CLEAN WATER ACT
SECTION 404
ENFORCEMENT COMPENDIUM

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SECTION 404(f)(1)(2) EXEMPTIONS
40 CFR 232.3 ACI1VITIES NOT REQUIRING PERMITS
(a) Discharge of dredged or fill material which contains a toxic pollutant listed under
Section 307 is subject to toxic effluent standards and shall require a Section 404 permit.
(b) Any discharge of dredged or fill material into waters of the United States incidental to
any of the activities listed in (C) of this section must have a permit if it is part of an
activity whose purpose is to convert area of waters of the U.S. into a use to which it
was riot oreviously subject, where the flow or circulation of waters of the U.S. may be
impaired or the reach of such waters reduced .
Where the proposed discharge will result in significant discernable alterations of flow
or circulation, the presumption is that flow or circulation may be impaired by such
alteration.
Note. For example, a permit will be required for the conversion of a cypress swamp to
some other use , or the conversion of a wetland from silviculture to agriculture use
when there is a discharge of liii material into waters of the U.S. in conjunction with
constiuction of dikes, drainage ditches, or other works or sauctures used to effect such
conversion.
A conversion of Section 404 wetLand to a non wetland is a chance in use of an area of
waters of the U.S.
A discharge which elevates the bottom of waters of the U.S. without convening it to
dry land does not thereby reduce the reach of. but may alter the flow. or circulat nr. of
waters of the U.S.
(c) The following activities are exempt from Section 404 permitting requirements except as
specified in paragraphs (a) arid (b) of this section:
1. Normal farmin2. silviculture and ranching activities such as lowtng, seeding,
cultivating, minor drainage...
a. To fall under this exemption the activities must be part of an establi ned (i e.
on £oin ) farming, silviculture, or ranching operation.
b. Activities which brinf an area into farming . sjlvicuLture, or ranching use are not
part of an established operation . An operation ceases to be established when the
area in which it was conducted has been coverted to another use or has lain idle
so long that modifications to the hydrologicaL regime are necessary to resume
operation.
2. Mainienanç ..of currently servicable structures such as dikes, dams,
levees...
3 Consuuction or maintenance of farm or stock nds.. .
4. Construction of temporary sedimentation basins...
5. Any activity with respect to an approved Section 208(b)(4) program...

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6. CO StTUCUOn or maintenance of farm roads. foj ç roads , or temporary
roads...when consuucted in accordance with MPs and flç , chemical, and
biological characteristics of waters are not imi,aired and reach of waters
not reduced...
(d) Definitions
I. Cultivating
2. Harvesting
3. Minor drainage...does not include cons uction of canal, dike, or ditches or any
other waterway which drains or significantly modifies a stream, lake, swamp, bog,
or any other wetland or aquatic area constituting waters of the U.S.
4. Plowing
5. Seedin2...Lncludes placement of soil beds for seedlings on establLshed farm and
forest lands.
(e) Federal projects under Section 4.04(r) are exempt.

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INDEX: CLEAN WATER ACT SECTION 404 ENFORCEMENT COMPENDIUM
I. Statutory Authorities
I-i. Clean Water Act
- Section 308 (33 U.S.C. §1318) Records and Reports; Inspections
- Section 309 (33 U.S.C. §1319) Enforcement
- Section 404 (33 U.S.C. § 1344) Permits for Dredged or Fill Material
1-2. Food Security Act of 1985- PL 99-198 (16 U.S.C. § 3801-3862) Wetlands
Conservation Provision (including swampbuster and sodbuster provisions) [ Reserved
due to length - Index Provided]
1-3. Coastal Wetlands, Planning, Protection, and Restoration Act of 1990 - PL 10 1-646
Title III (16 U.S.C. § 3951-3956)
1-4. Emergency Wetlands Resources Act of 1986 (PL 99-645) (16 U.S.C. § 3901-3932
1-5. North American Wetlands Conservation Act of 1989 (16 U.S.C.A. § 4401-4413)
[ Reserved due to length]
1-6. Coastal Zone Management Act (16 U.S.C. § 1451-1464) [ Reserved due to length -
Index Provided]
1-7. Executive Order 12630 - “The President Governmental Actions and 1ntei ference with
Constitutionally Protected Property Rights,” 3/15/88, 53 fB 8859 (3/18/88)
1-8. Executive Order 11990 - “Protection of Wetlands,” 5/24/77, 42 , 26961
II. Memoranda of Afreement
11-1. Enforcement
“Modification to the January 19, 1989, Department of the Army/Environmental
Protection Agency Memorandum of Agreement Concerning Federal Enforcement for
the Section 404 Program of the Clean Water Act.” 2/15/94
“Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning Federal Enforcement for the Section 404
Program of the Clean Water Act.” 1/19/89
11-2. Mitigation
“Memorandum of Agreement Between the Environmental Protection Agency and the
Department of the Army Concerning the Determination of Mitigation Under the Clean
Water Act Section 404(b)(1) Guidelines.” 2/6/90
Section 404(b)(1) Guidelines Mitigation MOA “Questions and Answers.”

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11-3. Permitting
“Memorandum of Agreement Between the Department of the Army and the
Enyironmental Protection Agency Concerning Previously-Issued Corp Permits.”
1/19/89
11-4. Solid Waste
“Memorandum of Agreement Between the Assistant Administrators for External
Affairs and Water, U.S. Environmental Protection Agency, and the Assistant Secretary
of the Army for Civil Works Concerning Regulation of Discharge of Solid Waste
Under the Clean Water Act.” 1/17/86
11-5. Geographic Jurisdiction/Exemptions
“Amendment to the January 19, 1989, Department of the Army/Environmental
Protection Agency Memorandum of Agreement Concerning the Determination of the
Geographic Jurisdiction of the Section 404 Program and the Application of the
Exemptions Under Section 404(f) of the Clean Water Act.” 1/4/93
“Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning the Determination of the Geographic
Jurisdiction of the Section 404 Program and the Application of the Exemptions Under
Section 404(f) of the Clean Water Act.” 1/19/89
Memorandum: “Effects of the Amendment to the Army/EPA Geographic Jurisdiction
Memorandum of Agreement on Wetland Delineations and Pending Enforcement
Actions.” 1/14/93
11-6. . Agricultural Lands
“Memorandum Of Agreement: Among the Department of Agriculture, the
Environmental Protection Agency, the Department of the Interior, and the Department
of the Army; Concerning the Delineations of Wetlands for Purposes of Section 404 of
the Clean Water Act and subtitle B of the Food Security Act.” 1/6/94
Press Release: “New Agreement Among Four Federal Agencies Makes soil
conservation Service the Lead Agency for Wetlands on Agricultural Lands.” 1/6/94
Fact Sheet: Memorandum of Agreement for Wetland Delineations on Agricultural
Lands.”
Memorandum: “Questions and Answers related to the Implementation of the January
6, 1994 Interagency Memorandum of Agreement Concerning the Delineation of
Wetlands for Purposes of Section 404 of the Clean Water Act and Subtitle B of the
Food Security Act.” 3/16/94
11-7. Section 404(q)
“Memorandum of Agreement Between the Environmental Protection Agency and the
Department of the Army” 8/11/92 -

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“Memorandum of Agreement Between the Department of Commerce and the
Department of the Army. 8/1 1/92
“Memorandum of Agreement Between the Department of the Interior and the
Department of the Army.” 12/21/92
11-8. Field Level Memorandum of Agreement, COE (Pittsburgh District) and EPA (Region
III), “Concerning Surveillance/Enforcement Action Under Section 404 of the Clean
Water Act.
11-9. Field Level Memorandum of Agreement, COE (Baltimore District) and EPA (Region
III), “Concerning Surveillance/Enforcement Action Under Section 404 of the Clean
Water Act.
11-10. Field Level Memorandum of Agreement, COE (Philadelphia District) and EPA (Region
III), “Concerning Surveillance/Enforcement Action Under Section 404 of the Clean
Water Act.
11-11. Field Level Agreement, COE (New England Division) and EPA (Region I),
“Concerning Enforcement Under Section 404 of the Clean Water Act.”
11-12. Interagency Agreement, FWS (State College Field Office) and EPA (Region III),
“Assistance in the administration of the Section 404 enforcement program.”
11-13. Interagency Agreement, FWS (Chesapeake Bay Field Office) and EPA (Region III),
“Assistance in the administration of the Section 404 enforcement program.”
11-14. Interagency Agreement, FWS (Cortland Field Office) and EPA (Region II), “Detail of
FWS personnel to EPA.”
11-15. Local Procedures Agreement, COE (Buffalo District) and EPA (Region II), “The
Cooperative Enforcement of Section 404 of the Clean Water Act.”
III. Regulations
111-1. Department of the Army - Corps of Engineers
33 CFR 320-330 (As amended by 58 45008 - Tulloch Rule)
33 CFR 230
111-2. Environmental Protection Agency
40 CFR 230-233 (As amended by 58 , 45008 - Tulloch Rule)
(As amended by 58 , 8172 - Clean Water Act; Section
404 Tribal Regulations)

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111-3 Environmental Protection Agency - Department of the Army (Corps of Engineers)
58 , 45008 - Tulloch Rule
111-4 Environmental Protection Agency
58 , 8172 - Clean Water Act; Section 404 Tribal Regulations
IV. Guidances/Policies
IV-1. RGL 90-7 “Clarification of the Phrase ‘Normal Circumstances’ as it Pertains to
Cropped Wetlands.” 9/26/90 (Qs and As)
IV-2. RGL 92-1 “Federal Agencies Roles and Responsibilities” 5/13/92
IV-3. RGL 93-2 “Guidance on the Flexibility of the Section 404(b)(1) Guidelines”
8/23/93
“Appropriate Level of Analysis Required for Evaluating Compliance
with the Section 404(b)(1) Guidelines Alternatives Requirements.”
“Establishment and Use of Wetland Mitigation Banks in the Clean
Water Act Section 404 Regulatory Program.”
IV-4. RGL 94-1 “Expiration of Geographic Jurisdictional Determinations” 5/23/94
(Extends RGL 90-6)
IV-5. RGL 94-2 “Superfund Projects” 8/17/94
IV-6. Department of the Army, “Corps of Engineers Wetlands Delineation Manual,”
Technical Report No. Y-87-1, (January, 1987) [ Reserved due to length]
IV-7. FWS/EPA/COE/SCS, “Federal Manual for Identifying and Delineating Jurisdictional
Wetlands,” (January, 1989) [ Reserved due to length]
IV-8. Department of the Army, Memorandum for See Distribution: Questions and Answers
on the 1987 Manual, (10/7/91)
IV-9. Department of the Army, Memorandum for See Distribution: “Clarification and
Interpretation of the 1987 Manual,” (3/8/92)
IV-10. EPA - Memorandum from Gerald Yamada, Acting General Counsel, U.S. EPA to
Josephine Cooper, Asst. Adm. for External Affairs, U.S. EPA, “Issues Concerning the
Interpretation of 404(f) of the Clean Water Act,” 2/8/85
IV- 11. EPA/COE “Guidance on Judicial Civil and Criminal Enforcement Priorities” 12/90

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IV-12. Memorandum from LaJuana S. Wilcher, Assistant Administrator for Water and James
M. Strock, Assistant Administrator for Enforcement, U.S. EPA, to Regional
Administrators, “Clean Water Act Section 404 Administrative Penalty Actions,
Guidance on Calculating Settlement Amounts. (12/14/90)
IV-13. Letter from Major General Arthur E. Williams, Director of Civil Works, U.S. Army
Corps of Engineers, to Hon. John Turner, Director, U.S. FWS - Guidance on how the
Corps must consider how any listed species under ESA may be affected by issuance
of a 404 permit - 11/27/91
IV-14. U.S. Fish and Wildlife Service - Mitigation Policy - 46 f 7644-63 (1981)
IV-15. U.S. Army Corps of Engineers - Memorandum for See Distribution, “Clean Water
Act Section 404 Jurisdiction Over Isolated Waters in Light of Tabb Lakes v. U.S.”
1/24/90
IV-16. U.S. Army Corps of Engineers - Memorandum for the Field: “Clean Water Act
Section 404 Regulatory Programs and Agricultural Activities” (5/3/90)
IV-17. U.S. EPA Region III - “Wetlands Enforcement Strategic Plan”
IV-18. EPA Wetlands Fact Sheets (See Index at Beginning of Fact Sheet Section)

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.7
I. WETLAND PROTECTION STATUTORY AUTHORiTIES

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I-i
Clean Water Act Sections 308 and 309
(33 U.S.C. § 1318 and 1319)
(Information Gathering and Enforcement)

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33 § 1317
FWPCA 3Q7
CODE OF FEDERAL REGULATIONS
Effluent ude1wes md standards, see 40 CPR Chap. 1. Subcha.p.
N
Guidelines establishing test procedures for analys is of poUutanu.
see 4OCFR 12$ietseq.
Public hesrwgs on effluent standards for tore poilutants, see 40
CFR 104.1 st seq.
Tore pollutsac efThLSOt Staild 5idI, see 40 CFP. 1291 et seq.
ADMINISTRATIVE LAW
Sepsnuoe of lunebocs In rulemaking p oceduris, see Koch 472.
LAW REVIEW COMMENTARIES
Congressional ambiguity aflows EPA ’s safety valv, to remain
open. 35 Catholic U L.Rmr 595 (1955).
Economizing on the sins of our pu Cleaning op our hazardous
wastes. Barbara Ann White, 25 Houston LReV 899(1988).
LIBRARY REFERENCES
Health and Environment em2&7(12).
C.J.S. Health and Environm.nt tO’? St seq.
1318. Records and reports; Lnspections
(FWPCA § 308)
(a) Malntenaince monitoring equlpment enU7 access
to inforiastloit
Whenever required to carry out the objective of
this chapter, including but not limited to (1) develop-
ing or assisting in the development of any effluent
limitation, or other limitation, prohibition, or ef-
fluent standard, pretzeatinent standard, or standard
of performance under this chapter; (2) deterrr ’mmg
whether any person is in violation of any such
effluent limitation, or other limitation, prohibition or
effluent standard, pretiesiment standard, or stan-
dard of performance; (3) any requirement estab-
lished under this section; or (4) carrying out sec-
tions 1315, 1321, 1342,1344 (relating to State permit
programs), 1345, and 1364 of this title—
(A) the Administrator shall require the owner
or operator of any point source to (1) establish and
maintain such records, (ii) make such reports, (lii )
install, use, and maintain such monitoring equip-
408
ment or methods (including where appropriate,
biological monitoring methods), ( iv) sample such
effluents (in accordance with such methods, at
such locations, at such intervals, and in such
manner as the Administrator shall prescribe), and
(v) provide such other information as he may
reasonably require; and
(B) the Adrrunistrator or his authorized repre-
sentative (including an authorized contractor act-
ing as a representative of the Administrator),
upon presentation of his credentials—
(I) shall have a right of entry to, upon, or
through any premises in which an effluent
source is located or in which any records re-
quired to be maintained under clause (A) of this
subsection are located, and
(II) may at reasonable times have access to
and copy any records, inspect any monitoring
equipment or method required under clause (A),
and sample any effluents which the owner or
operator of such source is required to sample
under such clause.
(b) AvailabIlity to pubile trade secrets exceptiosu pen-
alty (or disclosure of confidential Information
Any records, reports, or information obtained un-
der this section (1) shall, in the case of effluent
date, be related to any applicable effluent limita-
tions, toxic, pretreatment, or new source perfor-
mance standards, and 42) shall be available to the
public, except that upon a showing satisfactory to
the Atlnunistrator by any person that records, re-
ports, or information, or particular part thereof
(other than effluent data), to which the Admin tra-
tor has access under this section, if made public
would divulge methods or processes entitled to pro-
tection as trade secrets of such person, the Adninia-
trator shall consider such record, report, or informa-
tion, or particular portion thereof confidential in
accordance with the purposes of section 1905 of
Thie 18. Any authorized representative of the Ad-
miuisb ’ator (including an authorized contractor act-
ing as a representative of the Mministrator) who
knowingly or willfully publishes, divulges, discloses,
or makes known in any manner or to any extent not
authorized by law any information which is required
to be considered confidential under this subsection
shall be fined not more than $1,000 or imprisoned
not more than 1 year, or both. Nothing in this
subsection shall prohibit the Administrator or an
authorized representative of the 4ihi imstraWr (in-
chiding any authorized contractor acting as a repre-
sentative of the Administrator) from disclosing rec-
ords, reports, or information to other officers, em-
ployees, or authorized representatives of the United
SELECTED ENVIRONMENTAL LAW STAT ”FES
Employee protection. deliberate v toLationa by employee, see section
136 of this title
Enforcement of provisions of thit chapter. see section 1319 of this
title
Federal facilities pollution contioL exemption from provisionS of
this chapter other than this section, see section 1323 of thus
title
fllegüty of pollutant discharges except when in compliance with
this section see section 1311 of this title.
Judicial review Of /id flistr$Ccr ’S Actions, IS. section 1369 of this
title
Non.prohibted discharge of dredged or fill material. see section
1344 of this title
Notice of ac000 brought with respect to violation of this section,
see section 1366 of this title
Notice of action on proposed toxic effluent standard required by
thus section, see sectiOn 1314 of this title
Permit. for discharge of pollutants, see section 13.42 of thus title
Stat. permit programs, see section 1342 of this title

