Includes the power to au-
thorize the temporary restriction of passage
through or under a-bridge by use of false-
work, piling, floating equipment, closure of
draws, or any works or activities which tem-
porarily reduce the navigation clearances
and design flood flows, Including closure of
any or all spans of the bridge. Moreover,
under the Ports and Waterways Safety Act
of 1972, Public Law 92-340, 86 Stet. 424, the
Commandant exercises broad powers in wa-
terways to control vessel traffic In areas he
determines to be especially hazardous and
to establish safety zones or other measures'
for limited controls or conditional access
and activity when necessary to prevent dam-
age to or the destruction or loss of, any ves-
sel, bridge, or other structure on or in the
navigable waters of the United States. Ac-
cordingly, In the event that work in connec-
tion with the construction, alteration or re-
pair of a bridge or causeway is of such a
nature that for the protection of life and
property navigation through or in the vicin-
ity of the bridge or causeway must be tem-
porarily prohibited, the Coast Guard may
close that part of the affected waterway
while such work is being performed. How-
ever, It Is also clear that the Secretary of
the Army and the Chief of Engineers have
the authority, under Section 4 of the Act
of August 18, 1894, as amended, (33 U.S.C.
1) to prescribe rules for the use, adminis-
tration and navigation of the navigable wa-
ters of the United States. In recognition of
that authority, and pursuant to Section 102
(c) of the Ports and Waterways Safety Act,
the Coast Guard will consult with the Corps
of Engineers when any significant restriction
of passage through or under a bridge is con-
templated to be authorized or a waterway is
to be temporarily closed.
6. Coordination: and cooperation proce-
dures. A. District Commanders, Coast Guard
Districts, shall send notices of applications
for permits for bridge or causeway construc-
tion, modification, or removal to the Corps
of Engineers Divisions and Districts In which
the bridge or causeway Is located.
B. District Engineers, Corps of Engineers,
shall send notices of applications for permits
for other structures or< dredge and fill work,
to local Coast Guard District Commanders.
C. In cases where proposed structures or
modifications of structures do not clearly
fall within one of the classifications set forth
in paragraph 4,A. above, the application will
be forwarded with recommendations of (toe
reviewing officers through channels to the
Chief of Engineers and the Commandant of
the Coast Guard who shall, after mutual
consultation, attempt to resolve the ques-
tion.
D. If the above procedures fail to produce
agreement, the application will be forwarded
to the Secretary of the Army and Secretary
of Transportation for their determination.
E, The Chief of Engineers and the Com-
mandant, Coast Guard, pledge themselves to-
mutual cooperation and consultation in
making srallabU timely Information, and
data, seeking unlforralty and consistent?
among field offices, and providing timely and
FEDERAL REGISTER, VOL. 40, NO. 144—FRIDAY, JULY 25, 1975
-------
RULES AND REGULATIONS
31341
adequate -review of all matters arising In
connection with the administration of their
responsibilities governed by the Acts cited
herein.
Dated: March 21, 1973.
Dated: April 18, 1973.
C. B, BENDER.
F. J. CLARKE.
APPENDIX B—MEMORANDUM OF UNDERSTAND-
ING BETWEEN THE SECRETARY or THE IN-
TERIOR AND THE SECRETARY OF THE ARMY
In recognition of the responsibilities of the
Secretary of the Army under sections 10 and
13 of the Act of March 3, 1899 (33 U.S.C. 403
and 407), relating to the control of dredging,
filling, and excavation in the navigable waters
of the United States, and the control of refuse
In such waters, and the Interrelationship of
those responsibilities with the responsibilities
of the Secretary of the Interior under the
Federal Water Pollution Control Act, as
amended (33 U.S.C. 466 et seq.), the Fish and
Wildlife Coordination Act, as amended (16
U.S.O. 661-666c), and the Fish and Wildlife
Act of 1956, as amended (16 U.S.C. 742a et
Beq.), relating to the control and prevention
of water pollution In such waters and the
conservation of the Nation's natural resources
and related environment, Including fish and
wildlife and recreational values thereto; In
recognition of our Joint responsibilities under
Executive Order No. 11288 to improve water
quality through the prevention, control, and
abatement of water pollution from Federal
and federally licensed activities; and in
recognition of other provisions of law and
policy, we, the two Secretaries, adopt the
following policies and procedures:
1. It Is the policy of the two Secretaries
that there shall be full coordination and co-
operation between then" respective Depart-
ments on the above responsibilities at all or-
ganizational levels, and it is their view that
maximum efforts in the discharge of those
responsibilities,' including the resolution of
differing views, must be undertaken at the
earliest practicable time and at the field or-
ganizational unit most directly concerned.
Accordingly. District Engineers of the U.S.
Army Corps of Engineers shall coordinate
with the Regional Directors of the Secretary
of the Interior on fish and wildlife, recrea-
tion, and pollution problems associated with
dredging, filling, and excavation operations to
be conducted under permits issued under the
1899 Act in the navigable waters of the United
States, and they shall avail themselves of the
technical advice and assistance which such
Directors may provide.
2. The Secretary of the Army will seek the
advice and counsel of the Secretary of the
Interior on difficult cases. If the Secretary of
the Interior advises that proposed operations
will unreasonably impair natural resources or
the related environment, Including the fish
and wildlife and recreational values thereof,
or will reduce the quality of such waters In
violation of applicable water quality stand-
ards, the Secretary of the Army in acting on
the request for a permit will carefully evalu-
ate the advantages and benefits of the op-
erations In relation to the resultant loss or
damage, Including all data presented by the
Secretary of the Interior, and will either deny
the permit or Include such conditions in the
permit as he determines to be In the public
Interest, including provisions that will assure
compliance with water quality standards es-
tablished In accordance with law,
PROCEDURES FOR CARRYING OUT THESE POLICIES
1. Upon receipt of an application for a per-
mit for dredging, filling, excavation, or other
related work In navigable waters of the
United States, the District Engineers shall
send notices to all interested parties, includ-
ing the appropriate Regional Directors of the
Federal Water Pollution Control Administra-
tion, the United States Fish and Wildlife
Service, and the National Park Service of the
Department of the Interior, and the appro-
priate State conservation, resources, and
water pollution agencies.
2. Such Regional Directors of the Secretary
of the Interior shall immediately make such
studies and investigations as they deem nec-
essary or desirable, consult with the appro-
priate State agencies, and advise the District
Engineers whether the work proposed by the
permit applicant, including the deposit of any •
material in or near the navigable waters of
the United States, will reduce the quality of
such waters in violation of applicable water
quality standards or unreasonably Impair
natural resources or the related environment.
3. The District Engineer will hold public
hearings on permit applications whenever re-
sponse to a public notice indicates that hear-
ings are desirable to afford all Interested par-
ties full opportunity to be heard on cfbjec-
tions raised.
4. The District Engineer, In deciding
whether a permit should be Issued, shall
weigh all relevant factors in reaching his
decision. In any case where Directors of the
Secretary of the Interior advise the District
Engineers that proposed work will impair
the water quality In violation of applicable
water quality standards or unreasonably Im-
pair, the natural resources or the related
environment, he shall, within the limits of
his responsibility, encourage the applicant
to take steps that will resolve the objections
to the work. Falling In this respect, the
District Engineer shall forward the case for
the consideration of the Chief of Engineers
and the appropriate Regional Director of the
Secretary of the Interior shall submit his
views and recommendations to his agency's
Washington Headquarters.
5. The Chief of Engineers shall refer to
the Under Secretary of the Interior all those
cases referred to him containing unresolved
substantive differences of views and he shall,
Include his analysis thereof, for the purpose
of obtaining the Department of Interior's
comments prior to final determination of
the Issues.
6. In those cases where the Chief at En-
gineers and the Under Secretary are unable
to resolve the remaining Issues, the cases
will be referred to the Secretary of the Army
for decision in consultation with the Sec-
retary of the Interior.
7. If In the course of operations within
this understanding, either Secretary finds its
terms in need of modification, he may notify
the other of the nature of the desired
changes. In that event the Secretaries shall
within 90 days negotiate such amendment as
IB considered desirable or may agree upon
termination of this understanding at the end
of the period.
Dated: July 13,1967.
STEWART L. UDALL,
Secretary of the Interior.
Dated: July 13,1967.
STANLEY RESOR,
Secretary of the Army.
APPENDIX C
Application No—:
Name of Applicant
Effective Date
Expiration Date (If applicable)
DEPARTMENT OF THE ARMY
Referring to written request dated
for a permit to:
( ) Perform work In or affecting navigable-
waters of the United States, upon the recom-
mendation of the Chief of Engineers, pursu-
ant to Section 10 of the Rivers and Harbors
Act of March 3,1899 (33 U.S.C. 403);
( ) Discharge dredged or fill material Into
navigable waters upon the Issuance of a per-
mit from the Secretary of the Army acting
through the Chief of Engineers pursuant to
Section 404 of the Federal Water Pollution
Control Act (86 Stat. 816, Pi. 92-500):
( ) Transport dredged material for the
purpose of dumping it Into ocean waters
upon the issuance of a permit from the Secre-
tary of the Army acting through the Chief of
Engineers pursuant to Section 103 of the
Marine Protection, Research and Sanctuaries
Act of 1972 (88 Stat. 1062; P.L. 92-B82) J
(Here insert the full name and'address of the
permittee)
Is hereby authorized by the Secretary of the
Army: to —
(Here describe the proposed structure or ac-
tivity, and Its intended use. In the case of
an application for a fill permit, describe
the structures. If any, proposed to be
erected on the fill. In the case of an appli-
cation for the discharge of dredged or fill
material Into navigable waters or the
transportation for discharge In ocean
waters of dredged material, describe the
type and quantity of material to be dis-
charged.)
In ...
(Here to be/ named the ocean, river, harbor,
or waterway concerned.)
at . , . - ... ....
(Here to be named the nearest well-known
locality—preferably a town or city—and
the distance In miles and tenths, from some
definite point In the'same, stating whether
• above or below or giving direction by points
of compass.)
In accordance with the plans and drawings
attached hereto which are Incorporated In
and made a part of tills permit (on draw-
Ings: give file number or other definite Iden-
tification marks.) Subject to the following
conditions:
I. General conditions: a. That all activities
Identified and authorized herein shall be con-
sistent with the terms and conditions of this
permit; and that any activities not specifical-
ly Identified and authorized herein shall con-
stitute a violation of the terms and condi-
tions of this permit which may result In the
modification, suspension or revocation of
this permit, In whole or In part, as set forth
more specifically In General Conditions J or K
hereto, and in the Institution of such legal
proceedings as the United States Govern-
ment may consider appropriate, whether or
not this permit has been previously modified,
suspended or revoked hi whole or In part.
b. That all activities authorized herein
shall. If they involve a discharge or deposit
Into navigable waters or ocean waters, be at
all times consistent with applicable water
quality standards, effluent limitations and
standards of performance, prohibitions, and
pretreatment standards established pursuant
to Sections 301, 302, 306 and 307 of the Fed-
eral Water Pollution Control Act of 1972
(Pi. 92-600; 86 Stat. 816), or pursuant to
applicable State and local law.
c. That when the activity authorized here-
in Involves a discharge or deposit of dredged
or flll material into navigable waters, the au-
thorized activity shall, If applicable water
quality standards are revised or modified dur-
ing the term, of this permit, be modified, It
necessary, to conform with such revised or
FEDERAL REGISTER, VOL 40, NO. 144—FRIDAY, JULY 25, 1975
-------
31342
RULES AM5 REGULATIONS
modified water quality standards within 6
months of the effective date of any revision or
modification of water quality standards, or as
directed by an Implementation plan con-
tamed In such revised or modified standards,
or within such longer period of time as the
District Engineer, in consultation with the
Regional Administrator of the Environmental
Protection Agency, may determine to be rea-
sonable under the circumstances.
d. That the permittee agrees to make every
reasonable effort to prosecute the construc-
tion or work authorized herein in a manner
so as to minimize any adverse Impact of the
construction or work on flsh, wildlife and
natural environmental values.
e. That the permittee agrees that it will
prosecute the construction or work author-
ized herein in a manner so as to minimize
any degradation of water quality.
I t. That the permittee shall permit the Dis-
trict Engineer or his authorized representa-
tive (s) or designee(s) to make periodic In-
spections at any time deemed necessary in
order to assure that the activity being per-
formed under authority of this permit is in
accordance with the terms and conditions
prescribed herein.
g. That the permittee shall maintain the
structure or work authorize i herein in good
condition and in accordance with the plans
and drawings attached hereto.
h. That this permit does not convey any
property rights, either in real estate or ma-
terial, or any exclusive privileges; and -tliat
It does not authorize any injury to property
or Invasion of rights o* any infringement of
Federal, State, or local laws or regulations,
nor does It obviate the requirement to ob-
tain State or local assent required by law
tor the activity authorized herein.
i. That this permit does not authorize the
Interference with any existing or proposed
Federal project and tli»t the permittee shall
not be entitled to compensation for damage
or Injury to the structures or work author-
laed herein which may be caused by or result
from existing or future operations under-
taken by the United States In the public
Interest.
J. That this permit may be summarily sus-
pended, ill whole or in part, upon a finding
by the District Engineer that immediate sus-
pension at the activity authorized herein
would be in the general public interest. Such
suspension shall be effective upon receipt by
the permittee of a written notice thereof
which shall indicate (1) the extent of the
suspension, (2) the reasons for this action,
and (8) any corrective or preventatlve mea-
sures to be taken by ibe permittee which are
deemed necessary by the District Engineer to
abate Imminent hazards to the general public
Interest. Tht permittee shall take immediate
action to comply with the provisions of this
notice. Within ten days following receipt of
this notice of suspension, the permittee may
request a hearing la order to present Infor-
mation relevant to a decision as to whether
his permit should be reinstated, modified or
revoked. If a hearing is requested, it shall be
conducted pursuant to procedures pre-
scribed by the Chief of Engineers. After com-
pletion of the hearing, or within a reasonable
time after issuance of the suspension notice
to the permittee if no hearing is requested,
the permit will either be reinstated, modified
cr revoked.
k. That this permit may be either modified,
suspended or revoked in whole or In part
if the Secretary of the Army or hia author-
ized representative determines that there has
been a violation ot any of the terms or condi-
tions of this permit or that such action would
otherwise be in the public Interest. Any such
modification, suspension, or revocation shall
become effective 30 days after receipt by the
permittee of written notice of such action
which shan specify the facts or conduct war-
ranting same unless (!) within «h« 30-day
period the permittee Is able to satisfactorily
demonstrate that (a) the alleged violation ol
the terms^aad the conditions of this permit
aid not, in fact, eceur or (b) the alleged
violation was accidental, and the permittee
has -been oper ting in compliance with the
terms and conditions of, the permit and is
able to provide satisfactory assurances that
future operations shall be In full compliance
with the terms and conditions of this permit;
or (2) within the aforesaid 30-day period, the
permittee requests that a public hearing be
held to present oral and written evidence
concerning the proposed modification, sus-
pension or revocation. The conduct of this
hearing and the procedures for making a
final decision either to modify, suspend or
revoke this pemlt in whole or to part shall be
pursuant to procedures prescribed by the
Chief ef Engineers.
I, That in Issuing this permit, the Gov-
ernment has relied on the information and
data which the permittee has provided in
connection with his permit application. If,
subsequent to the issuance of this permit,
such information and data prove to be false,
incomplete or inaccurate, this permit may
be modified, suspended or revoked, in whole
or in part, and/or the Government may, In
addition, institute appropriate legal pro-
ceedings.
m. That any modification, suspension, or
revocation of this permit shall not be the
basis for any claim for damages against the
United States.
n. That the permittee shall notify the Dis-
trict Engineer at what time the activity au-
thorized herein will be commenced, as far
in advance of the time of commencement as_
the District Engineer may specify, and of any
suspension of work, If for a period of more
than one week, resumption of work and Ita
completion.
o. That If the activity authorized herein
is not started on or before day of
, 19—, (one year from the date of issu-
ance of this permit unless otherwise speci-
fied) and is not completed on or before
day of , 19—, (three years from
the date of issuance of this permit unless
otherwise specified) this permit, If not pre-
viously revoked or specifically extended, shall
automatically expire.
• p. That no attempt shall be made by the
permittee to prevent the full and free use by
the public of all navigable waters at or ad-
jacent to the activity authorized by this
permit.
q. That If the display of lights and signals
on any structure or work authorized herein
Is not otherwise provided for by law, such
lights and signals as may be prescribed by
the United States Coast Guard shall be In-
stalled and maintained by and at the expense
of the permittee.
r. That this permit does not authorize or
approve the construction of particular
structures, the authorization or approval of
which may require authorization by the Con-
gress or other agencies of the Federal
Government.
s. That if and when the permittee desires
to abandon the activity authorized herein,
unless such abandonment is part of a trans-
fer procedure by which the permittee is
transferring his interests herein to a third
party pursuant to General Condition ®
hereof, he must restore the area to a con-
dition satisfactory to the District Engineer.
t. Tiiat if the recording of tnls permit to
possible under applicable State or local law,
the permittee shall take such action as may
be necessary to record this permit with the
Register of Deeds or other appropriate official
charged with the responsibility for main-
taining records of title to and Interests In
real property.
n. Thais there shall be no wnrea3«isM»
interference with navigation by the asi-stenc^
or use of the activity aothozized herein.
v. That this permit may not be transferred
to a third party without prior written notice
to tbc District Engineer, either by the trans-
feree's written agreement to comply with all
terms and conditions of this permit or by
the transferee subscribing to this permit In
the space provided below and thereby agree-
ing to comply with all terms and conditions
of this permit. In addition, if the permittee
transfers the interests authorized herein by
conveyance of realty, the deed shall reference
this permit and the terms and conditions
specified herein and this permit shall be re-
corded along with the deed with the Register
of Deeds or other appropriate official.
II. Special Conattions: Here list conditions
relating specifically to the proposed structure
or work authorized by this permit. The fol-
lowing Special Conditions will be applicable
when appropriate:
STRUCTURES FOR SMALL BOATS: That
permittee hereby recognizes the possibility
that the structure permitted herein may be
subject to damage by wave wash from pass-
ing vessels. The issuance of this permit does
not relieve the permittee from takmg all
proper steps to insure the integrity of the
structure permitted herein and the safety of
boats moored thereto from damage by wave
wash and the permittee snail not hold the
United States liable for any such damage.
DISCHARGE OF DREDGED MATERIAL
INTO OCEAN WATERS: That the permittee
shall place a copy of this permit In a con-
spicuous place In the vessel to be used for
the transportation and/or dumping of the
dredged material as authorized herein.
ERECTION OF STRUCTURE IN OR OVER
NAVIGABLE WATERS: That the permittee.
upon receipt of a notice of revocation of this
permit or upon Its expiration before comple-
tion of the authorized structure or work,
shall, without expense to the United States
and In such time and manner as the Sec-
retary of the Army or his authorized repre-
sentative may direct, restore the waterway to
Its former conditions. If the permittee fails
to comply with the direction of the Secretary
of the Army or his authorized representative,
the Secretary or his deslgnee may restore ihs
waterway to Its former condition, by con-
tract or otherwise, and recover tbe cost
thereof from the permittee.
MAINTENANCE DREDGING: - (1} That
when the work authorized hereto Includes
periodic maintenance dredging, it ma; bo
performed under this permit for yeaia
from the date of Issuance of this permit (ten
years unless otherwise Indicated); and (2)
That the permittee wm ftdvfew the District
Engineer Ha. writing at least two weeks be-
fore lie Intends to undertake any mainte-
nance dredging.
Tftia permit s»«n become effective on the
date o* «he District Engineer's signature.
Permittee hereby accepts and agrees to
comply with the terms and conditions of this
permit.
Permittee
Date
By authority of the Secretary of the Army:
Transferee hereby agrees to comply with
the terme and conditions of thi« permit
Transferee
"Date
FEDERAL REGISTER, VOl. 40, NO. 144—FRIDAY, JUIY 25, 1975
-------
RULES AND REGULATIONS
31343
APPENDIX D—DELEGATION OP AUTHORITY To
ISSUE OB DENY PERMITS FOB CONSTRUCTION
OR OTHER WOBK APFECTING NAVIGABLE
WATERS OF THE UNITED STATES
MAT 24. 1971.
Pursuant to the authority vested In me by
the Act of March 3, 1899, c. 425, Sections 10
and 14, 30 Stat. 1151, 1152, 33 U.S.C. Sections
403 and 408, and the Act of June 13, 1902, c.