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‘z.
409
States concerned with carrying out this chapter or
when relevant in any proceeding under this chapter.
(C) AppliCaXiOfl of State law
Each State may develop and submit to the Adznin-
istrator procedures under State law for inspection,
monitoring, and entry with respect to point sources
located in such State. If the Adnunistrator finds
that the procedures and the law of any State relat-
ing to inspection, monitoring, and entry are applica-
ble to at least the same extent as those required by
this section, such State is authorized to apply and
enforce its procedures for inspection, monitoring,
and entry with respect to point sources located in
such State (except with respect to point sources
owned or operated by the United States).
(d) Access by Congress
Notwithstanding any limitation contained in this
section or any other provision of law, all inforTfla-
ton reported to or otherwise obtained by the Ad-
ministrator (or any representative of the Adminis-
trator) under this chapter shall be made available,
upon written request of any duly authorized com-
mittee of Congress, to such committee.
(June 30, 1948, cli. 758, tle III, § 308, as added Oct. 18,
1972, Pub.L 92-500, § 2,86 Stat. 858, and amended Dec.
Z7, 1917, Pub.L. 95—217, * 67(cXl), 91 Stat 1606; Feb. 4,
1987, Pub.L. 100—4, TItle Ill, § 310, TItle IV, § 406(d)(1),
101 Stat. 41, 73.)
CROSS REFERENCES
Enforcament acnon for nolsOon of say condibon which imple-
mente this secOon. see sec on 1319 of this tle.
Guidelines for use of imminent hasard, enforcement, sad emergen-
cy response suthori es, see ecssn 9606 of TItle 42. The
Public Health sad Wetfsze.
Non-prohibited discharge of dredged or ll insterlel. see section
1344 of this ntis.
Permits for discharge of pollutente, see secdoa 1342 of this ntis.
33 § 1319
FWPCA § 309
§ 1319. Enforcement [ FWPCA § 309]
(a) State enforcement compliance orders
(1) Whenever, on the basis of any information
available to him, the Adimunistrator finds that any
person is in violation of any condition or limitation
which implements section 1311, 1312, 131.6, 1317,
1318, 1328, or 1345 of this title in a permit issued by
a State under an approved permit program under
section 1342 or 1344 of this title he shall proceed
under his authority in paragraph (3) of this subsec-
tion or he shall notify the person in alleged violation
and such State of such finding. If beyond the
thirtieth day after the Admmistrator s notification
the State has not commenced appropriate enforce-
ment action, the Administrator shall issue an order
requiring such person to comply with such condition
or limitation or shall bring a civil action in accor-
dance with subsection (b) of this section.
(2) Whenever, on the basis of information avail-
able to him, the Administrator finds that violations
of permit conditions or limitations as set forth in
paragraph (1) of this subsection are so widespread
that such violations appear to result from a failure
of the State to enforce such permit conditions or
limitations effectively, he shall so notify the State.
If the Adrninis ator finds such failure extends be-
yond the thirtieth day after such notice, he shall
give public notice of such finding. During the
period beginning with such public notice and ending
when such State satisfies the Administrator that it
will enforce such conditions and limitations (hereaf-
ter referred to in this section as the period of
“federally assumed enforcement”), except where an
extension has been granted under paragraph (5XB)
of this subsection, the Administrator shall enforce
any permit condition or limitation with respect to
any person—
(A) by issuing an order to comply with such
condition or limitation, or
(B) by bringing a civil action under subsection
(b) of this section.
(3) Whenever on the basis of any information
available to him the Admmtatrator finds that any
person is in violation of section 1311, 1312, 1316,
1317, 1318, 1328, or 1345 of this title, or is in
violation of any permit condition or limitation imnple-
inenting any of such sections in a permit issued
under section 1342 of this title by him or by a State
or in a permit issued under section 1344 of this title
by a State, he shall issue an order requiring such
person to comply with such section or requirement,
or he shall bring a civil action in accordance with
subsection (b) of this section.
WATER POLLUTION PREVE FION
CODE OF FEDERAL REGuLATIONS
Elsc l sad eIec onlc . uwpoaents point scores category, see 40
CFR 469.10 et seq.
General pre es ent regulations for existing sad new sources of
pollution. ass 40 CFR 408.1 et seq.
Iron and steel manufacturing point source category. see 40 CFR
420.01 et seq.
Metal finishing point source category. 40 CPR 438.10 et seq.
Pisatica “ g and forming point source category, ass 40 CFR
483.1 ii seq.
Public information, ass 40 CVR 2.100 et seq.
Secondary estinent regulation, see 40 CFR 133.100 et seq.
To pollutant effluent standarda, ass 40 Cfl 1 .1 et seq.
LAW REVIEW COMMEP ARIES
w sad the Drmd—the DOD sad environmental law. Mi-
chael Donnelly sad James G. Vsn Nem, 33 Fed-Bar News fl
(1968k
LIBRARY REFERENCES
Health sad Environment 25.7(18).
C.J.3. Health and Environment 113 it seq

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33 § 1319
FWPCA § 309
(4) A copy of any order issued under this subsec-
tion shall be sent immediately by the Administrator
to the State in which the violation occurs and other
affected States. In any case in which an order
under this subsection (or notice to a violator under
paragraph (1) of this subsection) is issued to a
corporation, a copy of such order (or notice) shall be
served on any appropriate corporate officers. An
order issued under this subsection relating to a
violation of section 1318 of this title shall not take
effect until the person to whom it is issued has had
an opportunity to confer with the Administrator
concerning the alleged violation.
(5XA) Any order issued under this subsection
shall be by personal service, shall state with reason-
able specificity the nature of the violation, and shall
specify a time for compliance not to exceed thirty
days in the case of a violation of an interim compli-
ance schedule or operation and maintenance require-
ment and not to exceed a time the Adutinistrator
determines to be reasonable in the case of a viola-
tion of a final deadline, taking into account the
seriousness of the violation and any good faith
efforts to comply with applicable requirements.
(B) The Admini traCor may, if he determines (i)
that any person who is a violator of, os any person
who is otherwise not in compliance with, the time
requirements under this chapter or in any permit
issued under this chapter, has acted in good faith,
and has made a commitment (in the form of con-
tracts or other securities) of necessary resources to
achieve compliance by the earliest possible date
after July 1, 19T , but not later than April 1, 1979;
(ii ) that any extension under this provision will not
result in the imposition of any additional controls on
any other point or nonpoint source; (iii) that an
application for a permit under section 1342 of this
title was filed for such person prior to December 31,
1974; and (is’) that the facilities necessary for com-
pliance with such requirements are under construc-
tion, grant an extension of the date referred to in
section 1311(bX1XA) of this title to a date which will
achieve compliance at the earliest time possible but
not later than April 1, 1979.
(6) Whenever, on the basis of information avail-
able to him, the A nini fratøy finds (A) that any
person is in violation of section 1311(bX1XA) or (C)
of this title, (B) that such person cannot meet the
requirements for a time extension under section
1311(iX2) of this title, and (C) that the most expedi-
tious and appropriate means of compliance with this
chapter by such person is to discharge into a public-
ly owned treatment works, then, upon request of
such person, the M”uni frator may issue an order
410
requiring such person to comply with this chapter at
the earliest date practicable, but not later than July
1, 1983, by discharging into a publicly owned .reat-
ment works if such works concur with such order
Such order shall include a schedule of compliance.
(b) Civil actioni
The Adinuii.stratoz . is authorized to commence a
civil action for appropriate relief, including a pci-ma-
nent or temporary injunction, for any violation for
which he is authorized to issue a compliance order
under subsection (a) of this section. Any action
under this subsection may be brought in the district
court of the United States for the district in which
the defendant is located or resides or is doing busi-
ness, and such court shall have jurisdiction to re-
stain such violation and to require compliance. No-
tire of the commencement of such action shall be
given immediately to the appropriate State.
(c) Criminal penalUee
(1) Negft vit violations
Any person who—
(A) negligently violates section 1311, 1312,
1316, 1317, 1318. 1321(bX3), 1328, or 1345 of
this title, or any permit condition or limitation
implementing any of such sections in a permit
issued under section 1342 of this title by the
Admmuitrator or by a State, or any require-
ment imposed in a pretreatment program ap-
proved under section 1342(aX3) or 1342 b)(8) of
this title or in a permit issued under section
1344 of this title by the Secretary of the Army
or by a State; or
(B) negligently introduces into a sewer sys-
tem or into a publicly owned treatment works
any pollutant or hazardous substance which
such person knew or reasonably should have
known could cause personal injury or property
damage or, other than in compliance with all
applicable Federal, State, or local requirements
or permits, which causes such treatment works
to violate any effluent limitation or condition in
any permit issued to the treatment works under
section 1342 of this title by the Adminiatrator
or a State;
shall be punished by a fine of not less than $2,500
nor more than $25,000 per day of violation, or by
imprisonment for not more than 1 year, or by
both. If a conviction of a person is for a violation
committed after a first conviction of such person
under this paragraph, punishment shall be by a
fine of not more than $50,000 per day of violation,
or by imprisonment of not more than 2 years, or
by both.
SELECTED E V1RONMENTAL LAW STATUTES

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I-
(2) KnowIng violations
Any person who—
(A) knowingly violates section 1311, 1312,
1316, 1317, 1318, 1321(bX3), 1328, or 1345 of
this title, or any permit condition or limitation
implementing any of such sections in a permit
issued under section 1342 of this title by the
Administrator or by a State, or any require-
ment imposed in a pretreatment program ap-
proved under section 1342(aX3) or 1342(bX8) of
this title or in a permit issued under section
1344 of this title by the Secretary of the Army
or by a State; or
(B) knowingly introduces into a sewer sys-
tem or into a publicly owned treatment works
any pollutant or hazardous substance which
such person knew or reasonably should have
known could cause personal injury or property
damage or, other than in compliance with all
applicable Federal, State, or local requirements
or permits, which causes such treatment works
to violate any effluent limitation or condition in
a permit issued to the treatment works under
section 1342 of this title by the Administrator
or a State;
shall be punished by a fine of not less than $5,000
nor more than $50,000 per day of violation, or by
imprisonment for not more than 3 years, or by
both. If a conviction of a person is for a violation
committed after a first conviction of such person
under this paragraph, punishment shall be by a
fine of not more than $100,000 per day of viola-
tion, or by imprisonment of not more than 6
years, or by both.
(3) KnowIng endangerment
(A) General rule
Any person who knowingly violates section
1311, 1312, 1318, 1316, 1311, 1318, 1328, or 1345
of this title, or any permit condition or limita-
tion implementing any of such sections in a
permit issued under section 1342 of this title by
the Administrator or by a State, or in a permit
issued under section 1344 of this title by the
Secretary of the Army or by a State, and who
knows at that time that he thereby places an-
other person in imminent danger of death or
serious bodily injury, shall, upon conviction, be
subject to a fine of not more than $250,000 or
imprisonment of not more than 15 years, or
both. A person which is an organization shall,
upon conviction of violating this subparagraph,
be subject to a fine of not more than $1,000,000.
If a conviction of a person is for a violation
committed after a first conviction of such per
33 § 1319
FWPCA §309
son under this paragraph, the maximum punish-
ment shall be doubled with respect to both fine
and imprisonment.
(B) Additional provisions
For the purpose of subparagraph (A) of this
paragraph—
(1) in determining whether a defendant
who is an individual knew that his conduct
placed another person in imminent danger of
death or serious bodily injury—
(1) the person is responsible only for ac-
tual awareness or actual belief that he
possessed and
(II) knowledge possessed by a person
other than the defendant but not by the
defendant himself may not be attributed to
the defendant;
except that in proving the defendant’s posses-
sion of actual knowledge, circumstantial evi-
dence may be used, including evidence that
the defendant took affirmative steps to shield
hiniself from relevant information;
(LI) it is an affirmative defense to prosecu-
tion that the conduct charged was consented
to by the person endangered and that the
danger and conduct charged were reasonably
foreseeable hazards of—
(I) an occupation, a business, or a pro-
fession; or
(II) medical treatment or medical or sci-
entific experimentation conducted by pro-
fessionally approved methods and such oth-
er person had been made aware of the risks
involved prior to giving consent;
and such defense may be established under
this subparagraph by a preponderance of the
evidence;
(LU) the term “organization” means a legal
entity, other than a government, established
or organized for any purpose, and such term
includes a corporation, company, association,
firm, partuership, joint stock company, foun-
dation, institution, trust, society, union, or
any other association of persons; and
(Lv) the term “serious bodily injury” means
bodily injury which involves a substantial risk
of death, unconsciousness, extreme physical
pam, protracted and obvious disfigurement,
or protracted loss or impairment of the func-
tion of a bodily member, organ, or mental
f—.
411 WATER pOLLUTION PREVENTION

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1;-
33 § 1319
FWPCA 3O9
4) False stalemenia
Any person who knowingly makes any false
material statement, representation, or certifica-
tion in any application, record, report, plan, or
other document filed or required to be maintained
under this chapter or who knowingly falsifies,
tampers with, or renders inaccurate any monitor-
ing device or method required to be maintained
under this chapter, shall upon conviction, be pun-
ished by a fine of not more than $10,000, or by
imprisonment for not more than 2 years, or by
both. If a conviction of a person is for a violation
committed after a first conviction of such person
under this paragraph, punishment shall be by a
fine of not more than $20,000 per day of violation,
or by imprisonment of not more than 4 years, or
by both.
(5) Treatment of utng e op.rsdonal upset
For purposes of this subsection, a single opera-
tional upset which leads to simultaneous viola-
tiona of more than one pollutant parameter shall
be treated as a single violation.
(5) Reeponaible corporate omcer as “person”
For the purpose of this subsection, the term
“person” means, in addition to the definition con-
tained in section 1362(5) of this title, any responsi-
ble corporate officer.
(7) Baxazdoua substance defined
For the purpose of this subsection, the term
“hazardous substance” means (A) any substance
designated pursuant to section 1321(bX2XA) of
this title, (B) any element, compound, mixture,
solution, or substance designated pursuant to sec-
tion 9602 of This 42, (C) any hazardous waste
having the characteristics identified under or list-
ed pursuant to section 3001 of the Solid Wa ta
Disposal Act (42 U.S.C.A. * 6921] (but not includ-
ing any waste the regulation of which under the
Solid Waste Disposal Act (42 US.C.A. * 6901 et
seq.] has been suspended by Act of Congress), (D)
any toxic pollutant listed under section 1317(a) of
this title, and (E) any imminently hazardous chem-
ical substance or mixture with respect to which
the Administiator has taken action pursuant to
section 2606 of Title 15.
(d) lvtl pen.It&e, factars consIdered In determining
Any person who violates section 1311, 1312, 1316,
1317, 1318, 1328, or 1345 of this title, or any permit
condition or limitation implementing any of such
sections in a permit issued under section 1342 of
this title by the i iinis ator, or by a State, or in a
permit issued under section 1344 of this title by a
412
State ,, t or any requirement imposed n a pretreat.
ment program approved under section 1342(a)(3) or
1342(bX8) of this title, and any person who violates
any order issued by the Administrator under sub-
section (a) of this section, shall be subject to a civil
penalty not to exceed $25000 per day for each
violation. In deterrrurung the amount of a civil
penalty the court shall consider the seriousness of
the violation or violations, the economic benefit (if
any) resulting from the violation, any history of
such violations, any good-faith efforts to comply
with the applicable requirements, the economic irn-
pact of the penalty on the violator, and such other
matters as justice may require. For purposes of
thin subsection, a single operational upset which
leads to simultaneous violations of more than one
pollutant parameter shall be treated as a single
violation.
(el State liability (or judgment. and expenses
Whenever a municipality is a party to a civil
action brought by the United States under this
section, the State in which such municipality is
located shall be joined as a party. Such State shall
be liable for payment of any judgment, or any
expenses incurred as a result of complying with any
judgment, entered against the municipality in such
action to the extent that the laws of that State
prevent the municipality from raising revenues
needed to comply with such judgment
(f) Wrungful Introduction of pollutants Into treatments
Whenever, on the basis of any information avail-
able to him, the AdminL trator finds that an owner
or operator of any source is thuoducing a pollutant
into a eatinent works in violation of subsection (d)
of section 1317 of this title, the Administiator may
notify the owner or operator of such tiestmnent
works and the State of such violation. If the owner
or operator of the eatment works does not com-
mence appropriate enforcement action within 30
days of the date of such notification, the Athnrn i i-
trator may commence a civil action for appropriate
relief, including but not limited to, a permanent or
temporary injunction, against the owner or operator
of such treatment works. In any such civil action
the Administrator shall join the owner or operator
of such source as a party to the action. Such action
shall be brought in the district court of the United
States in the dis ict in which the treatment works
is located. Such court shall have jurisdiction to
restrain such violation and to require the owner or
operator of the treatment works and the owner or
operator of the source to take such action as may be
necessary to come into compliance with this chapter.
SELECTED ENVIRONMENTAL LAW STATUTES