1079, Section 1, 32 Stat. 371, 33 U.S.C. Section
665, I hereby authorize the Chief of Engi-
neers and his authorized representatives to
Issue or deny permits for construction or
other work affecting navigable waters of the
United States. Except In cases Involving ap-
plications for permits for artificial islands or
fixed structures on Outer Continental Shelf
lands under mineral lease from the Depart-
ment of the Interior, the Chief of Engineers
shall, in exercising such authority, evaluate
the Impact of the proposed work on the pub-
lic Interest. In cases involving applications
tor permits for artificial Islands or fixed
structures on Outer Continental Shelf lands
under mineral lease from the Department of
the Interior, the Chief of Engineers shall, hi
exercising such authority, evaluate the Im-
pact of the proposed work on navigation and
national security. The permits so granted
may be made subject to such special condi-
tions as the Chief of Engineers or his author-
ized representatives may consider necessary
hi order to effect the purposes of the above
Acts.
The Chief of Engineers and his authorized
representatives shall exercise the authority
hereby delegated subject to such conditions
as I or my authorized representative may
from time to tune Impose.
STANLEY R. HESOR,
Secretary of the Army.
APPENDIX E—DELEGATION cr AUTHORITY TO
ISSUE OR DENY PERMITS FOR THE DISCHARGE
OP DREDGED OR FILL MATERIAL INTO NAVIGA-
BLE WATERS
MARCH 12, 1973.
Pursuant to the authority vested In me
by Section 404 of the Federal Water Pollution
Control Act Amendments of 1972, 86 Stat.
816, Pi. 92-500,1 hereby authorize the Chief
of Engineers and his authorized representa-
tives to Issue or deny permits, after notice
and opportunity for public hearings, for the
discharge of dredged or fill material Into
navigable waters at specified disposal-sites.
The Chief of Engineers shall, in exercising
such authority, evaluate the Impact of the
proposed discharge on the public Interest.
All permits Issued shall specify a disposal
site for the discharge of the dredged or fill
material through the application of guide-
lines developed by the Administrator of the
Environmental Protection Agency and my-
self. In those cases where these guidelines
would prohibit the specification oi a disposal
site, the Chief of Engineers, In his evaluation
of whether the proposed discharge Is in the
public interest. Is authorized also to con-
sider the economic impact on navigation and
anchorage which would occur by falling to
authorize the use of a proposed disposal site.
The permits so granted may be made subject
to such special conditions as the Chief of
Engineers or his authorized representatives
may consider necessary in order to effect the
purposes of the above Act, other pertinent
laws and any applicable memoranda of un-
derstanding between the Secretary of the
Army and heads of other governmental
agencies.
The Chief of Engineers and his author-
ized representative shall exercise the author-
ity hereby delegated subject to such condi-
tions as I or my authorized representative
may from time to time Impose.
KENNETH E. BELIEU,
Acting Secretary of the Army.
MARCH 12, 1973.
APPENDIX F—DELEGATION op AUTHORITY To
ISSUE OR DENY PERMITS FOR THE TRANSPOR-
TATION OF DREDGED MATERIAL FOR THE PUR-
POSE OF DUMPING rr INTO OCEAN WATERS
Pursuant to the authority vested in me
by Section 103 of the Marine Protection,
' Research, and Sanctuaries Act of 1972, 86
Stat. 1052, PL 92-532, I hereby authorize the
•Chief of Engineers and his authorized rep-
resentatives to Issue or deny permits, after
notice and opportunity for public hearings,
for the transportation of dredged material
for the purpose of lumping it In ocean
waters. The Chief of Engineers and his au-
thorized representatives shall, in exercising
such authority, evaluate the Impact of the
proposed dumping on the public Interest. .No
permit shall be Issued unless a determina-
tion is made that the proposed dumping will
not unreasonably degrade or endanger
human health, welfare, or amenities, or the
marine environment, ecological systems, or
economic potentialities. In making this de-
termination, those criteria for ocean dump-
Ing established by the Administrator of the
Environmental Protection Agency pursuant
to Section 102 (a) of the above Act which re-
late' to the effects of the proposed dumping
shall be applied. In addition, based upon an
evaluation of the potential effect which a
permit denial will have on navigation, eco-
nomic and Industrial development, and for-
eign and domestic commerce of the United
States, the Chief of Engineers or his author-
ized representative, in evaluating the per-
mit application, shall make an Independent
determination as to the need for the dump-
Ing, other possible methods of disposal, and
appropriate locations for the dumping. In
considering appropriate disposal sites, recom-
mended sites designated by the Administra-
tor of the Environmental Protection Agency
pursuant to Section 102(c) of the above Act
will be utilized to the extent feasible. Prior
to Issuing any permit, the Chief of Engineers
or his authorized representative shall first
notify the Administrator of the Environmen-
tal Protection Agency or his authorized rep-
resentative of his Intention to do so. In any
case In which the Administrator or his au-
thorized representative disagrees with the
determination of the Chief of Engineers or
his authorized representative as to com-
pliance with the criteria established pursuant
to Section 102(a) of the'above Act relating
to the effects of the dumping or with the re-
strictions established pursuant to Section
102(c) of the above Act relating to critical
areas, the determination of the Administra-
tor or his authorized representative shall pre-
vail. If, in any such case, the Chief of En-
gineers or his Director of Civil Works finds
that, in the disposition of dredged material,
there is no economically feasible method or
site available other than a dumping site the
utilization of which would result In non-
compliance with such criteria or restrictions,
he shall so certify and request that I seek a
waiver from the Administrator of the En-
vironmental Protection Agency of the specific
requirements involved. Unless the Adminis-
trator of the Environmental Protection
Agency grants a waiver, the Chief of Engi-
neers or his authorized representative shall
not Issue a permit which does not comply
with such criteria and restrictions. The per-
mits so granted may be made subject to such
special conditions as the Chief of Engineers
or his authorized representatives may con-
sider necessary In order to effect the pur-
poses of the above Act, other pertinent laws,
and any applicable memoranda of under-
standing between the Secretary of the Army
and the heads of other governmental
agencies.
The Chief of Engineers and his authorized
representative shall exercise the authority
hereby delegated subject to such conditions
as I or my authorized representative may
from time to time impose.
KENNETH E.
Acting Secretary of the Army.
APPENDIX G — TABLE OF CONTENTS AND LIST OF
APPENDICES TO § 209.120
TABLE OF CONTENTS
Paragraph
(a) Purpose.
(b) Laws Requiring Authorization of
Structures or Work,
(c) Related Legislation.
(d) Definitions.
(e) Activities Requiring Authorizations.
(f ) General Policies for Evaluating Permit
Applications.
(g) Policies on Particular Factors of Con-
sideration.
(1) Interference with Adjacent Properties
or Water. Resource Projects.
(2) Non-Federal Dredging for Navigation.
(3) Effect on Wetlands.
(4) Pish and Wildlife.
(5) Water Quality.
(6) Historic, Scenic, and Recreational
Values.
(7) Structures for Small Boats,
(8) Aids to Navigation.
( 9 ) Outer Continental Shelf.
(10) Effect on Limits oi the Territorial Sea.
(11) Canals and Other Artificial Waterways
Connected to Navigable Waters.
(12) Unauthorized Activities.
(13) Facilities at the Borders of the United
States.
(14)' Aerial Power Transmission Lines.
(15) Seaplane Operations.
(IS) Foreign Trade Zones.
(17) Discharge of Dredged Pill Material In
Navigable Waters or Dumping of
Dredged Material in Ocean Waters.
(18) Activities In Coastal Zones and Marine
Sanctuaries.
(h) Applications for Authorizations.
(1) Processing Applications for Permits.
(1) Standard Procedures.
(2) Procedures for Particular types of
Permit. Situations.
(3) Timing of Processing of Applications.
(j) Public Notice and Coordination with
Interested Parties.
(k) Public Meetings.
(1) Environmental Impact Statement.
(m) Forms of Authorizations.
(n) Duration of Authorizations.
(o) Modification, Suspension or Revoca-
tion of Authorizations.
(p) Authority to Issue or Deny Authoriza-
tions.
(q) Supervision and Enforcement.
(r) Publicity.
(s) Reports.
KDERAL REGISTER, VOL 40, NO. 144—fRIDAY, JULY 25, 1975
-------
31344-31428 RULES AND REGULATIONS
MBT Or APPENDICES
Appendix A—Army/Coast Guard Memoran-
dum of Agreement dtd 18
April 1973.
Appendix B—Army/Interior Memorandum
of Understanding dtd 13
July 1967.
Appendix C—Permit Form.
Appendix D—Delegation of Authority to Is-
sue or Deny Permits for Con-
struction or Other Work Af-
fecting Navigable Waters of
the United States dtd 24 May
1971.
Appendix E—Delegation of Authority to Is-
sue or Deny Permits for Dis-
charge of Dredged Fill Ma-
terial into Navigable Waters
atd 12 March 1973.
Appendix F—Delegation of Authority to Is-
sue or Deny Permits for the
Transportation of Dredged
Material for the Purpose of
Bumping It. Into Ocean
Waters dtd 12 March 1973.
Appendix G—Table of contents and list of
appendices to § 209.120.
[FRDoc.75-19455 Filed 7-24-75;8:45 am]
KOERAL KGISTEI, VOL 40, NO, 144—IMOAY. WVf S5. »S7«
-------
.B-l
APPENDIX B
Many of the types of hydrologic modifications considered require
dredging during their implementation or during their operation. For
navigable waterway segments, it will be necessary to comply with require-
ments outlined in the information included in this Appendix, which covers
testing of the material that it is proposed to dredge and deposit in
spoil areas. The proposed guidelines, as published, are subject to
revision and publication in final form in the Federal Register. When
this occurs, the final version will replace the one included in this
Appendix. Prior to using the incorporated regulations, the appropriate
Regional Office, Environmental Protection Agency, should be contacted
i
to ensure it is still current, or to obtain the latest version, if one
is available.
-------
FRIDAY, SEPTEMBER 5, 1975
PART II:
ENVIRONMENTAL
PROTECTION
AGENCY
NAVIGABLE WATERS
Discharge of Dredged
or Fill Material
-------
41292
RULES AND REGULATIONS
Title 40—Protection of the Environment
CHAPTER I—ENVIRONMENTAL
PROTECTION AGENCY
[FBL 421-1]
PART 230—NAVIGABLE WATERS
Discharge of Dredged or Fill Material
The Administrator of the Environ-
mental Protection Agency (EPA) ' on
May 6, 1975, proposed guidelines, pur-
suant to section 404 (b) of the .Federal
Water Pollution Control Act Amend-
ments of 1972, Pub. L. 92-500 (herein-
after, "the. Act"), for the purpose of pro-
viding guidance to be applied in evalu-
ating proposed discharge of dredged or
fill material in navigable waters. The
guidelines were developed in conjunction
with the Army pursuant to section
404 (b) of the Act.
Written comments were to be sub-
mitted to the Environmental Protection
Agency by June 6, 1975. This date was
extended to June 30 and consideration
has been given to all comments received.
The guidelines are applicable to all
activities involving the discharge of
dredged or fill material in navigable
waters, defined in the Act to mean "the
waters of the United States, including the
territorial seas." Such discharges are un-
lawful except in compliance with per-
mits issued by the Secretary of the Army,
acting through the Chief of Engineers,
afte- notice and opportunity for public
hearings (see 33 CFR 209.120, "Permits
for Activities in Navigable Waters or
Ocean Waters," published by the Corps
of Engineers in the FEDERAL REGISTER on
July 25, 1975). These guidelines are ap-
plicable to all Federal projects or activi-
ties, just as they are applicable to any
other project or activity involving a dis-
charge of dredged or fill materials.
Interim final guidelines are being pub-
lished in order to provide immediate
guidance in the implementation of the
permit program under section 404 of the
Act. While these guidelines become effec-
tive upon publication, there will be an
additional comment period of 90 days in
order that the public may comment fur-
ther qn any of its provisions. Thereafter*
these comments will be reviewed and the
guidelines modified if necessary.
The development of a permit program
.to regulate the discharge of dredged ma-
terial and fill material in all waters of
the United States has been the subject
of intensive discussions between the En-
vironmental Protection Agency and the
Corps of Engineers, as well as other Fed-
eral and State agencies and the public.
We have worked together in an effort to
develop a program that is manageable,
responsive to the concerns of protecting
vital national water resources from de-
struction through irresponsible and ir-
reversible decisions, and sensitive to the
often conflicting needs and desires of
people who utilize these resources. We
have attempted to create a program that
recognizes the need to interweave all con-
cerns of the public in the decision-
making process; that recognizes that
present limitations on manpower pre-
clude its immediate implementation
throughout the country; and that we be-
lieve to be responsive to the overall objec-
tives and needs of the Federal Water
Pollution Control Act.
Section 230.1 summarizes the purpose
and scope of the guidelines. Section 230.2
and Appendix A contain definitions to be
used in the application of the guidelines
in the program under section 404 of the
Act.
The procedures for evaluating the dis-
charge of dredged or fill material are
outlined in § 230.3. This section is in-
tended to emphasize that each provision
of § § 230.4 and 230.5 must be applied in
reaching one of the following determina-
tions: (1) Allowing the proposed dis-
charge with appropriate discharge con-
ditions to minimize unacceptable effects
on the aquatic environment; (2) deny-
ing the proposed discharge when the dis-
charge will have an unacceptable1 effect
on the aquatic environment; or (3) re-
questing additional information where
necessary to ensure a sound decision.
Section "230.4 presents general ap-
proaches for technical evaluation of dis-
charges of dredged or fill material. Sec-
tion 230.4-1 describes the types of eco-
logical effects that may result from the
discharge of dredged or fill material and
technical approaches which are available
to evaluate such effects where appropri-
ate. Section 230.4-2 explains the consid-
erations that will be given to water
quality standards.
Section 230.5 presents objectives and
considerations lor evaluating proposed
sites and for conditioning discharges so
as to minimize harmful effects when the
disposal site can be approved. All pro-
posed discharges will be analyzed by ap-
plication of each provision presented.
Section 230.6 provides guidance on the
use of general permits for categories of
discharge activities that will have only
minimal effect on the aquatic environ-
ment. Section 230.7 encourages advanced
study of aquatic areas to identify those
areas of critical ecological concern and
those areas that are less sensitive. It is
expected that, where practicable, ad-
vanced identification of such areas will
facilitate planning and improve evalua-
tion of individual and general permits.
State and local implementation of ad-
vanced planning through mechanisms
such as Coastal Zone Management Pro-
grams will significantly contribute to the
success of these studies.
The following analysis summarizes key
comments received on various sections
of the proposed guidelines and presents a
rationale for the changes made:
(1) Several commenters suggested that
the guidelines lack a strong committment
to the spirit of the law by failing to place
strict controls on the discretionary power
given to the District Engineers. The na-
tionwide application of a single set of
guidelines to a variety of discharge ac-
tivities in a myriad of different aquatic
systems requires that the permitting
agency retain the discretion to adapt the
approaches and considerations in the
guidelines to local conditions. However,
many of the approaches and considera-
tions have been rewritten to clarify that
discharges will not be allowed if it is de-
termined that the proposed discharge
will result in unacceptable harm to the
aquatic system.
(2) Several comments indicated con-
fusion over the organization of the guide-
lines. The guidelines have been reorga-
nized, renumbered and retitled to pro-
vide greater clarity and utility.
(3) Many commenters objected to the
execution of raw material extraction
from the section 404 permit system. The
Corps of Engineers regulations and the
guidelines now recognize that the dis-
charge of material extracted and proc-
essed on shipboard is included in the
section 404 program, while discharges
from land-based processing are included
in the National Pollutant Discharge
Elimination System under section 402 of
the Act.
(4) Most of the comments concerned
technical analytical procedures, the
adequacy of using the results as a de-
scription of constituents actually con-
tained in sediments, whether constitu-
ents measured are actually available to
aquatic organisms and humans, and the
criteria for evaluating technical analyses.
In addition to the comments volunteered
by the interested public, we sought opin-
ions of experts in each of the above areas
of concern. All comments indicated that
at this time none of the tests specified in
the proposed guidelines can be used on a
nationwide basis to examine all sedi-
ments thought to contain toxic sub-
stances. However, each of the technical
evaluations specified in the proposed
guidelines can be used meaningfully un-
der some disposal conditions. Since there
is no single technical evaluation available
for nationwide use, additional physical
analysis, bloassays, and biological eval-
uations have been added. Technical eval-
uations should be required only when a
case-by-case review indicates that the
results will provide information neces-
sary to reach a final decision.. When used
carefully, the results of an appropriate
technical evaluation in a given case will
serve as one of many factors Involved in
the decision-making process. The En-
vironmental Protection Agency, in con-
junction with the Corps of Engineers will
publish a procedures manual to provide
details on technical evaluations. Interim
technical guidance is available from the
District Engineers.
(5) A number of commenters criticized
the apparent lack of State participation
in the permit program. It has never been
the intention of this Agency or the Corps
of Engineers to exclude the States from
this program.
First, since each discharge of dredged
or fill material into a navigable water is,
in effect, the discharge of a pollutant Into
the water, a State water quality certifica-
tion is required under section 401 of the
Act before that discharge can be lawfully
undertaken. Provision has therefore been
made in the Corps of Engineers regula-
tions (see 40 CFR 209.120(f) (3)) to In-
dicate this legal requirement. Thus any
State may cause the denial of a section
404 permit if it chooses to deny a water
quality certification. Similar situations
also exist In those States with approved
FEDERAL REGISTER, VOL. 40, NO. 173—FRIDAY, SEPTEMBER 5, 1975
-------
RULES AND REGULATIONS
41293
Coastal Zone Management Programs: An
individual in States with such programs
must also certify that Ills activity will
comply with the approved plan. On the
other hand, where the State does not
have such a certification program or de-
lays the processing of its certification,
the Corps of Engineers will still begin to
process the section 404 permit. In absence
of a timely response from the State, the
section 404 permit will be processed to
a conclusion.
Second, we are aware that some States
have existing permit programs to regu-
late the same types of activities that will
be regulated through section 404 of the
Act by the Corps of Engineers. To the
extent possible, it is our desire to support
the State in its decision. Thus, where a
State denies a permit, the Corps will not
issue a section 404 permit. On the other
hand, if a State issues a permit, the
Corps would not deny its permit unless
there are overriding environmental fac-
tors as reflected in these guidelines. We
believe that conflicting decisions will be
minimized if State permit programs in-
clude the policies, procedures, goals, re-
quirements, and objectives embodied in
the Corps permit program (see 40 CPR
209.12
-------
41294
RULES AND REGULATIONS
logical evaluation following the guidance
in § 230.4, including technical evalua-
tion where appropriate, in conjunction
with the evaluation considerations spec-
ified in § 230.5. This evaluation shall be
utilized by the District Engineer in mak-
ing one of the following determinations
pursuant to section 404 (b) (1) of, the
Act:
(1) Allowing the proposed discharge
with appropriate discharge conditions to
minimize unacceptable effects on the
aquatic environment;
(2) Denying the proposed discharge
when the discharge will have an un-
acceptable effect on the aquatic environ-
ment;
(3) Requesting additional information
where necessary to ensure a sound
decision.
(e) The District Engineer shall make
use of the following approaches where
practicable: Short form application
procedures as may be subsequently de-
veloped by the Chief of Engineers for
minor activities with minimal environ-
mental effects; use of general permit
procedures (see § 230.6); and. advance
identification of disposal areas (see
§ 230.7). Evaluation of the proposed dis-
charge will also be made based on in-
formation contained in Environmental
Impact Assessments, Environmental
Impact Statements if required, Coastal
Zone Management Programs, and River
Basin Plans.
§ 230.4 General approaches for techni-
cal evaluation.
The effects of discharges of dredged
or fill material on aquatic organisms and
human uses of navigable waters may
range from insignificant disruption to ir-
reversible change at the disposal site.
Section 230.4-1 describes the types of
ecological effects that may result from
the discharge of dredged or fill material
and technical approaches to evaluate
such effects.' Ecological impact from
dredged or fill material discharges can be
divided into two main categories: (a)
physical effects; and (b) chemical-bio-
logical interactive effects.
§ 230.4-1 Physical and chemical-biolog-
ical interactive effects and approaches
for evaluation.