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Notice of commencement of any such action shall be
given to the State. Nothing in this subsection shall
be construed to limit or prohibit any other authority
the Administrator may have under this chapter.
(g) Administrative penalties
(1) VIolations
Whenever on the basis of any information avail-
able—
(A) the Administrator finds that any person
has violated section 1311, 1312, 1316, 1317,
1318, 1328, or 1345 of this title, or has violated
any permit condition or limitation implementing
any of such sections in a permit issued under
section 1342 of this title by the Administrator
or by a State, or in a permit issued under
section 1344 of this title by a State, or
(B) the Secretary of the Army (hereinafter in
this subsection referred to as the “Secretary”)
finds that any person has violated any permit
condition or limitation in a permit issued under
section 1344 of this title by the Secretary,
the Administrator or Secretary, as the case may
be, may, after consultation with the State in
which the violation occurs, assess a class I civil
penalty or a class II civil penalty under this
subsection.
(2) Classes of penalties
(A) Cla s s I
The amount of a class I civil penalty under
paragraph (1) may not exceed $10,000 per viola-
tion, except that the mavm um amount of any
class I civil penalty under this subparagraph
shall not exceed $25,000. Before issuing an
order assessing a civil penalty under this sub-
paragraph, the Administrator or the Secretary,
as the case may be, shall give to the person to
be assessed such penalty written notice of the
AtIniirnRtratOr 5 or Secretary’s proposal to issue
such order and the opportunity to request, with-
a of the date the notice is received by
such perso a hearing on the proposed order.
Such hearing shall not be subject to section 554
or 666 of Title 5, but shall provide a reasonable
opportunity to be heard and to present evi.
deuce.
(B) Class U
The amount of a class II civil penalty under
paragraph (1) may not exceed $10,000 per day
for each day during which the violation contin-
ues; except that the ms1ilnum amount of any
class II civil penalty under this subparagraph
shall not exceed $125,000. Except as otherwise
33 § 1319
FWPCA § 309
provided in this subsection, a class II civil pen-
alty shall be assessed and collected in the same
manner, and subject to the same provisions, as
in the case of civil penalties assessed and col-
lected after notice and opportunity for a hear-
ing on the record in accordance with section 554
of ThIe 5. The Administrator and the Secre-
tary may issue rules for discovery procedures
for hearings under this subparagraph.
(3) DetermIning amount
In determining the amount of any penalty as-
sessed under this subsection, the Administrator
or the Secretary, as the case may be, shall take
into account the nature, circumstances, extent
and gravity of the violation, or violations, and,
with respect to the violator, ability to pay, any
prior history of such violations, the degree of
culpability, economic benefit or savings (if any)
resulting from the violation, and such other mat-
ters as justice may require. For purposes of this
subsection, a single operational upset which leads
to simultaneous violations of more than one pollu-
tant parameter shall be treated as a single viola-
tion.
(4) RIghts of Interested persons
(A) Public notice
Before issuing an order assessing a civil pen-
alty under this subsection the Administrator or
Secretary, as the case may be, shall provide
public notice of and reasonable opportunity to
comment on the proposed issuance of such or-
der.
(B) Presentation of evidence
Any person who comments on a proposed
assessment of a penalty under this subsection
shall be given notice of any hearing held under
this subsection and of the order assessing such
penalty. In any hearing held under this subsec-
tion, such person shall have a reasonable oppor-
tunity to be heard and to present evidence.
(C) Rights of Interested persons to a hearing
If no hearing is held under paragraph (2)
before issuance of an order assessing a penalty
under this subsection, any person who com-
mented on the proposed assessment may peti-
tion, wIthin 30 days alter the issuance of such
order, the MTninmtrator or Secretary, as the
case may be, to set aside such order and to
provide a hearing on the penalty. If the evi-
dence presented by the petitioner in support of
the petition is material and was not considered
in the suance of the order, the AdministratOr
413 WATER POLLUTION PREVENTION

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33 § 1319
FWPCA 3O9
or Secretary shall immediately set aside such
order and provide a hearing in accordance with
paragraph (2)(A) in the case of a class I civil
penalty and paragraph (2XB) in the case of a
class II civil penalty If the Administrator or
Secretary denies a hearing under this subpara-
graph, the Administrator or Secretary shall pro-
vide to the petitioner, and publish in the Federal
Register, notice of and the reasons for such
denial.
(5) FinaLity of order
An order issued under this subsection shall
become fInal 30 days after its issuance unless a
petition for judicial review is filed under para-
graph (8) or a hearing is requested under para-
graph (4XC). If such a hearing is denied., such
order shall become final 30 days after such deniaL
(6) Effect of order
(A) Umitatlon on actions under other sections
Action taken by the Administrator or the
Secretary, as the case may be, under this sub-
section shall not affect or limit the Adminiatia-
tor’s or Secretary’s authority to enforce any
provision of this chapter except that any viola-
tion—
(1) with respect to which the Admintatrator
or the Secretary has commenced and is dili-
gently prosecuting an action under this sub-
section,
(U) with respect to which a State has com-
menced and is diligently prosecuting an ac-
tion under a State law comparable to this
subsection,. or
(lii) for which the Admiiuatrator, the Sec-
retary, or the State has issued a final order
not subject to further judicial review and the
violator has paid a penalty assessed under
this subsection, or such comparable State
law, as the case may be,
shall not be the subject of a civil penalty action
under subsection (d) of this section or section
1321(b) of this title or section 1365 of this title.
(B) Appliesbility of limitation with r pect to citi.
sea suits
The limitations contained in subparagraph (A)
on civil penalty actions under section 1365 of
this title shall not apply with respect to any
violation for which—
(I) a civil action under section 1365(aXl) of
this title has been flied prior to commence-
ment of an action under this subsection, or
414
( Ii) notice of an alleged violation of section
1365(aXl) of this title has been given in accor-
dance with section 1365(b)(1XA) of this title
prior to commencement of an action under
this subsection and an action under section
1365(aXl) of this title with respect to such
alleged violation is filed before the 120th day
after the date on which such notice is given.
(7) Effect of action on compliance
No action by the Administrator or the Secretary
under this subsection shall affect any person’s
obligation to comply with any section of this
chapter or with the terms and conditions of any
permit issued pursuant to section 1342 or 1344 of
this title.
(8) JudIcial review
Any person against whom a civil penalty is
assessed under this subsection or who commented
on the proposed assessment of such penalty in
accordance with paragraph (4) may obtain review
of such assessment—
(A) in the ca.se of assessment of a class I
civil penalty, in the United States District Court
for the District of Columbia or in the district in
which the violation is alleged to have occurred,
or
(B) in the case of assessment of a class II
civil penalty, in United States Court of Appeals
for the District of Columbia Circuit or for any
other circuit in which such person resides or
ti-ansacta business,
by filing a notice of appeal in such court within
the 30-day period beginning on the date the civil
penalty order is issued and by simultaneously
sending a copy of such notice by certified mail to
the Atlniiniatrator or the Secretary, as the case
may be, and the Attorney General. The A4’rnnia .
trator or the Secretary shall promptly file in such
court a certified copy of the record on which the
order was issued. Such court shall not set aside
or remand such order unless there is not substan-
tial evidence in the record, taken as a whole, to
support the finding of a violation or unless the
Adynmistrator’s or Secretary’s assessment of the
penalty constitutes an abuse of discretion and
shall not impose additional civil penalties for the
same violation unless the Admmisti toYo or Sec-
retary’s assessment of the penalty constitutes an
abuse of discretion.
(9) Collsedee
If inypersonfalla topay an assesimentof a
civil penalty—
(A) after the order mikit g the assessment
has become final, or
SELECTED ENVIRONMENTAL LAW STATUTES

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(B) after a court in an action brought under
paragraph (8) has entered a final judgment in
favor of the Administrator or the Secretary, as
the case may be,
the Administrator or the Secretary shall request
the Attorney General to bring a civil action in an
appropriate district court to recover the amount
assessed (plus interest at currently prevailing
rates from the date of the final order or the date
of the final judgment, as the case may be). In
such an action, the validity, amount, and appropri-
ateness of such penalty shall not be subject to
review. Any person who fails to pay on a timely
basis the amount of an assessment of a civil
penalty as described in the first sentence of this
paragraph shall be required to pay, in addition to
such amount and interest, attorneys fees and
costa for collection proceedings and a quarterly
nonpayment penalty for each quarter during
which such failure to pay persists. Such nonpay-
ment penalty shall be in an amount equal to 20
percent of the aggregate amount of such person’s
penalties and nonpayment penalties which are
unpaid as of the beginning of such quarter.
(10) Subpoenu
The Administrator or Secretary, as the case
may be, may issue subpoenas for the attendance
and testimony of withesses and the production of
relevant papers, books, or documents in connec-
tion with hearings under this subsection. In case
of contumacy or refusal to obey a subpoena is-
sued pursuant to this paragraph and served upon
any person., the district court of the United States
for any district in which such person is found,
resides, or tranaacts business, upon application by
the United States and after notice to such person,
shall have jurisdiction to issue an order requiring
such person to appear and give testimony before
the administrative law judge or to appear and
produce documents before the administrative law
judge, or both, and any failure to obey such order
of the court may be punished by such court as a
contempt thereof.
(11) Protection of existing procedures
Nothing in this subsection shall change the
procedures existing on the day before February 4,
1987, under other subsections of this section for
issuance and enforcement of orders by the Ad
ministrator.
(Jane 30, 1945, e. 758, ‘l’ tle Ifi, * 309, as added Oct. 18,
1 72, Pub.L. 92400,4 2, 86 Stat. 869, and amended Dee.
27, 1917, Pub.L. 96-217, 44 54(b), 56, 56, 67(eX2), 91 Stat.
1591, 1692. 1806; Feb. 4, 1987, Piab.L 100-4. TItle III,
44 312, 313(aXl), (bXl), (e), 314(a), 101 Stat. 42, 45, 48;
Aug. 18, 1990, Pub.L. 101-380, TItle IV, 4 4301(c), 104
Stat 637.)
iSo in originaL
33 § 1320
FWPCA 4310
West’s F.d.ral Forms
Indicunent. false statements in reports filed with Environmental
Protection Agency, see 71355
Federal Jury Practice and Instructions
Elements of offense, discharging pollutant into aD .az5i waterway,
see Devitt and B1a ir . . r § 6402 Notes
CODE OF FEDERAL REGULATIONS
General pretreatelent regulations for emeung and new sources of
pollution. see 40 CFP. 403:1 et seq.
LAW REVIEW COMMENTARIES
LIBRARY REFERENCES
Health and Environment 2L7(11).
CJ.S. Health and Environment 4 113 it seq
§ 1320. International pollution abatement
(YWYCA § 310]
(a) Hesringi participation by foreign nations
Whenever the Administrator, upon receipts of
reports, surveys, or studies from any duly constitut-
ed international agency, has reason to believe that
pollution is occurTing which endangers the health or
welfare of persons in a foreign country, and the
Secretary of State requests him to abate such pollu-
tion, he shall give formal notification thereof to the
State water poLlution control agency of the State or
States in which such discharge or discharges origi-
nate and to the appropriate interstate agency, if
415 WATER POLLUTION PREVENTION
CROSS REFERENCES
Condition of grant to State that no federally assumed enforcement
as defined in this section is in effect, see section 1255 of this
title
Costs of response incurred by Federal Government in connection
with discharge recoverable in action brought under this
section. see section 9601 of Title 42. The Public Health and
Welfare
Guidelines for use of imminent hazard. enforcement. and emergen-
cy response authorities, see section 9606 of Title 42
Jurisdiction of district courts to apply civil penalties under this
section. see section 1365 of this title
Liability of owner or operator for costs of removal incurred in
connection with a discharge of oil or hazardous substance.
see section 1321 of this title
National pollutant discharge elimination system, authority of Ad-
min isti’ator to take action under this section, see section
1342 of this title.
Permits for dredged or fill material, authority of Administrator to
take action under this section. see section 1344 of this title
Prolilbibon of Federal procurement contracts with persons convict-
ed under this section, see section 1368 of this title
Eroeion of mena rca in environmental criminal prosecution.
Ruth Ann Weidel, John P.. Mayo and F. Michael Zachire. 21 Seton
Hall LEe ’. 1125 (1991).
Citaen-snit psovnions under the Federal Water Pollution COntiVL
Act Arc remedies available for put violations’ Comment. 19
Coon .LRiv 589(1987).
Criminal sanctions under federal and stats environmental stat.
title. Richard H. Allan. 14 Ecology LQ. 117 (1987).
Warrior and the Druid—the DOD end environmental law Mi
chul Donnelly end Jamea G. Van Ness, 33 Fed.Bsr News 31
(1986).

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I-i (cont.)
Clean Water Act Section 404
(33 U.S.C. §1344)
Permits for Dredged and Fill material

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§ 1344. Permits for dredged or fill materi-
al (FWPCA § 404]
(a) Discharge into navigable waters at specified disposal
sites
The Secretary may 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. Not later than the fifteenth
day after the date an applicant submits all the
information required to complete an application for
a permit under this subsection, the Secretary shall
publish the notice required by this subsection.
(b) Specification for disposal ultes
Sub)ect to subsection (c) of this section, each such
disposal site shall be specified for each such permit
by the Secretary (1) through the application of
guidelines developed by the Admimatrator, in con-
uncon with the Secretary, which guidelines shall
be based upon criteria comparable to the criteria
applicable to the territorial seas, the contiguous
zone, and the ocean under section 1343(e) of this
title, and (2) in any case where such guidelines
under clause (1) alone would prohibit the specifica-
tion of a site, through the application additionally of
the economic impact of the site on navigation and
anchorage.
(c) Denial or restriction of use of defined areas as
disposal sites
The Mrnmiatrator is authorized to prohibit the
specification (including the withdrawal of specifica-
tion) of any defined area as a disposal site, and he is
authorized to deny or restrict the use of any defined
area for specification (including the withdrawal of
specification) as a disposal site, whenever he deter-
mines, after notice and opportunity for public hear-
ings, that the discharge of such materials into such
area will have an unacceptable adverse effect on
municipal water supplies, shellfish beds and fishery
areas (including spawning and breeding areas), wild-
life, or recreational areas. Before me -Icing such
determination, the Administrator shall consult with
the Secretary. The Atiminiatrator shall set forth in
writhig and make public his findings and his rea-
sons for maldng any determination under this sub-
section.
(d) “Secretary” defined
The term “Secretary” as used in this section
means the Secretary of the Army, acting through
the Chief of Engineers.
33 § 1344
FWPCA §404
(e) General permits on State. regional. or nationwide
basis
(1) In carrying out his functions relating to the
discharge of dredged or fill material tinder this
section, the Secretary may, after notice and oppor-
tunity for public hearing, issue general permits on a
State, regional, or nationwide basis for any category
of activities involving discharges of dredged or fill
material if the Secretary determines that the activi-
ties in such category are similar in nature, will
cause only minimal adverse environmental effects
when performed separately, and will have only mini-
mal cumulative adverse effect on the environment.
Any general permit issued under this subsection
shall (A) be based on the guidelines described in
subsection (bXl) of this section, and (B) set forth the
requirements and standards which shall apply to
any activity authorized by such general permit
(2) No general permit issued under this subsec-
tion shall be for a period of more than five years
after the date of its issuance and such general
permit may be revoked or modified by the Secretary
if, after opportunity for public hearing, the Secre-
tary determines that the activities authorized by
such general permit have an adverse impact on the
environment or such activities are more appropriate-
ly authorized by individual permits.
(f) Non-prohibited discharge of dredged or flU material
(1) Except as j)rovided in paragraph (2) of this
subsection, the discharge of dredged or fill materi-
al-
(A) from normal farming, silviculture, and
ranching activities such as plowing, seeding, culti-
vating, minor drainage, harvesting for the produc-
tion of food, fiber, and forest products, or upland
soil and water conservation practices;
(B) for the purpose of maintenance, including
emergency reconstruction of recently damaged
parts, of currently serviceable structures such as
dikes, dams 0 levees, groins, riprap, breakwaters,
causeways, and bridge abutments or approaches,
and transportation structures;
(C) for the purpose of construction or mainte-
nance of farm or stock ponds or irrigation ditches.
or the maintenance of drainage ditches;
(D) for the purpose of construction of tempo-
rary sedimentation basins on a construction site
which does not include placement of fill material
into the navigable waters;
(E) for the purpose of construction or mainte-
nance of farm roads or forest roads, or temporary
roads for moving mining equipment. where such
roads are constructed and maintained, in aceo
461 WATER POLLUTION PREVENTION
I

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SELECTED ENVIRONMENTAL LAW STATtTES
462
33 § 1344
FWPCA §404
dance with best management practices, to assure
that flow and circulation patterns and chemical
and biological characteristics of the navigable wa-
ters are not impaired. that the reach of the navi-
gable waters is not reduced, and that any adverse
effect on the aquatic environment will be other-
wise nunimized;
(F) resulting from any activity with respect to
which a State has an approved program under
section 1288(bX4) of this title which meets the
requirements of subparagraphs (B) and (C) of
such section,
is not prohibited by or otherwise subject to regula-
tion under this section or section 1311(a) or 1342 of
this title (except for effluent standards or prohibi-
tions under section 1317 of this title).
(2) Any discharge of dredged or fill material into
the navigable waters incidental to any activity hav-
ing as its purpose bringing an area of the navigable
waters into a use to which it was not previously
subject, where the flow or circulation of navigable
waters may be impaired or the reach of such waters
be reduced, shall be required to have a permit under
this section.
(g) State admInistratIOn
(1) The Governor of any State desiring to admin-
ister its own individual and general permit program
for the discharge of dredged or fill material into the
navigable waters (other than those waters which
are presently used, or are susceptible to use in their
natural condition or by reasonable improvement as
a means to transport interstate or foreign com-
merce shoreward to their ordinary high water mark,
including all waters which are subject to the ebb
and flow of the tide shoreward to their mean high
water mark, or mean higher high water mark on the
west coast, including wetlands adjacent thereto)
within its jurisdiction nisy submit to the AdTmT tra
tor a full and complete description of the program it
proposes to establish and 4n iniMer under State
law or under an interstate compact In addition,
such State shall submit a statement from the attor-
ney general (or the attorney for those State agen-
cies which have independent legal counsel), or from
the chief legal officer in the case of an interstate
agency, that the laws of such State, or the inter-
state compact, as the case may be, provide adequate
authority to carry out the described program.
( 2 ) Not later than the tenth day afterthedate 0f
the receipt of the program and statement submitted
by any State under paragraph (1) of this subsection,
the Administrator shall provide copies of such pro-
gram and statement to the Secretary and the Secre-
tary of the Interior, acting through the Director of
the United States Fish and Wildlife Service.
(3) Not later than the ninetieth day after the date
of the receipt by the Administrator of the program
and statement submitted by any State, under para-
graph (1) of this subsection, the Secretary and the
Secretary of the Interior, acting through the Di-
rector of the United States Fish and Wildlife Ser-
vice, shall submit any comments with respect to
such program and statement to the Administrator in
writing.
(h) Determination of State’. authority to issue permits
under State program; approval; notiflcation
anafera to State program
(1) Not later than the one-hundred-twentieth day
after the date of the receipt by the Administrator of
a program and statement submitted by any State
under paragraph (1) of this subsection, the Adminis-
trator shall determine, taking into account any coni-
merits submitted by the Secretary and the Secretary
of the Interior, acting through the Director of the
United States Fish and Wildlife Service, pursuant to
subsection (g) of this section, whether such State
has the following authority with respect to the
issuance of permits pursuant to such programi
(A) To issue permits which—
(I) apply, and assure compliance with, any
applicable requirements of this section, includ-
ing, but not limited to, the guidelines estab-
lished under subsection (bXl) of this section,
and sections 1317 and 1343 of this title;
(II) are for fixed terms not exceeding five
years; and
(lii) can be terminated or modified for cause
including, but not limited to, the followingi
(I) violation of any condition of the permit
(II) obt inmg a permit by misrepresenta-
tion, or failure to disclose fully all relevant
facts;
(Ui) change in any condition that requires
either a temporary or permanent reduction or
elimination of the permitted discharge.
(B) To issue permits which apply, and assure
compliance with, all applicable requiremeflts of
section 1318 of this title, or to inspect, monitor,
enter, and require reports to at least the same
extent as required in section 1318 of this title.
(C) To assure that the public, and any other
State the waters of which may be affected, re-
ceive notice of each application for a permit and
to provide an opportunity for public hearing be-
fore a ruling on each such application.