No single test or approach can be ap-
plied in all cases to evaluate the effects of
proposed discharges of dredged or fill
material. Evaluation of the significance
of physical effects often may be made
without laboratory tests by examining
the character of the dredged or fill ma-
terial proposed for discharge and the
discharge area with particular emphasis
on the principles given in § 230.5. The
chemical changes in water quality may
best be simulated by use of an elutriate
test. To the extent permitted' by the
state of the art, expected effects such as
toxicity, stimulation, inhibition or bio-
accumulation may best be estimated by
appropriate bioassays. Suitability of the
proposed disposal sites may be evaluated
by the use, where appropriate, of sedi-
ment analysis or bioevaluation. In order
to avoid unreasonable burdens on appli-
cants in regard to the amounts and types
of data to be provided, consideration will
be given by the District Engineer to the
economic cost of performing the evalua-
tion, the utility of the data to be pro-
vided, and the nature and magnitude of
any potential environmental effect. EPA
in conjunction with the Corps of Engi-
neers will publish a procedures manual
that will'cover summary and description
of tests, definitions, sample collection and
preservation, procedures, calculations,
and references. Interim guidance to ap-
plicants concerning the applicability of
specific approaches or procedures will be
furnished by the District Engineer.
(a) Physical Effects. Physical effects
on the aquatic environment include the
potential destruction of wetlands, im-
pairment of the water column, and the
covering of benthic communities. Other
physical effects include changes in bot-
tom geometry and substrate composition
that cause subsequent alterations in
water circulation, salinity gradients and
the exchange of constituents between
sediments and overlying water with sub^
sequent alterations of biological com-
munities. (See § 230.5 of these guide-
lines.)
(1) From a national perspective, the
degradation or destruction of aquatic
resources by filling operations in wet-
lands is considered the most severe en-
vironmental impact covered by these
guidelines. Evaluation procedures for
determining the environmental effects of
fill operations in wetlands are relatively
straight forward. The guiding principle,
should be that destruction of highly pro-
ductive wetlands may represent an' ir-
reversible loss of a valuable aquatic re-
source. (See 33 CFR 209.120 (g) (3) and
230.5 of these guidelines.) Wetlands con-
sidered to perform important functions
include but are not limited to the fol-
lowing:
(i) Wetlands that serve important
natural biological functions, including
food chain production, general habitat,
and nesting, spawning, rearing and rest-
ing sites for aquatic or land species;
(ii) Wetlands set aside for study of
the aquatic environment or as sanctu-
aries of refuges;
(iii) Wetlands contiguous to areas
listed in paragraphs (a) (1) (i) and (ii)
of this section, the destruction or altera-
tion of which would affect detrimentally
the natural drainage characteristics,
sedimentation patterns, salinity distribu-
tion, flushing characteristics, current
patterns, or other environmental char-
acteristics of the above areas;
(Iv) Wetlands that are significant in
shielding other areas from wave action,
erosion or storm damage. Such wetlands
often include barrier beaches, islands,
reef sand bars;
(v) Wetlands that serve as valuable
storage areas for storm and flood waters;
and
(vi) Wetlands that are prime natural
recharge areas. Prime recharge areas are
locations where surface and ground
water are directly interconnected.
(2) Effects on the water column are
principally those associated with a re-
duction in light transmission, aesthetic
values, and direct destructive effects on
nektonic and planktonic populations.
The significance of water column physi-
cal effects are not readily predicted by
current technical approaches.
(3) The effect on benthos is essentially
the covering of benthic communities with
a subsequent change in community struc-
ture or function. It has been noted that
the benthic community often will re-
establish, although sometimes of a some-
what different ecological structure.
Evaluation of the significance of the ef-
fect on the benthic community can be
estimated prior to the discharge activity
from a knowledge of the hydrodynamics
of the disposal site, mode of discharge,
volume of materials, particle size dis-
tribution and types of dredged or fill
material, and from a knowledge of the
benthic community.
(b) Chemical-biological interactive ef-
fects. Ecological perturbation caused by
chemical-biological interactive effects
resulting from discharges of dredged or
fill material is very difficult to predict.
Research performed to date has not
clearly demonstrated the extent of chem-
ical-biological interactive effects result-
ing from contaminants present in the
dredged or fill material. The principal
concerns of open water discharge of
dredged or fill material that contain
chemical contaminants are the poten-
tial effects on the water column or on
benthic communities.
(1) Evaluation of chemical-biological
interactive effects. Dredged or fill mate-
rial may be excluded from the evalua-
tion procedures specified in paragraphs
(b) (2) and (3) of this section if any of
the conditions specified in paragraphs
(b) (1) (i), (ii) or (iii) of this section are
determined to exist, unless the District
Engineer, after evaluating and consider-
ing any comments received from the Re-
gional Administrator, determines that
these approaches and procedures are
necessary. The Regional Administrator
may require, on a case-by-case basis,
testing approaches and procedures by
stating what additional information is
needed through further analyses and
how the results of'the analysis will be
of value in evaluating potential envi-
ronmental effects. Dredged or fill mate-
rial may be excluded from this evalua-
tion, if:
(i) Dredged or fill material is com-
posed predominantly of sand, gravel, or
any other .naturally occurring sedimen-
tary material with particle sizes larger
than silt/characteristic of and generally
found in areas of high current or wave
energy such as streams with large bed
loads or coastal areas with shifting bars
and channels;
(ii) Dredged or fill material Is for
beach nourishment or restoration and is
composed predominantly of sand, gravel
or shell with particle sizes compatible
with material on receiving shores; or
(iii) When:
(a) The material proposed for dis-
charge is substantially the same as the
substrate at the proposed disposal site;
and
(6) The site from which the material
proposed for discharge is to be taken is
FEDERAL REGISTER, VOL. 40, NO. 173—FRIDAY, SEPTEMBER 5, 1975
-------
RULES AND REGULATIONS
41295
sufficiently removed from sources of pol-
lution to provide reasonable assurance
that such material has not been contami-
nated by,such pollution; and
(c) Adequate terms and conditions are
imposed on the discharge of dredged or
fill material, to provide reasonable as-
surance that the material proposed for
discharge will not be moved by currents
or otherwise in a manner that is dam-
aging to the environment outside the dis-
posal site.
(2) Water column effects. Sediments
normally contain constituents that exist
in different chemical forms and are found
In various concentrations in several lo-
cations within the sediment. The poten-
tially bioavailable fraction of a sediment
is dissolved in the sediment, interstitial
water or in a loosely bpund'form that is
present in the sediment. In order to pre-
dict the effect on water quality due to
release of contaminants from the sedi-
ment to lihe water column, an elutriate
test may be used. The elutriate is the
supernatant resulting from the vigorous
30-minute shaking of one part bottom
sediment from the dredging site with
four parts water (vol./vol.) collected
from the dredging site followed by one-
hour settling time and appropriate cen-
trifugation and a 0.45u filtration. Major
constituents to be analyzed in the elu-
triate are those deemed critical by the
District Engineer, after evaluating and
considering any comments received from
the Regional Administrator, and consid-
ering known sources of discharges in the
area and known characteristics of the
extraction and disposal sites. Elutriate
concentrations should be used in con-
junction with, the same constituents in
disposal site water and other data which
describe the volume and rate of the in-
tended discharge, the type of discharge,
the hydrodynamic regime at the disposal
site, and other available information that
aids in the evaluation of impact on water
quality (see § 230.5 of. these guidelines).
The District Engineer may specify bio-
assays when he determines that such pro-
cedures will be of value. In reaching this
determination, dilution and dispersion
effects subsequent to the discharge at the
disposal site will be considered.
(3) Effects on benthos. Evaluation of
the significance of chemical-biological
interactive effects on benthic organisms
resulting from the discharge of dredged
or fill material is extremely complex and
demands procedures which are at the
forefront of the current state of the art.
Although research has shown that ben-
thic species can ingest contaminated
sediment particles, it has not been de-
termined to what degree the contami-
nants are dissociated from the sediment
and incorporated into benthic body tis-
sues thereby gaining entry to the food
web. The District Engineer may use an
appropriate benthic bioassay when such
procedures will be of value in assessing
ecological effect and in establishing dis-
charge conditions.
(c) Procedure for comparison of sites.
(1) When an inventory of the total
concentration of chemical constituents
Seemed critical by the District Engineer
would be of value in comparing sediment
at the dredging site with sediment at the
disposal site, he may require a total sedi-
ment chemical analysis. Total sediment
analysis is accomplished by concentrated
strong acid digestion or solvent extrac-
tion for inorganic and organic constitu-
ents respectively. Markedly different
concentrations of critical constituents
between the excavation and disposal sites
may aid in making an environmental
assessment of the proposed disposal
operation.
(2) When an analysis of biological com-
munity structure will be of value to as-
sess the potential lor adverse environ-
mental impact at the proposed disposal
site, a comparison of the biological char-
a,cteristics between the excavation and
disposal sites may be required by the Dis-
trict Engineer. Biological indicator spe-
cies may be useful in evaluating the ex-
isting degree of stress at both sites. Sen-
sitive species -representing community
components colonizing various substrate
types within the sites should be identified
as possible bioassay organisms if tests for
toxicity are required. Community struc-
ture studies are expensive and time con-
suming, and therefore should be per-
formed only when they will be of value
in determining discharge conditions.
This is particularly applicable to large
quantities of dredged material known to
contain adverse quantities of toxic ma-
terials. Community studies should in-
clude benthic organisms such as micro-
biota and harvestable shellfish and
finfish. Abundance, diversity, and distri-
bution should be documented and corre-
lated with substrate type and other ap-
propriate physical and chemical environ-
mental characteristics.
§ 230.4—2 Water quality considerations.
After application of the approaches
presented in § 230.4, the District Engi-
neer will compare the concentrations of
appropriate constituents to applicable
narrative and numerical guidance con-
tained in such water quality standards
as are applicable by law. In the event
that such discharge would cause a viola-
tion of such appropriate and legally ap-
plicable standards at the perimeter of the
disposal site after consideration of the
mixing zone (see §230.5(e)) discharge
shall be prohibited.
§ 230.5 Selection of disposal sites and
conditioning of discharges of dredged
or fill material.
(a) General considerations and objec-
tives. In evaluating, whether to permit a
proposed discharge of dredged or fill ma-
terial into navigable waters, considera-
tion shall be given to the need for the
proposed activity (see 33 CFB 209.120
and 33 CFR 209.145), the availability of
alternate sites and methods of disposal
that are less damaging to the environ-
ment, and such water quality standards
as are appropriate and applicable by law.