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(D) To assure that the Administrator receives
notice of each application (including a copy there-
of) for a permit.
(E) To assure that any State (other than the
permitting State), whose waters may be affected
by the issuance of a permit may submit written
recommendations to the permitting State (and the
Administrator) with respect to any permit applica-
tion and, if any part of such written recommenda-
tions are not accepted by the permitting State,
that the permitting State will notify such affected
State (and the Administrator) in writing of its
failure to so accept such recommendations togeth-
er with its reasons for so doing.
(F) To assure that no permit will be issued if, in
the judgment of the Secretary, after consultation
with the Secretary of the departhient in which the
Coast Guard is operating, anchorage and naviga-
tion of any of the navigable waters would be
substantially impaired thereby.
(G) To abate violations of the permit or the
permit program, including civil and criminal pen-
alties and other ways and means of enforcement
(H) To assure continued coordination with Fed-
eral and Federal-State water-related plpnning and
review processes.
(2) If, with respect to a State program submitted
under subsection (gXl) of this section, the Adminis-
trator determines that such State—
(A) has the authority set forth in paragraph (1)
of this subsection, the Administrator shall ap-
prove the program and so notify (i) such State and
(ii) the Secretary, who upon subsequent notif.ca-
tion from such State that it is administering such
program, shall suspend the issuance of permits
under subsections (a) and (e) of this section for
activities with respect to which a permit may be
issued pursuant to such State program; or
(B) does not have the authority set forth in
paragraph (1) of this subsection, the Administra-
tor shall so notify such State, which notification
shall also describe the revisions or modifications
necessary so that such State may resubmit such
program for a determination by the Administrator
under this subsection. -
(3) If the Administrator fails to make a determi-
nation with respect to any program submitted by a
State under subsection (gXl) of this section within
one-hundred-twenty days after the date of the re-
ceipt of such program, such program shall be
deemed approved pursuant to paragraph (2XA) of
this subsection and the Administrator shall so notify
such State and the Secretary who, upon subsequent
33 § 1344
FWPCA § 404
notification from such State that it is administering
such program, shall suspend the issuance of permits
under subsection (a) and (e) of this section for
activities with respect to which a permit may be
issued by such State.
(4) After the Secretary receives notification from
the Administrator under paragraph (2) or (3) of this
subsection that a State permit program has been
approved, the Secretary shall transfer any applica-
tions for permits pending before the Secretary for
activities with respect to which a permit may be
issued pursuant to such State program to such
State for appropriate action.
(5) Upon notification from a State with a permit
program approved under this subsection that such
State intends to administer and enforce the terms
and conditions of a general permit issued by the
Secretary under subsection (e) of this section with
respect to activities in such State to which such
general permit applies, the Secretary shall suspend
the administi-ation and enforcement of such general
permit with respect to such activities.
(I) Withdrawal of approval
Whenever the Administrator determines after
public hearing that a State is not administering a
program approved under subsection (hX2XA) of this
section, in accordance with this section, including,
but not limited to, the guidelines established under
subsection (bXl) of this section, the Administrator
shall so notify the State, and, if appropriate correc-
tive action is not taken within a reasonable time, not
to ed ninety days after the date of the rece iPt
of such notification, the Administrator shall (1) with-
draw approval of such program until the Adminis-
tzator determines such corrective action has been
taken, and (2) notify the Secretary that the Secre-
tary shall resume the program for the issuance of
permits under subsections (a) and (e) of this section
for activities with respect to which the State was
issuing permits and that such authority of the Sec-
retary shall continue in effect until such time as the
Administrator makes the determination described in
clause (1) of this subsection and such State again
has an approved program.
(j) Copies of appUcattona for State permits and proposed
general permits to be trmnamlUed to Administrator
Each State which is administering a permit pro-
gram pursuant to this section shall transmit to the
Administrator (1) a copy of each permit application
received by such State and provide notice to the
Administrator of every action related to the consid-
eration of such permit application, including each
permit proposed to be issued by such State, and (2)
463 WATER POLLUTION PREVENTION

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33 § 1344
F’# PCA 4O4
a copy of each proposed general permit which such
State intends to issue. Not later than the tenth day
after the date of the receipt of such permit applica-
tion or such proposed general permit, the Adminis-
trator shall provide copies of such permit applica-
tion or such proposed general permit to the Secre-
tary and the Secretary of the Interior, acting
through the Director of the United States Fish and
Wildlife Service. If the Adminizti ator intends to
provide written comments to such State with re-
spect to such permit application or such proposed
general permit, he shall so notify such State not
later than the thirtieth day after the date of the
receipt of such application or such proposed genera]
permit and provide such written comments to such
State, after consideration of any comments made in
writing with respect to such application or such
proposed general permit by the Secretary and the
Secretary of the Interior, acting through the Di .
rector of the United States Fish and Wildlife Ser-
vice, not later than the ninetieth day after the date
of such receipt If such State is so notified by the
Administrator, it shall not issue the proposed permit
until after the receipt of such comments from the
Administrator, or after such ninetieth day, whichev-
er first occurs. Such State shall not issue such
proposed permit after such ninetieth day if it has
received such written comments in which the Ad-
miniatrator objects (A) to the issuance of such pro-
posed permit and such proposed permit is one that
has been submitted to the Ad__‘istiator pursuant
to subsection (hX1XE) of this section, or (B) to the
issuance of such proposed permit as being outside
the requirements of this section. including, but not
limited to, the guidelines developed under subsec-
tion (bXl) of this section unless it modifies such
proposed permit in accordance with such comments.
Whenever the Administi ator objects to the issuance
of a permit under the preceding sentence such writ-
ten objection shall contain a statement of the rea-
sons for such objection and the conditions which
such permit would include if it were issued by the
Mminiati ’stor. In any case where the Admiithtra.
tor objects to the issuance of a permit., on request of
the State, a public hearing shall be held by the
Aimmia atnr on such objection. If the State does
not resubmit such permit revised to meet such
objection within 30 days after completion of the
hearing or, if no hearing is requested within 90 days
after the date of such objection, the Secretary may
issue the permit pursuant to subsection (a) or (e) of
this section, as the case may be, for such source in
accordance with the guidelines and requirements of
this chapter.
(k) Waiver
464
In accordance with guidelines promulgated pursu-
ant to subsection (iX2) of section 1314 of this title,
the Adniinistrator is authorized to waive the re-
quirements of subsection (j) of this section at the
time of the approval of a program pursuant to
subsection (hX2) A) of this section for any category
(including any class, type, or size within such cate-
gory) of discharge within the State submitting such
program.
(f Categorie, of discharges not aubject to reqwrem.nts
The AdminL tiator shall prornu]gate regulations
establishing categories of discharges which he dc-
terznines shall not be subject to the requirements of
subsection (j) of this section in any State with a
program approved pursuant to subsection (hX2XA)
of this section. The Administrator may distinguish
among classes, types, and sizes within any category
of discharges.
(in) Comment., on permit applications or proposed gen.
.ini permits by Secretary of the Interior acting
through Director of United States Fish and Wild.
life Service
Not later than the ninetieth day after the date on
which the Secretary notifies the Secretary of the
Interior, acting through the Director of the United
States Fish and Wildlife Service that (1) an applica-
tion for a permit under subsection (a) of this section
has been received by the Secretary, or (2) the Secre-
tary proposes o issue a general permit under sub-
section (e) of this section, the Secretary of the
Interior, acting through the Director of the United
States Fish and Wildlife Service, shall submit any
comments with respect to such application or such
proposed general permit in writing to the Secretary.
(a) Enforcement authority not limited
Nothing in this section shall be construed to limit
the authority of the Mminiatrator to take action
pursuant to section 1319 of this title.
(o) Public svsliabillty of permits and permit applies.
Uses
A copy of each permit application and each permit
issued under this section shall be available to the
public. Such permit application or portion thereof,
shall further be available on request for the purpose
of reproduction.
(p) Compliance
Compliance with a permit issued pursuant to this
section, including any activity carried out pursuant
to a general permit issued under this section, shall
be deemed conipliancn, for purposes of sections
SELECTED ENVIRONMF NTAL LAW STATUTES

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zc
465
1319 and 1365 of this title, with sections 1311, 1317.
and 1343 of this title.
(q) Minimization of duplication, needleR paperwork,
and delay, in issuance: agreement.
Not later than the one- hundred-eightieth day af-
ter December 27, 19177, the Secretary shall enter
into agreements with the Administiator, the Secre-
taries of the Departments of Agriculture, Com-
merce, Interior, and Transportation, and the heads
of other appropriate Federal agencies to minimize,
to the maximum extent practicable, duplication,
needless paperwork, and delays in the issuance of
permits under this section. Such agreements shall
be developed to assure that, to the maximum extent
ractcabie, a decision with respect to an application
for a permit under subsection (a) of this section will
be made not later than the ninetieth day after the
date the notice for such application is published
under subsection (a) of this section.
(r) Federal project. specificall; authorized by Congress
The discharge of dredged or fill material as part
of the construction of a Federal project specifically
authorized by Congress, whether prior to or on or
after December 27, 1917, is not prohibited by or
otherwise subject to regulation under this section,
or’ a State program approved under this section, or
section 1311(a) or 1342 of this title (except for
effluent standards or prohibitions under section
1317 of this title), if information on the effects of
such discharge, including consideration of the guide-
lines developed under subsection (bXl) of this sec-
tion, is included in an environmental impact state-
ment for such project pursuant to the National
Environmental Policy Act of 1969 (42 U.S.C.A.
§ 4321 et seq.] and such environmental impact
statement has been submitted to Congress before
the actual discharge of dredged or fill material in
connection with the construction of such project and
prior to either authorization of such project or an
appropriation of funds for such construction.
(a) Violation of permit.
(1) Whenever on the basis of any information
available to him the Secretary finds that any person
is in violation of any condition or limitation set forth
in a permit issued by the Secretary under this
section, the Secretary shall issue an order requiring
such person to comply with such condition or limita-
tion, or the Secretary shall bring a civil action in
accordance with paragraph (3) of this subsection.
(2) A copy of any order issued under this subsec-
tion shall be sent immediately by the Secretary to
the State in which the violation occurs and other
affected States. Any order issued under this sub-
sstI t_ -l1
33 § 1344
FWPCA 4404
section shall be by personal service and shall state
with reasonable specificity the nature of the viola-
tion, speedy a time for compliance, not to exceed
thirty days, which the Secretary determines is rea-
sonable, taking into account the seriousness of the
violation and any good faith efforts to comply with
applicable requirements. In any case in which an
order under this subsection is issued to a corpora-
tion, a copy of such order shall be served on any
appropriate corporate officers.
(3) The Secretary is authorized to commence a
civil action for appropriate relief, including a perma-
nent or temporary injunction for any violation for
which he is authorized to issue a compliance order
under paragraph (1) of this subsection. Any action
under this paragraph may be brought in the d izti’ict
court of the United States for the district in which
the defendant is located or resides or is doing busi-
ness, and such court shall have jurisdiction to re-
strain such violation and to require compliance. No-
tice of the commencement of such acto& shall be
given immediately to the appropriate State.
(4) Any person who violates any condition or
limitation in a permit issued by the Secretary under
this section, and any person who violates any order
issued by the Secretary under paragraph (1) of this
subsection, shall be subject to a civil penalty not to
exceed $25,000 per day for each violation. In deter-
mining the amount of a civil penalty the court shall
consider the seriousness of the violation or viola-
tions, the economic benefit (if any) resulting from
the violation, any history of such violations, any
good-faith efforts to comply with the applicable
requirements, the economic impact of the penalty on
the violator, and such other matters as justice may
require.
(I) Navigable waters within State jurisdiction
Nothing in this section shall preclude or deny the
right of any State or interstate agency to control
the discharge of dredged or fill material in any
portion of the navigable waters within the jurisdic-
tion of such State, including any activity of any
Federal agency, and each such agency shall comply
with such State or interstate requirements both
substantive and procedural to control the discharge
of dredged or fill material to the same extent that
any person is subject to such requirements. This
section shall not be construed as affecting or im-
pairing the authority of the Secretary to maintain
navigation.
(June 30, 1943, c. 753, TItle IV, 4 404, as added Oct. 13,
19’72, Pub-k 92-500,42,86 Stat. 884, and amended Dec.
27, 1917, Pub ,L . 95—217, 4 67(s), (b), 91 Stat 1600; Feb. 4,
1987, Pub-k 100-4, Title 111. 4 313(d), 101 Stat. 45.)
13o imgm.L Pivbsbly should read “aCUOD ’
WATER POLLUTION PREVE ”r1oN

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SELECTED ENVIRONMENTAL LAW STATUTES
466
33 § 1344
FWOCA §404
CROSS REFERENCES
Areawide waste eatment management. compliance with guide-
lines established under this section, see section 1288 of this
title.
Definition of “federally permitted reles.ee”, see section 9601 of
Title 42, The Public Health and Welfare
Enforcement of permit provisions, see section 1319 of this title
Grant to State for reasonable cost of administering an approved
program under this section. see section 1285 of this title.
Illegality of pollutant discharges except as in compliance with this
section. see section 1311 of this title.
Permits for discharge of pollutants, see section 1342 of this title.
Records and reports. see section 1318 of this title
State management of permit program. see section 1254 of this title
CODE OF FEDERAL REGULATIONS
Enforcement. supervision and Inspection, see 33 CFR 326 1 et seq.
General regulatory policies. see 33 CFR 3201 et seq.
Nationwide permits, see 33 CFR 3301 et seq
Permits for discharges of dredged or fill materis.l into waters of
the United States, see 33 CFR 3331 et seq
Procedures applicable to dredged and fill material, see 40 CFR
230.1 et seq. 231 let aet .
Processing of Department of the Army permits, see 33 CT ?. 325.1
et seq.
Public hearings, see 33 CT?. 327.1 et seq.
State program tinsfer regulations. see 40 CFR 233.1 et seq.
LAW REVIEW COMMENTARIES
Danuning agricultural draanagr The effect of wetland preserva-
tion and federal regulation on agricultural drainage in Minnesota.
Mark .1. Hanson. 13 Wm.Mitchell L..Rev. 135 (1987).
Navigating through the Wetlands Act Marsha Wolf and Lawis
Goidahore. 120 N.J.LJ. 645 (1987).
Regulation of batters pollution and ecology. Stan Mlllsn, 33
Loyola (l.a.) LBsv. 921 (1988).
Section 404(f) of the Clean Water Act Trench warfare over
maintenance of agricultural drainage ditches. Benjamin H. Gram-
bles. 17 Wm.Mitcheli L.Rev. 1021 (1991).
Section 404 of the Clean Water Act—permits for placement of
solid fill—judicial review Peter I. Koff. Laurie Burt and Cather-
ine L Farrell. 29 Ann.Surv.MIU.L 354 (1982).
The Clean Water Act—More Section 404: The Supreme Court
gets its feet wet. 65 Boston ULRv 996 (1986).
Wetlands and agnculturab Environmental regulation and the
limits of private property Gerald Tones, 34 UJCsn.L.Re ”. 689
(1986).
LIBRARY REFERENCES
Health and Environment .25.7(18).
C.J.S. Health and Environment 4 lOT et seq.
§ 1345. DIsposal or use of sewage sludge
(FWPCA § 4061
(a) Permit
Notwithstanding any other provision of this chap-
ter or of any other law, in any case where the
disposal of sewage sludge resulting from the opera-
tion of a es nent works as defined in section 1292
of this title (including the removal of in-place sew-
age sludge from one location and its deposit at
another Location) would result in any pollutant from
such sewage sludge entering the navigable waters,
such disposal is prohibited except in accordance
with a permit issued by the Administrator under
section 1342 of this title.
(b) Issuance of permit; regulations
The Administrator shall issue regulations govern-
ing the issuance of permits for the disposal of
sewage sludge subject to subsection (a) of this
section and section 1342 of this title. Such regula-
tions shall require the application to such disposal
of each criterion, factor, procedure, and require-
ment applicable to a permit issued under section
1342 of this title.
(C) State permit program
Each State desiring to administer its own permit
program for disposal of sewage sludge subject to
subsection (a) of this section within its jurisdiction
may do so in accordance with section 1342 of this
title.
(d) Regulation’
(1) Regulations
The Administrator, after consultation with ap-
propriate Federal and State agencies and other
interested persons, shall develop and publish,
within one year after December V, 1917, and
from time to time thereafter, regulations provid-
ing guidelines for the disposal of sludge and the
utilization of sludge for various purposes. Such
regulations shall—
(A) identify uses for sludge, including dis-
(B) specify factors to be taken into account
in determining the measures and practices ap-
plicableto each such use or disposal (including
publication of information on costs),
(C) identify concen stions of pollutants
which interfere with each such use or disposaL
The AMninistrator is authorized to revise any
regulation issued under this subsection.
(2) IdenWlcatlon and regulation of toile pollutants
(A) On basis of available information
(I) Proposed riguladon’
Not later than November 30, 1988,1 the
AdnsinuatzatOr shall identify those toxic pollu-
tants which, on the basis of available infor-
mation on their toxicity, persistence, coneen-
tration, mobility, or potential for exposure,
may be present in sewage sludge in concen-
trations which may adversely affect public
health or the environment, and propose regn-
lations specifying acceptable management
practices for sewage sludge ontaiDmg each
such toxic pollutant and establishing numeri-