The following objectives shall be con-
sidered in making a determination on
any proposed discharge:
(1) Avoid discharge activities that
significantly disrupt the chemical, phys-
ical and biological integrity of the aqua-
tic ecosystem, of which aquatic biota, the
substrate, and the normal fluctuations of
water level are integral components;
(2) Avoid discharge activities that
significantly disrupt the food chain in-
cluding alterations or decrease in diver-
sity of plant and animal species;
(3) Avoid discharge activities that in-
hibit the movement of fauna especially
their movement into and out of feeding,
spawning, breeding and nursery areas;
(4) Avoid discharge activities that will
destroy wetland areas having significant
functions in maintenance of water
quality;
(5) Recognize that discharge activities
might destroy or isolate areas that serve
the function of retaining natural high
waters or flood waters;
(6) Minimize, where practicable, ad-
verse turbidity levels resulting from the
discharge of material;
(7) Minimize discharge activities that
will degrade aesthetic, recreational, and
economic values;
(8) Avoid degradation of water quality
as determined through application of
§ 230.4, 230.5 (c) and (d).
(b) Considerations relating to deg-
radation of water uses at proposed dis*
posal sites—(1) Municipal water supply
intakes. No disposal site may be desig-
nated in the proximity of a public water
supply intake. The District Engineer and
the Regional Administrator will deter-
mine the acceptable location of the dis-
posal site in such cases.
(2) Shellfish, (i) Disposal sites for
dredged or fill material shall not be desig1
nated in areas of concentrated shellfish
production. In the case of widely dis-
persed shellfish populations where it is
demonstrated by the applicant that the
avoidance of shellfish population areas is
impossible the disposal site may be
located within such areas, but should be
situated so as to cause the least impact
on the shellfish population with partic-
ular reference to the burial of living
forms and maintenance of a suitable
substrate.
(ii) Disposal sites should be located to
minimize or prevent the possible move-
ment of pollutants by currents or wave
action into productive shellfish beds.
(ill) Banks formed by dredged or fill
material should be located and oriented
to prevent undesirable changes in cur-
rent patterns, salinity patterns and
flushing rates which may affect shellfish.
(iv) The disposal operation should be
scheduled to avoid interference with re-
productive processes and avoid undue
stress to juvenile forms of shellfish.
(3) Fisheries, (i) Significant disrup-
tions of fish spawning and nursery areas
should be avoided.
(ii) Dredging and disposal operations
should be scheduled to avoid interfer-
ence with fish spawning cycles and to
minimize interference with migration
patterns and routes.
(iii) Consideration shall be given to
preservation of submersed and emergent
vegetation.
(4) Wildlife. Disposal sites will be
designated so as to mhrmize the impact
FEDERAL REGISTER, VOL. 40, NO. 173—FRIDAY, SEPTEMBER S, 1975
-------
41296
RULES AND REGULATIONS
on habitat, the food chain, community
structures of wildlife, and marine or
. aquatic sanctuaries.
(5) Recreation activities. In evaluating
proposed discharges of dredged or fill
material in or near recreational areas,
the following factors should be con-
sidered:
(i) Reasonable methods should be em-
ployed to minimize any increase in
amount and duration of turbidity which
would reduce(the numbers and diversity
of flsh or cause a significant aesthetically
displeasing change in the color, taste, or
odor of the water.
(ii) Release of nutrients from dredged
or fill material should be minimized in or
to prevent eutrophication, the degrada-
tion of aesthetic values, and impairment
of recreation uses.
(Hi) No material that will result in
unacceptable levels of pathogenic or-
ganisms shall be discharged in areas
used for recreation involving physical
contact with the water.
(iv) No material shall be discharged
which will release oil and grease in
harmful quantities as defined in 40 CFR
110.
(6) Threatened and endangered spe-
cies. No discharge will be allowed that
will jeopardize the continued existence of
threatened or endangered species or de-
stroy or modify the habitat of those spe-
cies determined critical in accordance
with the Endangered Species Act.
(7) Benthic life. Disposal sites should
be areas where benthic life which might
be damaged by the discharge is minimal
recognizing that enhancement may also
occur. Use of existing disposal sites is.
generally desirable.
(8) Wetlands, (i) Discharge of dredged
material in wetlands may be permitted
only when it can be demonstrated that
the site selected is the least environ-
mentally damaging alternative; pro-
vided, however, that the wetlands dis-
posal site may be permitted if the ap-
plicant is able to demonstrate that other
alternatives are not practicable and that
the wetlands disposal will not have an
unacceptable adverse impact on the
aquatic resources. Where the discharge
is part of an approved Federal program
which will protect or enhance the value
of the wetlands to the ecosystem, the
. site may be permitted.
' (ii) Discharge of fill material in wet-
lands shall not be permitted unless the
applicant clearly demonstrates the fol-
lowing:
(a) the activity associated with the fill
must have direct access or proximity to,
or be located in, the water resources in
order to fulfill its basic purpose, or that
other site or construction alternatives
are not practicable; and
(10 that the proposed fill and the ac-
tivity associated with it will not cause a
permanent unacceptable disruption to
the beneficial water quality uses of the
affected aquatic ecosystem, or that the
discharge is part of an approved Federal
program which will protect or enhance
the value of the wetlands to the ecosys-
tem.
(9) Submersed Vegetation. Disposal
sites shall be located to minimize the im-
pact, on submersed grassflats (for exam-
ple Thalassia and Zoster a beds) and
other areas containing submersed vege-
tation of significant biological productiv-
ity.
(10) Size of disposal site. The specified
disposal site shall be confined to the
smallest practicable area consistent with
the type of dispersion determined to be
appropriate by the application of these
guidelines. Although the impact of the
particular discharge may constitute a
minor change, the cumulative effect of
numerous euch piecemeal changes often
results in a major impairment of the
water resource and interferes with the
productivity and water quality processes
of existing environmental systems. Thus,
the particular disposal site will be eval-
uated with the recognition that it is part
of a complete and interrelated ecosystem.
The District Engineer may undertake
reviews of particular areas in response
to new applications, and in consultation
with the appropriate Regional Director
of the Pish and Wildlife Service, the Re-
gional Director *of the National Marine
Fisheries Service of the National Oceanic
and Atmospheric Administration, the
Regional Administrator of the Environ-
mental Protection Agency, the State
Conservationist of the Soil Conservation
Service of the Department of Agricul-
ture, and -the head of the appropriate
State agencies, including the State Di-
rector of an approved Coastal Zone Man-
agement Program, to assess the cumula-
tive effect of activities in such areas.
(c) The following may also be consid-
ered in determining the site and disposal
conditions to minimize the possibility of
harmful effects:
(1) Appropriate scientific literature,
such as the National Water Quality Cri-
teria developed by the Administrator,
pursuant to section 304 (a) (1) of the Act;
(2) Alternatives to open water dis-
posal such as upland or confined dis-
posal;
(3) Disposal sites where physical en-
vironmental characteristics are most
amenable to the type of dispersion de-
sired;
(4) Disposal seaward of the baseline
of the territorial sea;
,(5) Covering contaminated dredged
material with cleaner material;
.(6) Conditions to minimize the effect
of runoff from confined areas on the
aquatic environment; and
(7) The Regional Administrator may
specify appropriate monitoring condi-
tions in proximity of disposal sites where
necessary to control and minimize water
quality degradation, pursuant to Section
308 of the Act.
(d) Contaminated fill material re-
strictions. The discharge of fill material
originating from a land source shall not
be allowed when the District Engineer
determines that the material contains
unacceptable quantities, concentrations
or forms of the constituents deemed crit-
ical by the District Engineer or the Re-
gional Administrator for the proposed
disposal site, unless such material is ef-
fectively confined to prevent the dis-
charge, leaching, or erosion of the ma-
terial outside the confined area. Appro-
priate approaches in 230.4 may be used
in making this determination.
(e) Mixing zone determination. The
mixing zone shall be the smallest prac-
ticable mixing zone within each speci-
fied disposal site, consistent with the ob-
jectives of these guidelines, in which de-
sired concentrations of constituents must
be achieved.
The District Engineer and the Regional
Administrator shall consider the follow-
ing factors in determining the accepta-
bility of a proposed mixing zone:
(1) Surf ace area, shape and volume of
the discharge site;
(2) Current velocity, direction and
consistency at the discharge site;
(3) Degree of turbulence;
(4) Stratification attributable to
causes which include without limitation
salinity, obstructions, and specific grav-
ity;
(5) Any on-site studies or mathemati-
cal models which have been developed
with respect to mixing patterns at the
discharge site; and
(6) Such other factors prevailing at
the discharge site that affect rates and
patterns of mixing.
§ 230.6 General or categorical permits.
(a) The District Engineer upon com-
pliance with the procedures of 33 CFR
209.120 may issue a general permit for a
clearly described category of discharge
activities if he determines that the cate-
gory meets the following conditions:
(1) The activities included in the
category are substantially similar in na-
ture; and
(2) The activities included in the
category have substantially similar im-
pact on water quality and the aquatic
system, and the adverse impact on water
quality and the aquatic system is mini-
mal for each discharge activity; and
(3) The cumulative impact of the total
number of activities predicted to occur
during the period authorized by the per-
mit, is expected to have only minimal
adverse effect on water quality and the
aquatic system.
(b) The District Engineer, may con-
dition general permits to require dis-
chargers to submit the following infor-
mation at least 45 days prior to com-
mencement of the discharge of dredged
or fill material:
(1) The name and address of the
discharger.
(2) The location of the contemplated
activity including the name and general
description of the receiving waters, in-
cluding wetlands, and the size of the area
to be filled-
(3) A brief description of the proposed
activity, its purpose and intended use,
including a description of the type of
structures, if any, to be erected on fills.
(4) A description of the type, com- '
position, and quantity of materials to be
discharged and means of conveyance.
(5) A copy of other Federal, State, and
local government authorizations ob-
tained including a State water-quality
FEDERAL REGISTER, VOL 40, NO. 173—FRIDAY, SEPTEMBER 5, 1975
-------
certification under Section 401 of the
Federal Water Pollution Control Act and,
where applicable, a certification of com-
pliance with an approved State Coastal
Zone Management Program pursuant to
Section 307(c)(3) of the Coastal Zone
Management Act.
(c) If reporting is required the Dis-
trict Engineer shall record the individ-
ual disposal site as authorized and au-
thorization will occur automatically 30
days after receipt of notification unless
the applicant is otherwise notified by the
District Engineer.
(d) A general permit may be revoked
completely or partially by the District
Engineer independently or on the advice
of the Regional Administrator, if he de-
termines that the discharges of dredged
or fill material' authorized by it or the
cumulative effects thereof will have an
adverse impact on water quality and the
aquatic sytem. Following revocation, any
discharges of dredged or fill material in
areas formerly covered by the general
permit shall be processed as individual
permits under this regulation.