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1-2
FOOD SECURITY ACT OF 1985 (including Swampbuster and Sodbuster)
(16 U.S.C. §3801)
(Reserved due to length - Index provided)

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PUBLIC LAW 99—198 [ H.R. 21001; December 23, 1985
FOOD SECURITY ACT OF 1985
For Leg islatwe Hi.story of Act see Rep,ri for PL 99-198
in Legislative !li3tory Section, p L
A,i Act to iit.nd md r*v,s oqnviIvr,l pm4c, sup oct sad ,.lot.d pcoqrms, to eo,Id• to,
ogncuhwmi .xpoct, rs,oo,c cons oust. toss credit, sad oqrlcvitwol re$.o,d, sad rei $.d
PrOr0MI, is cont4isu toed ossistoac. is low-liscotut. persouus, to .nsw, conlisso,, utu
bundouti. ot food mad fib.c., rocsotuabls prlc,, mad to, offu., purpose..
Be it enacted by the Senate and House of Representatives of the
Food Security United States of America in Congress assembled
Act of 1985
Farms and SHORT i ’rri.g
farming
SECTION 1 This Act may be cited as the “FOOd Security Act of
commodities 198
7 USC 1281 note TABLE OF CONTENTs
SEC 2 The table of contents is as follows:
Sec I Short title
Sec 2 Table of content&
TITLE 1—DAIRY
Subtitle A—Milk Pnce Support end Producer-Supported Dairy Program
Sec 101 Milk pnce support, pnce reduction, and milk production termination pro-
grams for calendar years 1986 through 1990
Sec 102. Administrative procedures
Sec 103 Application of support pnce for milk
Sec 104 Avoidance of adverse effect of milk production termination program on
beef, pork, and lamb producers.
Sec 105 Domestic casein industry
Sec 106 Study relating to in
Sec 107 Circumvention of histoncal disthbution of milk.
Sec 108 Application of amendmenta.
Subtitle B—Dairy Research and Promotion
Sec 121 National Dairy Research Endowment Institute
Subtitle C—Milk Marketing Orders
Sec 131 Minimum adjustments to prices (or fluid milk under marketing orders.
Sec 132. Adjustments to .’ seasonal production; hearings on amendments; determi-
nation of milk prices.
Sec 133 Marketwide service payments.
Sec 134 Status of producer handlers.
Subtitle D—National Commission on Dairy Policy
Sec 141 Findings and declaration of policy
Sec 142 Eatablislunent of commission
Sec 143 Study and recommendations
Sec 144 Administration.
Sec 145 Financial .uppoit
Sec 146 Termination of commission
Subtitle E—Miscellasteous
Sec 151 Transfer of dairy products to the military and veterans hospitals
Sec. 152. Extension of the dairy indemnity program
Sec 153 Dairy export incentive program
99 STAT. 1354

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‘0
Dec. 23 FOOD SECURITY ACT P.L. 99-198
TITLE li—WOOL AND MOHAIR
Sec. 201 Extension of pnce support program.
Sec 202 Foreign promcUOit program.
TITLE m—WH AT
Sec. 301 Wheat poll.
S.c 302 Marketuig quotas.
Sec. 303 Marketing quota apportiownent factor
Sec. 304 Farm marketing 9 uotas.
Sec. 305 Marketing penalta
Sec. 306 Referendum.
Sec 301 Transfer of farm marketing quotes .
Sec. 30$ Loan rst. target pn . ‘ 4’ - ’ payments. acreage limitation and set.
and land divernac for the 1986 through 1990 crops of
Sec. 309 Nonapplicabdtty of certificate reqwrementa.
Sec. 310 Si pe oa of land use. wheat marketing allocation, and producer cerufi
cat. prarenana.
Sec. 311 SuspensiOn of certain quota prorenons.
Sec. 312. NonapplicabilitY of section 107 of the Agricultural Act of 1949 to the 1986
through 1990 c rop. of wheat.
TTFLE P1—FEED GRAINS
Sec. 401. Loan rst target price., dicseter payments, acreage limitation and set-
aside programe, sad land daverison for the 1986 through 1990 crops of
feed grains.
Sec. 402. Nonapplicabditl of section 105 of the agricultural act of 1949 to the 1986
through 1990 crops of feed paina.
Sec. 403. Price support far earn silage.
1T1 ’LE v—4X)TN)N
Sec. 501. Loan rates, target prices. dlaes r payment.. acreage limitation program.
and land divvi$iOn for the 1966 through 1990 erops of upland cotton
Sec. 502. Suspe eiea of bees eagn allotment., marketing and related proS
v iOca .
Sec. 508. Commodity Credit Corporation mice price reetrictio
Sac. 504. Micellanesise ceUcn y v
Sec. 506 S prvw —
Sec. 506 Preliminary allotment. for 1991 crop of upland eatmn.
Sec. 507. Extra long dsple c on.
TT1 R V1-RK
Sec. 601. Loan rates, target pnces . d .r payment.. a raage limitation program.
and land divui..oii for the 1966 through 1990 crops of rice.
Sec. 602. Marketing teen for the 1985 crop of rice.
Sec. 608. Marketing certiflcetm.
1Tfl VU-PEANWS
Sec. 701. S e ’ of marketing qnot sad e.ge allotment..
; .r
Sec. 704. MarketIng penalties; dicpotition of additional peanut..
Sec. 705. PrIce , 1 pport program.
Sec. 706. Report. and reear la . ______ ________
Sec..707. S ,m ioe of certain price . dpport prvVmon&
1TTLE Vul-SOYBEANS
Sec. 801. $o besn price . yyort
ITTLE U-SUGAR
S.c. 901. Sugar price . iqyset
S.c. 902. Pre’actScs of r loan forfeitures.
Sec. 908. Pro e ’ of sugar prodmers.
TTILE x—G l AL OOMMODITY PROVISIONS
Subtitic A—M ’ Commodity PgvJlIluaa
S . c. 1001. Payment limitations. ____
Sec. 1002. AIvsaoe de&Iency and Ibw lOfl payments.
99 STAT. 1355

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FL 99-198 LAWS OF 99th CONG.—ISt SESS. Dec. 23
Sec. 1003. Advance recourse commodity loe.na.
Sec. 1004. Interest payment certificates.
Sec. 1005. Payments in commodities.
Sec. 1006. Vheat and teed grain_export certificate programs.
Sec 1007 Commodity Credit C poration sales price restrictions
Sec 1008 Disaster payments for 1985 through 1990 ci•ops of peanuts. soybea
sugar beets, and sugarcane
Sec 1009 Cost reduction options.
Sec. 1010 Multi,ear set-asides.
Sec. 1011 Supplemental set-aside and acreage limitation authority.
Sec 1012. Producer reserve program for wheat and feed grains.
Sec. 1013. Extension of reserve.
Sec. 1014. Normally pLanted acreage.
Sec. 1015. Special grenrig and hay program.
Sec. 1016 Advance announcement of programs.
Sec. 1017. Det.ermuiatiOns of the Secretary
Sec. 1018. ApplicatiOn of terms in the Agricultural Act of 1949.
Sec. 1019. Normal supply
Sec 1020. Marketing year for corn.
Sec. 1021 Federal Crop Insurance Corporation emergency funding authority
Sec 1022. Crop insurance study
Sec. 1023 National Agricultural Cost of Production Standards Review Board
Sec. 1024 Liquid fuels.
Subtitle 3—Uniform 3 e Acreage arid Yield Provisions
Sec. 1031 Acreage base sad program yield system for the wheat, feed grain, upland
cotton, and rice programs.
Subtitle C—Honey
Sec. 1041. Honey price support.
TITLE xi—TRADE
Subtitle A—Public Law 480 and Use of Surplus Commodities in International
Sec. 1101. Title U of Pubbc Law 480—funding levels.
Sec. 1102. Minimum q iaauty of agricultural commodities distributed under title IL
Sec. 1103. Title U of Public Law 480—minimum for fortified or p.w ’d food and
nonprofit agency 1 usals -
Sec. 1104. Food meiltance programo of voluntary egenctee.
Sec. 110$. Extension of the Public Law 480 authoritim.
Sec. 1106. FacilitatiOn of exports.
S .c. 1107. Fsmer-to4arui program undsv Public Law 480.
Sec. 110$. Food for development program.
Sec. 1109 Use of surplus co unodiU.c in international programs.
Sec. 1110. Food for
Sec. 1111. Sales for local curxenciss private enterprise promotion.
Sec. 1112. Child unmunlsatioii.
Sec. 1113. Special A s’ nt for Agricultural Trade sad Food Aid.
Subtitle B—Msintanar ce and Development of Export Markets
Sec. 1121 Trade policy declaration.
Sec. 1 1 Trade liberelisation.
Sec. 1123. Agricultural trade consultations.
Sec. 1124 Targeted export amstance
Sec. 1125. Short-term export credit.
Sec. 1126. Cooperator market development program.
Sec. 1121 Development and expansion of markets for United States aultlUll
mmod i t im.
Sec. 1128. Poultry, beef and pork meats and meet-food product& equitable treat.
meet.
Sec. 1126 Pilot barter program for exchange of agricultural commodities for straW
gic materials-
Sec. 1130 Agricultural export credit revolving fund.
Sec. 1131 Intermediate export credit.
Sec. 1132. Agricultural attache reports.
Sec. 1133 Contract sanctity and producer embargo protection.
Sec. 1134 Study to reduce foreign exchange risk
99 STAT. 1356

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Dec. 23 FOOD SECURITY ACT P.L 99-198
Subtitle C—Export Transportation of Agricultural Coodities
Sec 1141 Findings and declaration.
Sec 1142. Exemption of certain agricultural exports from the requirement. of the
cargo preference law ,.
Sec 1143 Effect on other laws
Subtitle D—Agncultural Import.
Sec 1151 Trade eon .ult.atiori ..
Sec 1152. Apricot Study
Sec 1155 Study relating to brazilian ethanol unporta.
Sec 1156 Study of oat import..
Subtitle E—Trsde Practices
Sec 1161. Tobacco pestiade residues.
Sec 1162. Aes ment of export dieplacament
Sec 1163. Export sales of dairy product..
Sec 1164 Unfair trade practices.
Sec 1165 Thai rice
Sec 1166. End users of imported tobacco
Sec. 1167 Barter of agricultural commodities (or stratagic and critical materials.
TITLE XIl—CONSERVAT!ON
Subtitle A—Definitions
Sec 1201 Definitions.
Subtitle B—Highly Erodible Land Conservation
Sec. 1211 Program ineligibility
Sec. 1212. Exemptions.
Sec. 1213. Soil surveys.
Subtitle C—Wetland Conservation
Sec. 1221. Program inehglbi1it
S 1 Exemptions.
Sec. 1223. Consultation with Secretary of the Interior.
Subtitle D—Conesrv.uon Acreage L..
Sec 1231 Conservation acreage
Sec. 1232. Duties of owners and operators.
Sec. 1233. Duties of the Secretary.
Sec. 1234. Payments.
Sec 1235 Contrac
Sec. 1236 Base —.
Subtitle E-Adminiotrstioa
Sec. 1241. Use of COmmOdity Credit Corporation
Sec. 1242. Use of other sge ici
Sec. 1243. M”in’ ratàoa.
Sec. 1244. Regulatio
Sec. 1245. Authorization (os appropriations.
Subtitle F—Other Conservation Pr ,iaiosis
Sec. 1251. Technical istanns for water resourms.
Sec. 1252. Sod and water rmowme con . .tzon.
1 .
liThE Xffl-
Sec. 1301. Joint oceraticea.
Sec. 1302. Eligibiflty far reel ats and operating Iosu
Sec. 1303. Family farm restriction.
Sec. 1304. Water and w s disposal facilities.
S.c. 1304A. Intarest Rates—Water and Waste Di. .a1 Facility and Co”usety Fe
Sec. 1306. Mln n ’as collateraL ____
Sec. 1806. Farm recordk.sping trviuit i ( for limited resourca L . . ....sas .
Sec. 13g7. Nos psrvI .ed accounts.
Sec. 1303. EligibIlity for emergency ioau
99 STAT. 1357

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P.L. 99-198 LAWS OF 99th CONG.—lst SESS. Dec. 23
Sec. 1309. Settlement of claims.
Sec. 1310. Oil and gas royalties.
Sec. 1311- County commi ees.
Sec. 1312. p m approvalofboanaand angUar8n
Sec. 1314. Thspoaation and leasing of farmland.
Sec. 1315. Release of normal income security.
Sec. 1316. Loan snmtTt ry statements.
Sec. 1317. Authorization of loan amounts.
Sec. 1318. Farm debt restructure and conservation set-aside conaeTvation e .
menU.
Sec. 1319. AAministration of guaranteed farm loan programs.
Sec. 1320. Interest rate reduction program.
Sec. 1321. Homestead protection.
Sec. 1322. Extension of credit to all rural utilities that participate in the program
administered by the rural electrification administration.
Sec. 1323. Nonprofit national rural development and finance corporations.
Sec. 1324. Protection for purchasers of farm products.
Sec. 1325. Prohibiting coordinated financial statement
Sec. 1326. Regulatory restraint.
Sec. 1327. Study of farm credit system.
Sec. 1328. Continuation of small farmer training and technical assistance program.
Sec. 1329. Study of farm and home plan.
T LE XIV_AGRICULTURAL RISEARCH. EXTENSION. AND TEACHING
Subtitle A—General Provisions
Sec. 1401. Short title.
Sec. 1402. Findings.
Sec. 1403 Definitions.
Sec. 1404. Responsibilities of the Secretar7 of Agriculture.
Sec. 1405. Joint Council on Food and Agricultural Sciences.
Sec. 1406. National Agricultural Research and Extension Users Advisory Board.
Sec. 1407. Federal ’State partnership.
Sec. 1408. Report of the Secretary of Agriculture.
Sec. 1409. Competitive, special. and facilities research grants.
Sec. 1410. Grants for schools of veterinary medicine.
Sec. 1411. Research facthties.
Sec. 1412. Grants and fellowships for food and agricultural sciences education.
Sec. 1413. Food and human nutrition research and extension program.
Sec. 1414. Animal health and disease research.
Sec. 1415. Extension at 1890 land-grant colleges.
Sec. 1416. Grants to upgrade 1890 land.grant college extension facilities.
Sec. 1417. Research at 1890 land-grant colleges.
Sec. 1418. International agricultural research and extension.
Sec. 1419. International trade development centers.
Sec. 1420. Agricultural information exchange with Ireland.
Sec. 1421. Studies.
Sec. 1422. Authorization for appropriations for certain agricultural research pro-
Sec. 1423. A ation for appropriations for extension education.
Sec. 1424. Contracts, grants, and cooperative agreements.
Sec. 1425. Indirect costs.
Sec. 1426. Cost.reiinburaable agreements.
Sec. 1427. Technolo ’ development
Sec. 1428. Supplemental and alternative crops.
Sec. 1429. Aquaculture.
Sec. 1430 Rangeland research.
Sec. 1431. Authorization for appropriations for Federal agricultural research facili-
ties.
Sec. 1432. Dairy goat research.
Sec. 1433. Grants to upgrade 1890 land.grant college research facilities.
Sec. 1434 Soybean Research Advisory Institute.
Sec. 1435 Smith-Lever Act.
Sec. 1436. Market expansion research.
Sec. 1437. Pesticide resistance study.
Sec. 1438. Expansion of education study.
Sec. 1439. Critical agricultural materials.
Sec. 1440. Special grants for financially stressed farmers and dislocated farmers.
Sec. 1441 Annual report on family farms.
Sec. 1442. Conforming amendments to tables of contents.
99 STAT. 1358

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4.
Dec. 23 FOOD SECURITY ACT P.L. 99-198
SubUtle B—Human Nutnuøc Rmaath
Sec. 1451. Findi .
Sec. 1452. Human outntiom r zd .
Sec. 1453. D.atary and
Subtatle C—AgT UItUrOI Produc vity R earc
Soc. 1461. it O
Sec. 1452.
1462. Pu
S 146& 1ntorma o udy.
5 1465. R ectth p &
Sec. 1465. C thnabo
Sec. HSI. Re u
Sec. 1462. Ae.—-”
Sec. 1469. inab of data.
Soc. 1470. Author b for approçr ationS.
Sec. 1471. aw date.
1TTLE XV—FOOD SFA AND R A1 PI )V IONS
Subei A—Food Stamp Pr oan
Sec. 1501. Publidy oç atnd mumty mental bealtb nt
Sec. 1502. D ermmabos of food edo Iume.
S 15 Thnfty food pisa.
Sec. 1504 Dd1aa the ddob
Sec. 1505. State and ed
Soc. 1506. Kr of food gamp and mmo’ 4 ity dattThntioo pi r.
S 1507. Cat rdoI th ththty
Sec. 1506. Third posy psymenta .
Sec. 15 E iJ.4 __
Sec. 1510. (mild oopçost psy i
Sec. 1511. ‘ ‘‘e from iiu .r n
Sec. 1512. In ’ fiom . elf .ompl., 7 ...eut _______
Sec. 1512. K ( r .r 1t1 e bu etang and monthly repau ompa. i
Sec. iSit Rwv limitot1
Sec. 1515. D tk form.
Sec. 1515. g 1iay dobfietioe.
Sec. 1517. npIeyment and program.
Sec. 1518 St rin( of p — omianon.
Sec. 1519. A1tor ’i m ’ 1 of anapon
Sm. ism SdoP and ,tandaithmd bece
Sec. 1521. D J-- e ot ankrmat mibmoUnd by retad —
Sec. 15 O t ens
Sec. 15 . ( z for .i4 wptios of omaps
Sec. 1584. Home of opoation.
Sec. 15 tioe of informaboe.
Sm. 1528 Fraud det im.
Sec. 1527. Verth ion.
Sm. ism Phetcçepbm entddobos ea
Sec. 15 . ibs1ity of the
Sec. 1530. R j .— and eotri e odumt3on pr am. ________
153L POnd P p,vçam • r n 00 and meipWded . pp’ oS at
— — mcm . _
i Rated d atm and whelemie food orm .
Sec. 15 . Eài ty oomw of moapoec.
Sec. 1584. of ‘ -
Sen 1530 Fond i’-- 0ntmm$ of em oymet
1531. A inra ’S and r’ ’ ____
Sec. 1527. State y liabdity, qoabty oontro , and aut data p - - l-
Sec. 1531. Qiolity central r’ and penalty moratonum.
Sec. G. aphuml
Se 1540. hInt
154L A orautaOa ‘ ‘ “t mdbonty to ruduce b .
Sec. 1542. ? r ± of fonè .
Sec. ‘ Pumilo Rdo__
S 1- D F doe
Sec. 1561. Ti. of uecoi

99 STAT. 1359

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P.L 99-198 LAWS OF 99th CONG.—lst SESS. Dec. 23
Sec 1564 Temporary emergency food a ance program ____
Sec 1565 Repeal of provisions relating to the food securitY wheat t-es .
Sec 1566 Report on commodity dispLacement.
Sec 1567 Distribution of surplus commoditiee proceUSifl8 egresmente.
Sec 1568 State cooperation
Sec 1569 AuthorizatiOn for funding and related provimolis.
Sec 1570 Reauthorizations
Sec 1571 Report. -
Subtitle C—Nutrition and Miscellaneous Provisions
Sec 1581 School lunch pilot project
Sec 1582. Glearnng of fields.
Sec 1583 Issuance of rules.
Sec 1584 Nutrition education findings.
Sec 1585 Purpose
Sec 1586 Program
Sec 1587 AdministratiOn
Sec. 1588 Authorization of appropriations.
Sec 1589 Nutrition monitonng
TITLE XV1—MARK flNG
Subtitle A—Beef Promotion and Research Act of 1985
Sec. 1601 Amendment to Beef Research and Information Act.
Subtitle B—Pork Promotion. Research. and Conmamer tthrmatioa
Sec 1611 Short title
Sec 1612 Findings and declaration of purpose
Sec 1613 Definitions
Sec. 1614 Pork and pork prcductorders.
Sec 1615 Notice and hearing
Sec 1616 Findingsandiseuanceo(OTders.
Sec. 1617 National Pork Producer. Delegate Body.
Sec. 1618 Selection o(deleg*te body
Sec 1619 National Pork Beard.
Sec 1620 Assessments.
Sec 1621 Permissive provisions.
Sec 1623. Referendum. _____
Sec 1623 Suspension and termination of rder$ .
Sec 1624 Refunds.
Sec 1625 Petition and review .
Sec. 1626 Enforcement.
Sec 1627 Investigations
Sec 1628 Prvcmplion
Sec 1629 Administrative provision
Sec. 1630 Authorization for appropriations.
Sec 1631 EtTect ve date
Subtitle C—Watermelon Research and Pr moI us Act
Sec. 1641 Short title.
Sec. 1642. Findings and declaration of policy.
Sec. 1643. Definitions.
Sec. 1644. issuance of plans.
Sec. 1645. Notice and hearings
Sec 1646. Regulations
Sec. 1647 Required tens in plane.
Sec 164$ permissive tens in plahs
Sec 1649 Assessment procedures.
Sec 1650. Petition and review.
Sec 1651 Enforcement.
Sec. 1652. Investigation and power to aubpecnL
Sec. 1653. Requirement of referendum.
Sec. 1654 Suspension or termination of plans.
Sec 1655 Amendment procedure.
Sec. 1656 Separab ll lt7
Sec. 1657 Authorization of appropriations.
Subtitle D—Marketing Orders
Sec. 1661 Maximum penalty for order violsUotis
Sec. 1662. Limitation on authority to terminate marketing order..
99 STAT. 1360

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Dec. 23 FOOD SECURITY ACT P.L. 99-198
Sec 1663 Confidentiality of informatiOn
Subtitle E.—Grain Inspection
Sec 1671 Grauistandards
Sec 1672 New grain classifications
Sec 1673 Study of grain standards
TITLE xVII—RELATED AND MISCELLANEOUS MA1ItRS
Subtitle A— Processing. Inspection, and Labeling
Sec 1701 Poultry insPeCtion
Sec 1702. InspectiOn and other standard ’ for imported t wA meat food
Sec 1703. j unstiOn and report of labeling and sanitation standards for imports-
tion of agncultural commodities.
Sec. 1704. Potato inspection.
Subtitle 8.—Agricultural Stabilization and Coiservation Committees
Sec. 1711. L ocaboommittec5.
Sec. 1712. County committees. ____
Sec. 1713. Salary and travel expenses
Subtitle C—National Agricultural Policy Cozamonion Act of 1985
S .c. 1121. Short title.
See. 1722. Definitions
See. 1723. F abbehmsnt of cornzrnion.
See. 1724. Conduct of study.
See. 1725. R .po
Sec. 1726. AdministratIon. __
See. 1727. AuthorizatiOn of appropriatloal.
See. tnt Termination.
Subtitle D—NatIonal Aquaculture lmpio euiesit Act of 1985
Sec. 1731. Short title.
See. rpoue. and policy.
Sec. 1734. Natlcital aquaculture development plan.
Sec. 1736. Functions and powers of secretaries.
Sec. 1736. Coordination of national acti’it i eS ragsrding aquaculture.
See. 1737. AuthorizatiOn of appropriations.
Subtitle E-Spsaal Study and Pilot Projects on Futures Tradiag
Sec. 1741. Fl,i ev and declaration of policy.
Sec. 1742. Study y the Department of Agriculture.
S .c. 1743. Pilot r 4 15 -
Subtitle F— ” 1 Welfare
Sec. 175L Fte iI1r ____
S.c. 1752. S ”’.’ds and certifiontlon process .
S.c. 1753. InspectIc
Sec. 1754. Penalty for reuse of trade secrets
Sec. 1756. Inaua.sed penalties for violation of the Act.
Sec. 1758. DefinitIons.
S 1757. Consultation with the Secretary of Health and Human Services.
Sec. 1758. Tei4ii l i nt.
.€.c. 1758. Effadlee d.te.
Subtitle G MIr ’ tis
Sec. 1761. Comm d1ty credit cerporstion storage esntr . c
Sec. 1762. W ’ and climate mnformaties in agriculture.
See. 1763. feed program.
Sec. 1764. Controlled onhetan production metroL
See. 1766. Study c i unlma’ 4 fuel in agricultural 4ni1.f y.
Sec. 1766. Potato adi mny psn- _____
Fungic e. and
See. 171$. User fees for reports publlations. and software.
Sec. 1170. C . tlalit, of Information.
99 STAT. 1361

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P L 99-198 LAWS OF 99th CONG.—lst SESS. Dec. 23
ec. 101
Sec. 1771 Land conveyan to Irwin County. Georgia.
Sec. 1772. Nauonai tree seed laboratory
Sec. 1773. COntrOl of grahoppers and mormon cncketa on all Fedemi Lande.
Sec. 1774 Study of a strategic ethanol reeerve
TITLE XVrU—GENE (AL EFFECTIVE DATE
Sec 1801. Effectave Data.
TITLE I—DAIRY
Subtitle A—Milk Price Producer-Supported Dairy
MILK PRICE SUPPORT, PRICE REDUCTION, AND MILK PRODUCFIdN
TERMINATION PROGRAMS FOR CALENDAR YEARS 1986 THROUGH
1990
Ante. p 818 Sec. 101. (a) Section 201(d) of the Agricultural Act of 1949 (7 US.C.
1446(d)) is amended by striking out paragraphs (1) and (2) and
inserting in lieu thereof the following:
“(1XA) During the period beginning on January 1, 1986, and
ending on December 31, 1990, the price of milk shall be sup..
ported as provided in this subsection.
“(B) During the period beginning on January 1, 1986, and
ending on December 31, 1986, the pnce of milk shall be sup.
ported at a rate equal to $11.60 per hundredweight for milk
containing 3.67 percent milkfat.
“(CXi) During the period beginning on January 1, 1987, and
ending on September 30, 1981, the price of milk shall be sup.
ported at a rate equal to $11.35 per hundredweight for milk
containing 3.67 percent milkfat.
“(ii) Except as provided in subparagraph (1)), during the
period beginning on October 1, 1987, and ending on December
31, 1990. the price of milk shall be supported at a rate equal to
$11.10 per hundredweight for milk containing 3.67 percent
mi lkfat.
“(DXI) Subject to clause (ii), if for any of the calendar years
1988, 1989, and 1990, the level of purchases of milk and the
products of milk under this subsection (less sales under section
7 USC 1427 407 for unrestricted use), as estimated by the Secretary on
January 1 of such calendar year, will exceed 5,000,000,000
pounds (milk equivalent), on January 1 of such calendar year,
the Secretary shall reduce by 50 cents the rate of price support
for milk as in effect on such date.
Prohibition “ (ii) The rate of price support for milk may not be reduced
under clause (i) unless—
“(I) the milk production termination program under
paragraph (3) achieved a reduction in the production of
milk by participants in the program of at least
12,000.000,000 pounds during the 18 months of the program;
or
Contracts “(U) the Secretary submits to Congress a certification,
including a statement of facts in support of the certification
of the Secretary, that reasonable contract offers were ex-
tended by the Secretary under such program but such offers
were not accepted by a sufficient number of producers
making reasonable bids for contracts to achieve such a
reduction in production.
“(E) If for any of the calendar years 1988, 1989. and 1990, the
level of purchases of milk and the products of milk under this
99 STAT. 1362

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1-3
COASTAL WETLANDS PLANNING, PROTECTION, AND RESTORATION ACT
(16 U.S.C. §3951)

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P.L. 101-646 LAWS OF blat CONG.—Znd SESS. Nov. 29
activities, where appropriates that would contribute to the res-
toration or improvement of one or more fish stocks of the Great
Lakes Basin; and
“(2) activities undertaken to accomplish the goals stated in
section 2006.
16 USC 941g “SEC. 2009 AUTHORIZATTON OF APPROPRIATIONS.
“(a) There are authorized to be appropriated to the Director—
“(1) for conducting a study under section 2005 not more than
$4,000,000 for each of fiscal years 1991 through 1994;
“(2) to establish and operate the Great Lakes Coordination
Office under section 2008(a) and Upper Great Lakes Fishery
Resources Offices under section 2008(c), not more than
$4,000,000 for each of fiscal years 1991 throujh 1995; and
“(3) to establish and operate the Lower Great Lakes Fishery
Resources Offices under section 2008(b), not more than
$2,000,000 for each of fiscal years 1991 through 1995.
“(b) There are authorized to be appropriated to the Secretary to
carry out this Act, not more than $1,500,000 for each of fiscal years
1991 through 1995.”.
TITLE Ill—WETLANDS
Planning.
i:n’ t . SEC. 301. SHORT TITLE.
16 USC 3951 This title may be cited as the “Coastal Wetlands Planning, Protec-
tion and Restoration Act”.
16 USC 3951. SEC. 302. DEFINITIONS.
As used in this title, the term—
(1) “Secretary” means the Secretary of the Army;
(2) “Administrator” means the Administrator of the Environ-
mental Protection Agency;
(3) “development activities” means any activity, including the
discharge of dredged or fill material, which results directly in a
more than do minimus change in the hydrologic regime, bottom
contour, or the type, distribution or diversity of hydrophytic
vegetation, or which impairs the flow, reach, or circulation of
surface water within wetlands or other waters;
(4) “State” means the State of Louisiana;
(5) “coastal State” means a State of the United States in, or
bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gull of
Mexico, Long Island Sound, or one or more of the Great Lakes
for the purposes of this title, the term also includes Puerto Rico
the Virgin Islands, Guam, the Commonwealth of the Northera
Mariana Islands, and the Trust Territories of the Pacific
Islands, and American Samoa;
(6) “coastal wetlands restoration project” means any tech-
nically feasible activity to create, restore, protect, or enhance
coastal wetlands through sediment and freshwater djverSi0
water management, or other measures that the Task Force
finds will significantly contribute to the long-term restoration
or protection of the physical, chemical and biological integritY
of coastal wetlands in the State of Louisiana, and includes anY
such activity authorized under this title or under any other
provision of law, including, but not limited to, new pro eCt3
completion or expansion of existing or on-going projects, indiVI
104 STAT. 4778

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4L
No ’. 29 AQUATIC NUISANCE ACT P.L 101-646
Sec. 303
ual phases. portions. or components of projects and operation.
rnaintanence and rehabilitation of completed projects; the pri.
mary purpose of a “coastal wetlands restoration project” shall
not be to provide navigation. imgation or flood control benefits;
(7) “coastal wetlands conservation project” means—
(A) the obtaining of a real property interest in coastal
lands or waters, if the obtaining of such interest is subject
to terms and conditions that will ensure that the real
property will be administered for the long-term conserva-
tion of such lands and waters and the hydrology, water
quality and fish and wildiife dependent thereon; and
(B) the restoration, mana emeflt, or enhancement of
coastal wetlands ecosystems if such restoration, manage-
ment, or enhancement is conducted on coastal lands and
waters that are administered for the long-term conserva-
tion of such lands and waters and the hydrology, water
quality and fish and wildlife dependent thereon;
(8) ‘Governor” means the Governor of Louiai na
(9) “Task Force” means the Louisiana Coastal Wetlands Con-
servation and Restoration ‘ruk Force which shall consist of the -
Secretary, who shall serve as chairman, the Administrator, the
Governor, the Secretary of the Interior, the Secretary of Agri-
culture and the Secretary of Commerce; and
(10) “DIrector” means the Director of the United States Fish
and Wildlife Service.
SEC. 303. PRIORITY LOUISIANA COASTAL WETLANDS RESTORATION 16 USC 3962.
PRO jECTS.
(a) PRIORITY Paojzcr Lzer.—
(1) PuPAE.AT!ON OF U2T.—Withlfl forty-five days after the
date of enactment of this title, the Secretary shall convene the
Task Force to Initiate a process to identify and prepare a list of
coastal wetlands restoration projects in Louisiana to provide for
the long-term conservation of such wetlands and dependent fish
and wildlife populations in order of priority, based on the cost-
effectiveness of such projects In creating, restoring, protecting,
or enhancing coastal wetlands, taking into account the quality
of such coastal wetlands, with due allowance for mM14Cale
projects nece *ry to demonstrate the use of new’ techniques or
materials for coastal wetlands restoration.
(2) TASR roacs p ocv,uR .—The Secretary shall convene
meetings of the Task Force as appropriate to ensure that the list
is produced and transmitted annually to the Congress as re-
Swred by this subsection. If necessary to ensure transmittal .of
the list on a timely basis, the Task Force shall produce the list
by a majority vote of those Task Force members who are
present and votln , except that no coastal wetlands restoration
project shall be placed on the list without the concurrence of the
lead Task Force member that the project is cost effective and
sound from an engineering perspective. Those projects which
potentially impact navigation or flood control on th. lower
Mississippi River System shall be constructed conilitent with
section 304 of this Act.
(3) TRANsMITTAL or UST.—No later than one year after the
date of enactment of this title, the Secretary shall transmit to
the Congress the List of priority coastal wetlands restoration
Projects required by paragraph (1) of this subeection. Thereafter,
104 STAT. 4779