§ 230.7 Advanced identification of
dredged material disposal areas.
(a) The District Engineer and the
Regional. Administrator, after consulta-
tion with the affected State or States,
may at their discretion and consistent
with the guidelines, identify areas which
will be considered as:
(1) Possible future disposal sites; or
(2) Areas which will not be available
for disposal site specification.
(b) The identification of any area as a
possible future disposal site shall not be
deemed to constitute a permit for the dis-
charge of dredged or fill material with-
in such areas, but may be used in
evaluating individual or general permit
applications.
(c) A record of areas so identified
shall be maintained at the offices of the
District Engineer and the Regional Ad-
ministrator.
(d) To provide the basis for advanced
identification of disposal areas and of
areas not available for disposal, the
Regional Administrator and the District
Engineer should assess waterbodies to
determine those areas which are of criti-
cal ecological concern, those which are
of environmental concern, and non-
sensitive areas. To facilitate this
analysis, they should assemble water re-
source management data including such
data as may be available from the other
Federal and State agencies listed in
f 230.5(b) (10) and information from ap-
proved Coastal Zone Management Pro-
grams and River Basin Plans.
§ 230.8 Revision.
The provisions of these guidelines will
be periodically reviewed by the Adminis-
trator in conjunction with the Secretary
of the Army pursuant to section 404(b)
(1) of the Act. The guidelines may not
be modified without approval of the Sec-
retary of the Army and the Administra-
tor. Any proposed revisions, or notice
that a review has been completed and no
revisions are proposed, will be published
in the FEDERAL REGISTER within three
RULES AND REGULATIONS
years of the date of this initial promulga-
tion or earlier as determined by research
results and affirmed by the Administra-
tor in conjunction with the Secretary of
the Army.
APPENDIX A
DEFINITIONS FROM 33 CFR 209.120, "PERMITS
FOR WORK IN NAVIGABLE WATERS OR
OCEAN WATERS"
(1) "Navigable waters of the United
States." The term, "navigable waters of
the United States," is administratively
defined to mean waters that have been
used in the past, are now used, or are
susceptible to use as a means to transport
interstate commerce landward to their
ordinary high water mark and up to the
head of navigation as determined by the
Chief of Engineers, and also waters that
are subject to the ebb and flow of the tide
shoreward to their mean high water
mark (mean higher high water mark on
the Pacific Coast). See 33 CFR 20'9.260
(ER 1165-2-302) for a more definitive
explanation of this term.
(2) "Navigable waters", (i) The term,
"navigable waters," as used herein for
purposes of Section 404 of the Federal
Water Pollution Control Act, is admin-
istratively defined to mean waters of the
United States including the territorial
seas with respect to the disppsal of fill
material and excluding the territorial sea
with respect to the disposal of dredged
material and shall include the following
waters:
(a) Coastal waters that are navigable
waters of the United States subject to
the ebb and flow of the tide, shoreward
to their mean high water mark (mean
higher high water mark on the Pacific
coast);
(b) All coastal wetlands, mudflats,
swamps, and similar areas that are con-
tiguous or adjacent to other navigable
waters. "Coastal wetlands" includes
marshes and shallows and means those
areas periodically inundated by saline or
brackish waters and that are normally
characterized by the prevalence of salt
or brackish water vegetation capable of
growth and reproduction;
(c) Rivers, lakes, streams, and arti-
ficial water bodies that are navigable
waters of the -United States up to their
headwaters and landward to their ordi-
nary high water mark;
(d) All artificially created channels
and canals used for recreational or other
navigational purposes that are connected
to other navigable waters, landward to
their ordinary high water mark;
(e) All tributaries of navigable waters
of the United States up tor their head-
waters and landward to their ordinary
high water mark;
(f) Interstate waters landward to
their ordinary high water mark and up
to their headwaters;
(g) Intrastate lakes, rivers and streams
landward to their ordinary high water
mark and up to their headwaters that are
utilized:
(1) By interstate travelers for water-
related recreational purposes;
(2) For the removal of fish that are
sold in interstate commerce;
41297
(3) For industrial purposes by indus-
tries in interstate commerce; or
(4) In the production of agricultural
commodities sold or transported in in-
terstate commerce;
(h) Freshwater wetlands including
marshes, shallows, swamps and, similar
areas that are contiguous or adjacent to
other navigable waters and that support
freshwater vegetation. "Freshwater wet-
lands" means those areas that are pe-
riodically inundated and that'are nor-
mally characterized by the prevalence of
vegetation that requires saturated soil
conditions for growth and reproduction;
and
(i) those other waters which the Dis-
trict Engineer determines necessitate
regulation for the protection of water
quality as expressed in the guidelines
(40 CFR 230). For example, in the case
of intermittent rivers, streams, tribu-
taries, and perched wetlands that are
not contiguous or adjacent to navigable
waters identified in paragraphs (a)-(h)
a decision on jurisdiction shall be made
by the District Engineer. '
(ii) The followng additional terms are
defined as follows:
(a) "Ordinary high water mark" with
respect to inland fresh water means the
line on the shore established by analysis
of all daily high waters. It is established
as that point on the shore that is inun-
dated 25% of the time and is derived by
a flow-duration curve for the particular
water body that is based on available wa-
ter stage data. It may also be estimated
by erosion or easily recognized charac-
teristics such as 'shelving, change in the
character of the soil, destruction of ter-
restrial vegetation or its inability to
grow, the presence of litter and debris, or
other appropriate means that consider
the characteristics of the surrounding
area;
(b) "Mean high water mark" with re-
spect to ocean and coastal waters means
the line on the shore established by the
average of all high tides (all higher high
tides on the Pacific Coast). It is estab-
lished by survey based on available tidal
data (preferably averaged over a period
of 18.6 years because of the variations in
tide). In the absence of such data, less
precise methods to determine the mean
high water mark may be used, such as
physical markings or comparison of the
area, in question with an area having
similar physical characteristics for
which tidal data are already available;
(c) "Lakes" means natural bodies of
water greater than five acres in surface
area and all bodies of standing water
created by the impounding of navigable
waters identified in paragraphs (a)-(h),
above. Stock watering ponds and settling
basins that are not created' by such im-
poundments are not included;
(d) "Headwaters" means the point on
the stream above which the flow is nor-
mally less han 5 cubic feet per second;
provided, however, the volume of flow,
point and nonpoint source discharge
characteristics of the watershed, and
other factors that may impact on the
water quality of waters of the United
States will be considered in determining
this upstream limit; and
FEDERAL REGISTER, VOL. 40, NO. 173—FRIDAY, SEPTEMBER 5, 1975
-------
41298
RULES AND REGULATIONS
(e) "Primary tributaries" means the
main stems of tributaries directly con-
necting to navigable waters of the United
States up to their headwaters and does
not include any additional tributaries
extending off of the main stems of these
tributaries.
(3) "Ocean waters". The term "ocean-
waters," as defined in the Marine Protec-
tion, Research, and Sanctuaries Act of
1972 (Pub. L. 92-532), 86 Stat. 1052),
means those waters of the open seas ly-
ing seaward of the base line from which
the territorial sea is measured as pro-
vided for in the Convention on the Ter-
ritorial Sea and the Contiguous Zone (15
UST 1606; TIAS 5639).
(4) "Dredged material". The term
"dredged material" means material that
is excavated or dredged from navigable
waters. The term does not include mate-
rial resulting from normal farming,
silviculture, and ranching activities, such
as plowing, cultivating, seeding, and har-
vesting, for production of food, fiber, and
forest products.
(5) "Discharge of dredged material".
The term "discharge of dredged mate-
rial" means any addition of dredged
material, in excess of one cubic yard
when used in a single or incidental opera-
tion, into navigable waters. The term in-
cludes, without limitation, the addition
of dredged material to a specified dis-
posal site located in navigable waters and
tile runoff or overflow from a contained
land or water disposal area. Discharges
of pollutants into navigable waters re-
sulting from the onshore subsequent
processing of dredged material that is ex-
tracted for any commercial use (other
than fill) are not included within this
term and are subject to section 402 of
the Federal Water Pollution Control Act
even though the extraction of such mate-
rial may require a permit from the Corps
of Engineers under section 10 of the
River and Harbor Act of 1899.
(6) "Fill material." The term "fill
material" means any pollutant used to
create fill in the traditional sense of re-
placing an aquatic area with dry land or
of changing the bottom elevation of a
water body for any purpose. "Fill mate-
rial" does not include the following:
(i) Material resulting from normal
farming, silviculture, and ranching ac-
tivities, such as plowing, cultivating,
seeding, and harvesting, for the produc-
tion of food, fiber, and forest products;
(ii) Material placed for the purpose of
maintenance, including emergency re-
construction of recently damaged parts of
currently serviceable structures such as
dikes, dams, levees, groins, riprap, break-
waters, causeways, and bridge abutments
or approaches, and transportation struc-
tures;
(iii) Additions to these categories of
activities that are not "fill" will be con-
sidered periodically and these regulations
amended accordingly.
(7) "Discharge of fill material." The
term "discharge of fill material" means
the addition of fill material into navi-
gable waters for the purpose of creating
fastlands, elevations of land beneath
navigable waters, or for impoundments
of water. The term generally includes,
without limitation, the following activi-
ties in a navigable water: placement of
fill that is necessary to the construction
of any structure; the building of any
structure or impoundment requiring
rock, sand, dirt, or other pollutants for its
construction; site-development fills for
recreational, industrial, commercial, resi-
dential, and other uses; causeways or
road fills; dams and dikes; artificial is-
lands, property protection and/or rec-
lamation devices such as riprap, groins,
seawalls, breakwalls, and bulkheads and
fills; beach nourishment; levees; sani-
tary landfills; fill for structures such as
sewage treatment facilities, intake and
outfall pipes associated with power
plants, and subaqueous utility lines; and
artificial reefs.
[PR Doc.75-23351 Piled 9-4-75;8:45 am]
FEDERAL REGISTER, VOL. 40, NO. 173—FRIDAY, SEPTEMBER 5, 1975
-------
C-l
APPENDIX C
-------
WEDNESDAY, MAY 2, 1973
WASHINGTON. D.C.