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P.L 101-646 LAWS OF 101st CONG.—Znd SESS. No,.
Sec. 303
the list shall be updated annually by the Task Force membe
and transmitted by the Secretary to the Congress as part of the
Reporta President’s annual budget submission. Annual transrnittal s of
the list to the Congress shall include a status report on each
project and a statement from the Secretary of the Treasury
indicating the amounts available for expenditure to carry out
this title
(4) Liar or co mrrs.—
(A) AREA IDENTIIICATI0N; PROJECT DZ8CRIPTION.—The list
of priority coastal wetlands restoration projects shall in.
dude, but not be limited tofl—
(i) identification, by map or other means, of the
coastal area to be covered by the coastal wetlands
restoration project; and
(ii) a detailed description of each proposed coastal
wetlands restoration project including a justification
for including such project on the list, the proposed
activities to be carried out pursuant to each coastal
wetlands restoration project, the benefits to be realized
by such project, the identification of the lead Task
Force member to undertake each proposed coastal wet-
lands restoration project and the responsibilities of
each other participating Task Force member, an esti-
mated timetable for the completion of each coastal
wetlands restoration project, and the estimated cost of
each project.
(B) PRE-PLAN.—PTiOr to the date on which the plan re-
quired by subsection (b) of this section becomes effective,
such list shall include only those coastal wetlands restora-
tion projects that can be substantially completed during a
five-year period commencing on the date the project is
placed on the list.
(C) Subsequent to the date on which the plan required by
subsection (b) of this section becomes effective, such List
shall include only those coastal wetlands restoration
projects that have been identified in such plan.
(5) FUNDING.—The Secretary 5 h ll , with the funds made
available in accordance with section 306 of this title, allocate
funds among the members of the Task Force based on the need
for such funds and such other factors as the Task Force deema
appropriate to carry out the purposes of this subsection.
(b) Fw a&i. u o Sr*n PROJECT PLANNING.—
(1) PLAN PRLPARArIoM.—The Task Force shall pre a plan
to identify coastal wetlands restoration projects, in order
priority, based on the cost-effectiveness of such projects in
creating, restoring, protecting, or enhancing the long-term con-
servation of coastal wetlands, taking into account the quality of
such coastal wetlands, with due allowance for amall4Cale
projects necessary to demonstrate the use of new techniques or
materials for coastal wetlands restoration. Such restoration
plan shall be completed within three years from the date of
enactment of this title.
(2) Puaros or mz PLAN.—The purpose of the restoratiofl
plan is to develop a comprehensive approach to restore and
prevent the Lose of, coastal wetlands in Louisiana. Such p 1
shall coordinate and integrate coastal wetlands restoratiofl
104 STAT. 4780

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44
Nov. AQUATIC NUISANCE ACT P.L. 101-646
Sec. 303
projects in a manner that will ensure the long-term conserva-
tion of the coastal wetlands of Louisiana.
(3) INTEGRATION OF EXISTING PLANS —In developing the res-
toration plan. the Task Force shall seek to integrate the “Lou-
isiana Comprehensive Coastal Wetlands Feasibility Study”
conducted by the Secretary of the Army and the “Coastal
Wetlands Conservation and Restoration Plan” prepared by the
State of Louisiana’s Wetlands Conservation and Restoration
Task Force.
(4) ELEMENTS OF THE PLAN—The restoration plan developed
pursuant to this subsection shall include—
(A) identification of the entire area in the State that
contains coastal wetlands;
(B) identification, by map or other means, of coastal areas
in Louisiana in need of coastal wetlands restoration
projects;
(C) identification of high priority coastal wetlands res-
toration projects in Louisiana needed to address the areas
identified in subparagraph (B) and that would provide for
the long-term conservation of restored wetlands and
dependent fish and wildlife populations;
(D) a listing of such coastal wetlands restoration projects,
in order of priority, to be submitted annually, incorporating
any project identified previously in lists produced and
submitted under subsection (a) of this section;
(E) a detailed description of each proposed coastal wet-
lands restoration project, including a justification for
including such project on the list;
(F) the proposed activities to be carried out pursuant to
each coastal wetlands restoration project;
(G) the benefits to be realized by each such project;
(H) an estimated timetable for completion of each coastal
wetlands restoration project;
(I) an estimate of the cost of each coastal wetlands res-
toration project;
(J) identification of a lead Task Force member to under-
take each proposed coastal wetlands restoration project
listed in the plan;
(K) consultation with the public and provision for public
review during development of the plan; and
(L) evaluation of the effectiveness of each coastal wet-
lands restoration project in achieving long-term solutions to
arresting coastal wetlands loss in Louisiana.
(5) PLAi MOo!,!CArION.—The Task Force may modify the
restoration plan from time to time as necessary to carry out the
PU poses of this section. -
- (b) Pwi suuiissio .—Upon completion of the restoration
Plan, the Secretary shall submit the plan to the Congress. The
restoration plan shall become effective ninety days after the
date of Its submission to the Congress.
(7) Pt i EVALUATION—Not less than three years after the Reports.
completion and submission of the restoration plan required by
this subsection and at least every three years thereafter, the
Task Force shall provide a report to the Congress containing a
scientific evaluation of the effectiveness of the coastal wet-
lands restoration projects carried out under the plan an crea-
104 STAT. 4781

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Ri. 101-646 LAWS OF 101st CONG —2nd SESS. Nov.
Sec. 303
ting, restoring, protecting and enhancing coastal wetlands i
Louisiana.
(c) COASTAL Wa ’TLAND6 R TTORATI0N PROJECT BENE7rTS.—Where
such a determination is required under applicable law, the net
ecological, aesthetic, and cultural benefits, together with the eco-
nomic benefits, shall be deemed to exceed the costs of any coast.aj
wetlands restoration pr ject within the State which the Task Fo
rinds to contribute significantly to wetlands restoration.
(d) CONSISTENCY —(1) In implementing, maintaining, modifying, ’
rehabilitating navigation, flood control or irrigation projects, othee
than emergency actions, under other authorities, the Secretary, in
consultation with the Director and the Administrator, shall ensuje
that such actions are consistent with the purposes of the restoratipn
plan submitted pursuant to this section.
(2) At the request of the Governor of the State of Louisiana, the
Secretary of Commerce shall approve the plan as an amendment to
the State’s coastal zone management program approved under sec-
tion 306 of the Coastal Zone Management Act of 19’72 (16 US.C.
1455).
(e) FUNDING 0? WETLANDs REsT0IunoN PRojacrs.—The Secretary
shall, with the funds made available in accordance with this title,
allocate such funds among the members of the Task Force to carry
out coastal wetlands restoration projects in accordance with the
priorities set forth in the list transmitted in accordance with this
section. The Secretary shall not fund a coastal wetlands restoration
project unless that project is subject to such terms and conditions as
necessary to ensure that wetlands restored, enhanced or managed
through that project will be administered for the long-term con-
servation of such lands and waters and dependent fish and wildlife
populations.
(f) COST-SHARING.—
(1) FEDERAL SHARZ.—Amounts made available in accordance
with section 306 of this title to carry out coastal wetlands
restoration projects under this title shall provide 75 percent of
the cost of’ such projects.
(2) FEDERAL SHARZ UPON CONSERVATION PLAN APPROVAL—
Notwithstanding the previous paragraph, if the State develops a
Coastal Wetlands Conservation Plan pursuant to this title, and
such conservation plan is approved pursuant to section 304 of
this title, amounts made available in accordance with section
306 of this title for any coastal wetlands restoration project
under this section shall be 85 percent of the cost of the project.
In the event that the Secretary, the Director, and the Adminia”
trator jointly determine that the State is not taking reasonable
steps to implement and administer a conservation pLan devel’
oped and approved pursuant to this title, amounts made avail-
able in accordance with section 306 of this title for any coastal
wetlands restoration project shall revert to 75 percent of the
cost of the project: F -ovided however, that such reversion to the
lower cost share level shall not occur until the Governor has
been provided notice of, and opportunity for hearing on, any
such determination by the Secretary, the Director, and
Administrator, and the State has been given ninety days from
such notice or hearing to take corrective action.
(3) FORM OF STATE SHARE—The share of the cost required of
the State shall be from a non-Federal source. Such State shale
shall consist of a cash contribution of not less than 5 percent of
104 STATS 4782

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47
Nov. 29 AQUATIC NUISANCE ACT P.L. 101-646
the cost of the project The balance of such State share may take Sec. 304
the form of lands, easements, or right-of-way, or any other form
of in-kind contribution determined to be appropriate by the lead
Task Force member.
(4) Paragraphs (1), (2), and (3) of this gubeection shall not
affect the existing cost-sharing agreements for the following
projects: Caernarvon Freshwater Diversion, Davis Pond Fresh-
water Diversion, and Bonnet Carre Freshwater Diversion.
EC 304. LOUISIANA COASTAL WETL4.NDS CONSERVATION PLANNING. 16 USC 3953
(a) DEVELOPMENT 05’ CONSERVATION PLAN.—
(1) AGRu xNT.—The Secretary, the Director, and the
AdmilthtratOr are directed to enter into an agreement with the
Governor, as set forth in paragraph (2) of this subsection, upon
notification of the Governor’s willingness to enter into such
agreement.
(2) TERMs OP AGRUMENT.—
(A) Upon receivthg notification pursuant to paragraph (1)
of this subsection, the Secretary, the Director, and the
Mministrator shall promptly enter into an agreement
(hereafter in this section referred to as the “agreement”)
with the State under the terms set forth in subparagraph
(B) of this paragraph.
(B) The agreement shall— ____
(0 set forth a process by which the State agrees to
develop, in accordance with this section, a coastal wet-
lands conservation plan (hereafter in this section re-
ferred to as the “conservation plan”);
(ii) designate a single agency of the State to develop
the conservation plan;
(lii) assure an opportunity for participation in the
development of the conservation plan, during the plan-
ning period, by the public and by Federal and State
agencie
(lv) obligate the State, not later than three years
after th. date of signing the agreement, unless
extended by the parties thereto, to submit the con-
servation plan to the Secretary, the Director, and the
Administrator for their approval; and
Cv) upon approval of the conservation plan, obligate
the State to implement the conservation plan.
(8) Gpjjns AND As8I,rANcL—Upon the date of signing the
agreement—
(A) the M,niniatrator shall, in consultation with the
Director, with the funds made available in accordance with
section 306 of this title, n’ake grants during the develop-
ment of the conservation plan to assist the designated State
agency in developing such plan. Such grants shall not
exceed 75 percent of the cost of developing the plan; and
(B) the Secretary, the Director, and the Administrator
shall provide t.chnieal assistance to the State to assist it in
the development of the plan.
(b) CONSERVATION PLAN Go u.—If a conservation plan is devel-
OPSd Pursuant to this section, it shall have a goal of achieving no net
of Wetlands in the coastal areas of Louisiana as a result of
dsvelopment activities initiated subsequent to approval of the plan,
104 STAT. 4783

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P.L. 101646 LAWS OF 101st CONG.—2nd SESS. Nov. g
Sec. 304 exclusive of any wetlands gains achieved through implementation of
the preceding section of this title.
(c) EIEME1 ’rrs or CONSERVATION PLAN—The conservation plan
authorized by this section shall include—
(1) identification of the entire coastal area in the State that
contains coastal wetlands;
(2) designation of a single State agency with the responsibility
for implementing and enforcing the plan;
(3) identification of measures that the State shall take in
add ition to existing Federal authority to achieve a goal of no net
loss of wetlands as a result of development activities, exclusive
of any wetlands gains achieved through implementation of the
preceding section of this title;
(4) a system that the State shall implement to account for
gains and losses of coastal wetlands within coastal areas for
purposes of evaluating the degree to which the goal of no net
loss of wetlands as a result of development activities in such
wetlands or other waters has been attained;
(5) satisfactory assurances that the State will have adequate
personnel. funding, and authority to implement the plan;
(6) a program to be carried out by the State for the purpose of
educating the public concerning the necessity to conserve
wetlands;
(7) a program to encourage the use of technology by persons
engaged in development activities that will result in negligibLe
impact on wetlands; and
(8) a program for the review, evaluation, and identification of
regulatory and nonregulatory options that will be adopted by
the State to encourage and assist private owners of wetlands to
continue to maintain those lands as wetlands.
(d) APPROVAL 0? CONSIRVATION Pt.u.—
(1) IN GV4ERAL.—If the Governor submits a conservation plan
to the Secretary, the Director, and the Administrator for their
approval, the Secretary, the Director, and the Administrator
shall, within one hundred and eighty days following receipt of
such plan, approve or disapprove it.
(2) APPROVAL cprrxxu.—The Secretary, the Director, and the
Administrator shall approve a conservation plan submitted by
the Governor, if they determine that—
(A) the State has adequate authority to fully implement
all provisions of such a plan;
(B) such a plan is adequate to attain the goal of no net
loss of coastal wetlands as a result of development activities
and complies with the other requirements of this eectiOn
and
(C) the plan was developed in accordance with terms of
the agreement set forth in subsection (a) of this seCtIOD
(e) MomrIcATIoN 0? CONSERVATION PI.AI1.—
(1) NONCOMPLIANCL—If the Secretary, the Director, and the
Administrator determine that a conservation plan submitted by
the Governor does not comply with the requirements of subseC ’
tion (d) of this section, they shall submit to the Governor a
statement explaining why the plan is not in compliance and
how the plan should be changed to be in compliance.
(2) RECONSIDERATION—If the Governor submits a modifi
conservation plan to the Secretary, the Director, and the
Administrator for their reconsideration, the Secretary, the
104 STAT. 4784

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1-4
EMERGENCY WETLANDS RESOURCES ACT OF 1986
(16 U.S.C. §3901)

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PUBLIC LAW 99—645 [ S. 740]; November 10, 1986
EMERGENCY WETLANDS RESOURCES AC OF 1986
For Legislative History of Act see Report for P.L 99-645 in
Legislative History Section, post
Au Ac to proaOto hi . con. .ivahon of migratory w.tsrfowl and to offs.t or pr.v.n$ this whom..
loss of . $lond , by this ocqehsitlon of w.$Iands and oth.r oswi$tai habitat, and for o .r
Emergency Be it enacted by the Senate and House of Representatives of the
Ce s Act United States of Amer ica in Congress assembled ,
8 , sC 39(i SECTION 1. SHORT TITLE.
note This Act may be cited as the “Emergency Wetlands Resources Act
of 1986”.
16 USC 3901 SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.
(a) FINDINGS.—The Congress finds that—
(1) wetlands play an integral role in maintaining the quality
of life through material contributions to our national economy,
food supply, water supply and quality, flood control, and fish,
wildlife, and plant resources, and thus to the health, safety,
recreation, and economic well-being of all our citizens of the
Nation;
(2) wetlands provide habitat essential for the breeding, spawn-
ing, nesting, migration, wintering and ultimate survival of a
major portion of the migratory and resident fish and wildlife of
the Nation; including migratory birds, endangered species,
commercially and recreationally important finfish, shellfish
and other aquatic organisms, and co tain many unique species
and communities of wild plants;
(3) the migratory bird treaty obligations of the Nation with
Canada, Mexico, Japan, the Union of Soviet Socialist Republics,
and with various countries in the Western Hemisphere require
Federal protection of wetlands that are used by migratory birds
for breeding, wintering or migration and needed to achieve and
to maintain optimum population levels, distributions, and pat-
terns of migration;
(4) wetlands, and the fish, wildlife, and plants dependent on
wetlands, provide significant recreational and commercial bene-
fits, including—
(A) contributions to a commercial marine harvest valued
at over $10,000,000,000 annually;
(B) support for a major portion ot the Nation’s multi-
million dollar annual fur and hide harvest; and
(C) fishing, hunting, birdwatching, nature observation
and other wetland-related recreational activities that gen-
erate billions of dollars annually;
(5) wetlands enhance the water quality and water supply of
the Nation by serving as groundwater recharge areas, nutrient
traps, and chemical sinks;
(6) wetlands provide a natural means of flood and erosion
control by retaining water during periods of high runoff,
thereby protecting against loss of life and property;
100 STAT. 3582

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!‘ ov. 10 WETLANDS RESOURCES ACT P.L. 99-645
Sec. 3
(7) wetlands constitute only a small percentage of the land
area of the United States, are estimated to have been reduced
by half in the contiguous States since the founding of our
Nation, and continue to disappear by hundreds of thousands of
acres each year,
(8) certain activities of the Federal Government have inappro-
priately altered or assisted in the alteration of wetlands,
thereby unnecessarily stimulating and accelerating the loss of
these valuable resources and the environmental and economic
benefits that they provide, and
(9) the existing Federal, State, and private cooperation in
wetlands conservation should be strengthened in order to mini-
mize further losses of these valuable areas and to assure
their management in the public interest for this and future
generations.
(b) PURPoSE—It is the purpose of this Act to promote, in concert Internatwnal
with other Federal and State statutes and programs, the conserva- agree ents
tion of the wetlands of the Nation in order to maintain the public
benefits they provide and to help fulfill international obligations j °
contained in various migratory bird treaties and conventions with Union of Soviet
Canada, Mexico, Japan, the Union of Soviet Socialist Republics, and Socialist
with various countries in the Western Hemisphere by—
(1) intensifying cooperative efforts among private interests
and local, State, and Federal governments for the management
and conservation of wetlands; and
(2) intensifying efforts to protect the wetlands of the Nation
through acquisition in fee, easements or other interests and
methods by local, State, and Federal governments and the
private sector.
SEC. 3. DEFINITIONS. 16 USC 3902
For the purpose of this ActS
(1) The term “Committees” means the Committee on Mer-
chant Marine and Fisheries and the Committee on Interior and
Insular Affairs of the House of Representatives and the
Committee on Environment and Public Works and the Commit-
tee on Energy and Natural Resources of the Senate.
(2) The term “designated unit” means a unit of the National
Wildlife Refuge System designated by the Secretary under sec-
tion 201(aX2).
(3) The term “hydric soil” means soil that, in its undrained
condition, is saturated, flooded, or ponded long enough during a
growing season to develop an anaerobic condition that supports
the growth and regeneration of hydroph rtic vegetation.
(4) The term “hydrophytic vegetation’ means a plant growing
in—
(A) water; or
(B) a substrate that is at least periodically deficient in
oxygen during a growing season as a result of excessive
water content.
(5) The term “wetland” means land that has a predominance
of hydric soils and that is inundated or saturated by surface or
groundwater at a frequency and duration sufficient to support,
and that under normal circumstances does support, a preva-
lence of hydrophytic vegetation typically adapted for life in
saturated soil conditions.
100 STAT. 3583