Volume 38 • Number 84
Pages 10789-10908
PART I
(Part II begins on page 10855)
(Part III begins on page 10867)
HIGHLIGHTS OF THIS ISSUE
This listing does not affect the legal status
of any document published in this issue. Detailed
table of contents appears inside.
OIL IMPORTS—
Oil Policy Committee sets guidelines for Appeals Board;
effective 5-1-73 10811
Interior Dept grants Appeals Board jurisdiction to grant
certain allocations, effective 5-2-73 10811
LICENSING OF FUEL REPROCESSING PLANTS—
AEC proposes to add provisions for categories of tech-
nical specifications; comments by 7—2—73 10815
AEC issues guide to help applicants develop technical
specifications '. 10831
ENVIRONMENT—
Council on Environmental Quality requests comments
by 6-18-73 on revised guidelines for impact state-
ments 10855
EPA proposals on emissions standards for new station-
ary sources and certification of low-noise products (2
documents) 10820, 10821
EPA.policy statement on wetlands _. 10834
EPA pollution test results on 1973 model motor
vehicles .,._..: 10867
GYPSY MOTH QUARANTINE—USDA changes list of haz-
ardous mobile home parks 10795
COMMUNITY ACTION PROGRAMS—OEO regulations on
use of funds and facilities for union activities; effective
6-1-73 10809
PRE-COLOMBIAN ART—Customs Bur. adopts importation
regulations, effective 6-1-73 10807
AIR FREIGHT—CAB proposed rules on COD shipments
and foreign charters (2 documents), comments by
6-1-73 _ 10816,. 10817
ANIMAL DRUGS—FDA approves use of preparations for
dogs and eattle (2 documents); effective 5-1-73 10808
(Continued Inside)
Jto.Wk-Ptl-
-------
10S34
NOTICES
shall set forth specific objections to the
revocation, in part, of order 72-5-100 and
the grounds in support therefor. If no
exceptions are filed within said 15-day
period, ordering paragraph 1 shall be-
come final without further order of the
Board. If exceptions are filed within said
15-day period, further proceedings in
connection therewith shall be conducted
in such manner as the Board may deem
appropriate;
3. An investigation is instituted to de-
termine whether the level of regular
fares, the relationship of first-class fares
to second-class fares, and the level and
structure of discount fares in the U.S.
mainland-Hawaii market and rules, reg-
ulations, or practices affecting such fares
and provisions are unjust, unreasonable,
unjustly discriminatory, unduly prefer-
ential, unduly prejudicial or otherwise
unlawful, and if found to be unlawful,
to determine and prescribe the lawful
fares and provisions, and rules, regula-
tions, and practices affecting such fares
and provisions;
4. Except to the extent granted herein,
the petition of Pan "American World Air-
ways filed in docket 22364 is dismissed;
and
5. Copies of this order be served upon
American Airlines, Inc., Braniff Airways,
Inc., Continental Air Lines, Inc., North-
west Airlines, Inc., Pan American World
Airways, Inc., Trans World Airlines, Inc.,
United Air Lines, Inc., and Western Air
Lines, Inc., who are hereby made parties
to the investigation ordered herein, and
upon all parties to docket 22364.
This order will be published in the
FEDERAL REGISTER.
By the Civil Aeronautics Board.
[SEAL] EDWIN Z. HOLLAND,
Secretary.
[FB Doe.73-8564 Filed 5-l-73;8:45 am]
COMMISSION ON THE BANKRUPTCY
LAWS OF THE UNITED STATES
NOTICE OF MEETINGS
The Commission on the Bankruptcy
Laws of the United States will meet be-
tween the hours of 10 a.m. and 5 p.m. on
May 17, 1973, in the law library of the
Rayburn House Office Building and be-
tween those same hours on May 18 and
19, in room 2148 of the Rayburn Build-
ing. Unresolved questions concerning the
proposed chapters on reorganizations,
the bankruptcy court, the initiation of
proceedings, the allowance and priority
of claims, and the collection and liqui-
dation of estates will be considered.
FRANK R. KENNEDY,
Executive Director,
[FR Doc.73-8529 Filed 5-l-73;8:45 am]
COMMITTEE FOR PURCHASE OF
PRODUCTS AND SERVICES OF
THE BLIND AND OTHER SE-
VERELY HANDICAPPED
PROCUREMENT LIST OF 1973
Notice of Proposed Deletions
Notice is hereby given pursuant to sec-
tion 2(a)(2) of Public Law 92-28, 85
Stat. 79, of the proposed deletion of the
following commodities from Procure-
ment List 1973, March 12, 1973 (38 FR
6742).
COMMODITIES
CLASS 7920
Broom, Upright:
7920-292-2368
7920-292-2369
7920-292-4370
Brush, Sanitary:
7920-141-5450
Comments and views regarding these
proposed deletions may be filed with the
Committee on or before May 31, 1973.
Communications should be addressed to
the Executive Director,- Committee for
Purchase of Products and Services of the
Blind and Other Severely Handicapped,
2009 14th Street North, Suite 610, Ar-
lington, Va, 22201, •
By the Committee,
CHARLES W. FLETCHER,
Executive Director;
[FB Doc.73-8688 Filed 5-l-73;8:45 am]
ENVIRONMENTAL PROTECTION
AGENCY
PROTECTION OF NATION'S WETLANDS
Policy Statement
Purpose.—The purpose of this state-
ment is to establish EPA policy to pre-
serve the wetland ecosystems and to pro-
tect them from destruction through
waste water or nonpoint source dis-
charges and their treatment or control
or the development and construction of
waste water treatment facilities or by
other physical, chemical, or biological
means.
The wetland resource.—a. Wetlands
represent an ecosystem of unique and
major importance to the citizens of this
Nation and, as a result, they require ex-
traordinary protection. Comparable de-
structive forces would be expected to in-
flict more lasting damage to them, than
to other ecosystems. Through this policy
statement, EPA establishes appropriate
safeguards for the preservation and pro-
tection of the wetland resources.
b. The Nation's wetlands. Including
marshes, swamps, bogs, and other low-
lying areas, which during some period of
the year will be covered in part by nat-
ural nonflood waters, are a unique, val-
uable, irreplaceable water resource. They
jserve as a habitat for important fur-
bearing mammals, many species of fish,
and waterfowl. Such areas moderate ex-
tremes in waterflow, aid in the natural
purification of water, and maintain and
recharge the ground water resource.
They are the nursery areas for a great
number of wildlife and aquatic species
and serve at times as the source of val-
uable harvestahle timber. 'They are
unique recreational areas, high in aes-
thetic value, that contain delicate and
irreplaceable specimens of fauna and
flora and support fishing, as well as wild-
fowl and other hunting.
c. Fresh-water wetlands support the
adjacent or downstream aquatic ecosys-;
tern in addition to the complex web ol
life that has developed within the wet^
land environment. The relationship of.
the fresh-water wetland to the subsur-'
face environment Is symbiotic, intricate,
and fragile. In the tidal wetland areas
the tides tend to redistribute the nutri--.
ents and sediments throughout the tidal
marsh and these in turn form a substrate '.,
for the life supported by the tidal marsh.
These marshes produce large quantities.
of plant life that are the source of much
of the organic matter consumed by shell- '
fish and other aquatic life in associated-
estuaries.
d. Protection of wetland areas requires
the proper placement and management
of any construction activities and con-
trols of nonpoint sources to prevent dis-
turbing significantly the terrain and im-
pairing the quality of the wetland area.
Alteration in quantity or quality of the
natural flow of water, which nourished
the ecosystem, should be minimized. The
addition of harmful waste waters or
nutrients contained in such waters should
be kept below a level that will alter the
natural, physical, chemical, or biological
integrity of the wetland area and that
will insure no significant increase in nui-,
sance organisms through biostimulation.'
Policy.—a. In its decision processes, it
shall be the Agency's policy to give
particular cognizance and consideration
to any proposal that has the potential to
damage wetlands, to recognize the irre-
placeable value and man's dependence on
them to maintain an environment ac- '
ceptable to society, and to preserve and.
protect them from damaging misuses.
b. It shall be the Agency's policy to,
minimize alterations in the quantity or'
quality of the natural flow of water that
nourishes wetlands and to protect wet-"
lands from adverse dredging or filling
practices, solid waste management prac-
tices, siltation or the addition of
pesticides, salts, or toxic materials arising
from nonpoint source wastes and through
construction activities, and to prevent
FEDERAl REGISTER, VOL 38, NO. 84—WEDNESDAY, MAY 2, 1973
-------
NOTICES 10835
violation of applicable water quality
standards from such environmental
Insults.
c. In compliance with the National En-
"vironmental Policy Act of 1969, it shall
. -be the policy of this Agency not to grant
•;. Federal funds for the construction of
"municipal waste water treatment facili-
ties or other waste-treatment-associated
appurtenances which may interfere with
the existing wetland ecosystem, except
where no other alternative of lesser en-
vironmental damage is found to be feasi-
ble. In the application for such Federal
funds where there is reason to believe
that wetlands will be damaged, an assess-
ment will be requested from the applicant
that delineates the various alternatives
that have been investigated for the con-
trol or treatment of the waste water, in-
cluding the reasons for rejecting those.
'^alternatives not used. A cost-benefit ap-
f.praisal should be Included where appro-
priate.
d. To promote the most environmen-
tally protective, measures, it shall be the
EPA policy to advise those applicants who
. install waste treatment facilities under a
Federal grant program or as a result of a
Federal permit that the selection of the
- most environmentallyprotective alterna-
tive should be made. The Department of
the Interior and the Department of Com-
merce will be consulted to aid in the
determination of the probable impact of
the pollution abatement program on the
pertinent, fish and wildlife resources of
wetlands. In the event of projected
significant adverse environmental im-
pact, a public hearing on the wetlands is-
sue may be held to aid in the selection of
the most appropriate action, and EPA
may recommend against the issuance of a
section 10 Corps of Engineers permit.
Implementation.—EPA will apply this
policy to the extent of its authorities in
conducting all program activities, includ-
ing regulatory activities, research, devel-
opment "and demonstration, technical as-
sistance, control of pollution from Fed-
eral institutions, and the administration
of the construction and demonstration
Brants, State program grants, and plan-
ning grants programs.
WILLIAM D. RUCKELSHATJS,
Administrator.
MARCH 20, 1973.
JPB Doc.73-8579 Piled 5-l-73;8:45 am]
FEDERAL REGISTER, VOL. 38, NO. 84—WEDNESDAY, MAY 2, 1973
------- |