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P.L 99-645 LAWS OF 99th CONG.—2nd SESS. Nov. 10
Sec. 101
TITLE I—EXTENSION OF WETLANDS LOAN ACT
SEC. 101. EXTENSION OF WRTLANDS LOAN AC!’.
(a) Av .ii. 4 sn.n OF APPROPRIATI0N5.—The first section of the Act
entitled “An Act to promote the conservation of migratory water-
fowl by the acquisition of wetlands, and for other essential water-
fowl habitat, and for other purposes”, approved October 4, 1961 (16
U.S.C. 715k-3), is amended by striking out “September 30, 1986” and
inserting in lieu thereof “September 30, 1988”.
(b) REPAYMENr PROVISIONS.—SeCtion 3 of such Act (16 U.9 C.
715k-5) is amended by striking out the first three sentences.
National TITLE Il—REVENUES FOR REFUGE OPERATIONS AND ThE
Wildlife Refuge MIGRATORY BIRD CONSERVATION FUND
Syetam
16 USC 39fl SEC. 201. SALE OF ADMISSION PERMIT AT CERTAIN REFUGE UNITS.
(a) SALE OF ADMISSION PERMrrs.—(1) Notwithstanding the Land
and Water Conservation Fund Act of 1965 (16 U.S.C. 4601-4 et seq.),
in order to provide additional revenues for the conservation of
wetland resources of the Nation and for the operation and mainte-
nance of refuges—
(A) the Secretary of the Interior may, at units of the National
Wildlife Refuge System designated by the Secretary under para-
graph (2)—
(i) charge fees for admission permits;
(ii) sell Golden Eagle passports and Golden Age passports;
(iii) issue at no charge lifetime admission permits as
authorized in section 4(aX5) of the Land and Water Con.
servation Fund Act of 1965 (16 U.S.C. 4601—4—4601—11);
(B) the amounts collected by the Secretary as a result of the
activities described in subparagraph (A) shall be distributed as
provided in subsection (c).
(2) The Secretary shall designate a unit of the National Wildlife
Refuge System for purposes of this Act if the Secretary determines,
with respect to 8Uch unit, that—
(A) The level of visitation for recreational purposes is high
enough to justify the collection of fees for admission permits for
economic reasons.
(B) There is a practical mechanism in existence for im-
plementing and operating a system of collecting fees for admis-
sion permits.
(C) Imposition of a fee for admission permits is not likely to
result in undue economic hardship for a significant number of
visitors to the unit.
(b) Excal’rloNs.—(l) The Secretary may not require an admission
permit under subsection (aXi) for entry by a person into a des-
ignated unit if such person is the holder of—
(A) a valid migratory bird hunting and conservation stamp
issued under section 2 of the Act of March 16, 1934 (16 U S.C.
718b) (commonly known as the Duck Stamp Act);
(B) a valid Golden Eagle Passport issued under section 4(aXl)
of the Land and Water Conservation Fund Act of 1965 (16 U.S.C.
4601—6a(aX lTh,
(C) a valid Golden Age Passport issued under section 4(aX4) of
such Act; or
100 STAT. 3584

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Nov. 10 WETLANDS RESOURCES ACT P L. 99-645
Sec. 201
(D) a valid lifetime admission permit as authorized in section
4(aX 5 ) of such Act
(2) PermitS for a single visit to any designated unit shall be made
available by the Secretary of the Interior for a reasonable fee, but
not to exceed $3 for individuals or $7 50 per vehicle For purposes of
this subsection, the term “single visit” means a more or less
COfltjflUOUS stay within a designated unit by a person or group
described in subsection (d) Payment of a single visit fee and issu-
ance of a single visit permit shall authorize exits from and re-entries
to a single designated unit for a period of from one to fifteen days
Such period shall be defined for each designated unit by the Sec-
retary based upon a determination of the period of time reasonably
and ordinarily necessary for such a single visit.
(3) Special admission permits for uses such as group activities may
be issued in accordance with procedures and at fees established by
the Secretary.
(4) A person may not be required to purchase an admission permit
under subsection (a)(1) in order to travel by private noncommercial
vehicle over any road or highway—
(AXi) established as part of the National Federal Aid System
(as defined in section 101 of title 23, United States Code); and
(ii) commonly used by the public as a means of travel between
two places which are outside the designated unit; or
(B) to any land in which such person has a property interest if
such land is within any designated unit.
(5) A person may not be required to purchase an admission permit
under subsection (aXi) for entrance or admission to a unit of the
National Wildlife Refuge System created, expanded, or modified by
Public Law 96—487. 16 USC 3101
(c) DIsrIunuTloN or AMOUNTS COLLECTED —Amounts collected “°
from the sale of admission permits under this section and from fees
collected at any unit of the National Wildlife Refuge System under
subsections (b) and (C) of section 4 of the Land and Water Conserva-
tion Fund Act of 1965 (16 U.S.C. 460l-6a (b), Ic)I shall be distributed
as follows:
(A) Thirty per centum shall be available to the Secretary of
the Interior until expended. The Secretary shall use such
amount—
(1) first, to defray the cost of collection,
(ii) next, for operation and maintenance of the collecting
unit; and
(iii) next, for operation and maintenance of all units
within the National Wildlife Refuge System, except those
units created, expanded, or modified by Public Law 96-487.
(B) Seventy percent shall be deposited into the migratory bird
conservation fund established under section 4 of the Act of
- March 16, 1934 (16 U.S.C. 718d).
(d) PERSONS ACCOMPANYING P ai IIT’rxEs.—A person who holds a
stamp, passport, or permit described in subsection (b) shall be
entitled to general entrance into any designated unit, along with—
(1) any persons accompanying such person in a single, private,
noncommercial vehicle; or
(2) where entry to the area is by any means other than single,
private, noncommercial vehicle, the person and any accompany-
ingspouse, children, or parents.
(e) RYSrIUcTIONB.—A permit issued under this section is
nontransferable. Such a permit may not authorize any uses for
100 STAT. 3585

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P.L 99-645 LAWS OF 99th CONG.—2nd SESS. Nov. 10
Sec. 201
which fees are charged under the Land and Water Conservation
Fund Act of 1965 (16 U.S.C. 4601—4 et seq.).
(fl ESTABLISHMENT OF FEES; POSTING or No rIcES.—(1) All fees
established pursuant to this section shall be fair and equitable. In
establishing such fees, the Secretary shall consider the following:
(A) The direct and indirect cost to the Government.
(B) The benefits to the permit holder.
(C) The public policy or interest served.
(D) The comparable fees charged by non-Federal public
agencies.
(E) The economic and administrative feasibility of fee collec-
tion and other pertinent factors.
(2) The Secretary shall require that notice that a fee has been
established under this section—
(A) be prominently posted at each designated unit and at
appropriate locations in each such unit; and
(B) to the extent practicable, be included in publications
distributed at such units.
(g) VOLUNTEZRS.—The Director of the United States Fish and
Wildlife Service may accept services of volunteers to sell admission
permits under this section or to sell Golden Eagle and Golden Age
Passports or Migratory Bird Hunting and Conservation Stamps. The
Director may use funds appropriated or otherwise made available to
the Service to cover the cost of any surety bond that may be
required of a volunteer performing the services authorized under
this subsection.
SEC. 202. PRICE OF MIGRATORY BIRD HUNTING AND CONSERVATION
STAMP.
16 USC 718b Section 2(b) of the Act of March 16, 1934 (16 U.S.C. 718(b)), is
amended in the first sentence—
(1) by striking out “$7.50” and inserting in lieu thereof
“$1O.00 ’;
(2) by striking out “any hunting year” and inserting in lieu
thereof ‘hunting years 1987 and 1988, $12.50 for hunting years
1989 and 1990, and $15.00 for each hunting year thereafter,”;
and
(3) b 7 inserting “available for obligation and” before “attrib-
utable’.
16 USC 3912 SEC. 203. TRANSFERS TO MIGRATORY BIRD CONSERVATION FUND.
Notwithstanding any other provision of law, an amount equal to
the amount of all import duties collected on arms and ammunition,
as specified in subpart A of part 5 of schedule 7 of the Tariff
19 USC 1202 Schedules of the United States, shall, beginning with the next fiscal
year quarter after the date of enactment of this Act, be paid
quarterly into the migratory bird conservation fund established
under section 4 of the Act of March 16, 1934 (16 U.S.C. 718d).
TITLE Ill—STATE AND FEDERAL WETLAND ACQUISITION
16 USC 3921 SEC. 301 NATIONAL WETLANDS PRIORITY CONSERVATION PLAN.
a) IN GENEa L—The Secretary shall establish, and periodicallY
review and revise, a national wetlands pnority conservation plan
which shall specify, on a region-by-region basis or other basis cons d
ered appropnate by the Secretary, the types of wetlands and ‘D
100 STAT. 3586

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No ’ . 10 WETLANDS RESOURCES ACT P.L. 99-645
Sec. 303
terests in wetlands which should be given priority with resp ct to
Federal and State acquisition
(b) CONSULTATION —The Secretary shall establish the plan re-
quired by subsection (a) after consultation with—
(1) the Administrator of the Environmental Protection
Agency,
(2) the Secretary of Commerce,
(3) the Secretary of Agriculture, and
(4) (the chief executive officer of) each State State and local
(C) FACTORS To BE CONSIDERED —The Secretary, in establishing governments
the plan required by subsection (a), shall consider—
(1) the estimated proportion remaining of the respective types
of wetlands which existed at the tine of European settlement,
(2) the estimated current rate of loss and the threat of future
losses of the respective types of wetlands, and
(3) the contributions of the respective types of wetlands to—
(A) wildlife, including endangered and threatened spe-
cies, migratory birds, and resident species;
(B) commercial and sport fisheries, - Fish and fi hing
(C) surface and ground water quality and quantity, and Water
flood control, Flood control
(D) outdoor recreation, and
(E) other areas or concerns the Secretary considers
appropriate. *
SEC. 302. REMOVAL OF RESTRICTION ON ACQUISITION.
Section 7(aXl) of the Land and Water Conservation Fund Act of
1965 (16 U S.C. 460l-9(aXl)) is amended by striking out “national
wildlife refuge areas under section 7(aX5) of the Fish and Wildlife
Act of 1956 (16 U S C. 742fl5)) except migratory waterfowl areas
which are authorized to be acquired by the Migratory Bird Con-
servation Act of 1929, as amended (16 U SC. 715—715s)’ and insert-
ing in lieu thereof “national wildlife refuge areas under section
7(aX4) of the Fish and Wildlife Act of 1956 (16 U S C. 742(f)(aX4)) and
wetlands acquired under section 304 of the Emergency Wetlands
Resources Act of 1986”.
SEC. 303. INCLUSION OF WETLANDS IN COMPREHENSIVE STATEWIDE OUT-
DOOR RECREATION PLANS.
Section 6 of the Land and Water Conservation Fund Act of 1965
(16 U.S.C. 4601-8) is amended—
(1) in subsection (d), by adding at the end thereof the following
new paragraph:
•“For fiscal year 1988 and thereafter each comprehensive state-
wide outdoor recreation plan shall specifically address wetlands
within that State as an important outdoor recreation resource as a
peerequisite to approval, except that a revised comprehensive state-
wide outdoor recreation plan shall not be required by the Secretary,
if a State submits, and the Secretary, acting through the Director of
the National Park Service, approves, as a part of and as an adden-
dum to the existing comprehensive statewide outdoor recreation
elan, a wetlands priority plan developed in consultation with the
state agency with responsibility for fish and wildlife resources and
Consistent with the national wetlands priority conservation plan
developed under section 301 of the Emergency Wetlands Resources
Act or, if such national plan has not been completed, consistent with
the provisions of that section”;
100 STAT. 3587

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P.L 99-645 LAWS OF 99th CONG.—2nd SESS. Nov. 10
Sec. 303
(2) in subsection (eXi), b r inserting 1 in the first sentence
thereof, after “For the acquisition of land, waters, or interests
in land or waters” the following: “, or wetland areas and in-
terests therein as identified in the wetlands provisions of the
comprehensive plan”; and
(3) in subsection (0(3), by adding at the end thereof the
followin . “: Provided, That wetland areas and interests therein
as identified in the wetlands provisions of the comprehensive
plan and proposed to be acquired as suitable replacement prop-
erty within that same State that is otherwise acceptable to the
Secretary, acting through the Director of the National Park
Service, shall be considered to be of reasonably equivalent
usefulness with the property proposed for conversion.”.
SEC. 304. FEDERAL ACQUISITION.
16 USC 3922. The Secretary is authorized to purchase wetlands or interests in
wetlands, which are not acquired under the authority of the Migra-
tory Bird Conservation Act of 1929 (16 U.S C. 715—715s), consistent
with the wetlands priority c,nservation plan established under
section 301.
16 USC 3923 SEC. 305. RESTRICTION ON USE OF EMINENT DOMAIN IN ACQUISITIONS.
5 and The powers of condemnation or eminent domain shall not be used
in the acquisition of wetlands under any provision of this Act where
such wetlands have been constructed for the purpose of farming or
ranching, or result from conservation activities associated with
farming or ranching.
TiTLE IV—WETLANDS INVENTORY AND TREND ANALYSIS
SEC. 401. NATIONAL WETLANDS INVENTORY PROJECT.
16 USC 3931 (a) IN GENERAL.—The Secretary, acting through the Director of
the United States Fish and Wildlife Service, shall continue the
National Wetlands Inventory Project and shall—
(1) produce, by September 30, 1988, National Wetlands Inven-
tory maps for the areas that have been identified by the Service
as top priorities for mapping, including—
(A) the entire coastal zone of the United States;
(B) floodplains of major rivers; and
(C) the Prairie Pothole region;
(2) produce, by September 30, 1998, National Wetlands Inven-
tory maps for those portions of the contiguous United States for
which final maps have not been produced earlier
Alaska. (3) produce, as soon as practicable, National Wetlands Inven-
tory maps for Alaska and other noncontiguous portions of the
United States; and
Report. (4) produce, by September 30, 1990, and at ten-year intervals
thereafter, reports to update and improve the information con-
tained in the report dated September 1982 and entitled “Status
and Trends of Wetlands and Deepwater Habitat in the Cotermi-
nous United States, 1950’s to 197 0 ’s”.
state . iocai (b) N0TICE.—The Secretary shall notify the appropriate State and
governments local units of government at such time as he proposes to begin map
preparation under subsection (a) in an area. Such notice shall
include, but is not limited to, the identification of the area to be
mapped, the proposed schedule for completion, and the identifica-
tion of a source for further information.
100 STAT 3588

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Nov 10 WETLANDS RESOURCES ACT P.L. 99$45
Sec. 402
SEC. 402 REPORTS TO CONGRESS. 16 USC 3932
(a) IN GENERAL —The Secretary, in consultation and cooperation
with the Secretary of Agriculture, shall prepare and submit to the
committees—
(1) by March 30, 1987, a report regarding the status, condition,
and trends of wetlands in the lower Mississippi alluvial plain
and the prairie pothole regions of the United States; and
(2) by September 30, 1987, a report regarding trends of wet-
lands in all other areas of the United States.
(b) CONTENTS OF REPORTS —The reports required under subsection
(a) shall contain—
(1) an analysis of the factors responsible for wetlands destruc-
tion, degradation, protection and enhancement;
(2) a compilation and analysis of Federal statutory and regu- Taxes
latory mechanisms, including expenditures, financial assist-
ance, and tax provisions which—
(A) induce wetlands destruction or degradation; or
(B) protect or enhance wetlands;
(3) a compilation and analysis of Federal expenditures result-
ing from wetlands destruction, degradation, protection or
enhancement;
(4) an analysis of public and private patterns of ownership of
wetlands;
(5) an analysis of the environmental and economic impact of
eliminating or restricting future Federal expenditures and
financial assistance, whether direct or indirect, which have the
effect of encouraging the destruction, degradation, protection or
enhancement of wetlands, including—
(A) public works expenditures;
(B) assistance programs such as price support programs, Loans
commodity loans and purchase programs and disaster
assistance programs;
(C) soil conservation programs; and
(D) certain income tax provisions; Taxes
(6) an analysis of the environmental and economic impact of Taxes
failure to restrict future Federal expenditures, financial assist-
ance, and tax provisions which have the effect of encouraging
the destruction, degradation, protection or enhancement of wet-
lands, including—
(A) assistance for normal silviculture activity (such as Agriculture and
plowing, seeding, planting, cultivating, minor drainage, or ricu1tura1
harvesting for the production of fiber or forest products); commodities
(B) Federal expenditures required incident to studies, Forests d
evaluations, design, construction, operation, maintenance, forest U
or rehabilitation of Federal water resource development
• activities, including channel improvements;
(C) the commodity loans and purchases program and Loans
cotton, feed grain, wheat, and rice production stabilization Agriculture and
programs administered by the Department of Agriculture;
and
(D) Federal expenditures for the construction of publicly Highways
owned or publicly operated highways, roads, structures, or
facilities that are essential links in a larger network or
system; and
(7) recommendations. for the conservation of wetlands re- State and local
sources based on an evaluation and comparison of all manage- governments
100 STAT. 3589

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P.L 99-645 LAWS OF 99th CONG.—2nd SESS. Nov. 10
Sec. 402
ment alternatives, and combinations of management alter-
natives, such as State and local actions, Federal actions, and
initiatives by private organizations and individuals.
TITLE V—MISCELLANEOUS PROVISIONS
16 USC 668dd SEC. 501. MIGRATORY BIRD TREATY ACT.
Section 6(b) of the Act of July 3, 1918 (16 U.S.C. 707(b)) is amended
by deleting “shall” the first place it appears therein and by insert-
ing in lieu thereof “shall knowingly”.
SEC. 502. BAYOU SAUVAGE URBAN NATIONAL WILDLIFE REFUGE.
(a) PuRPos OF Rmiox.—The purposes of the Bayou Sauvage
Urban National Wildlife Refuge are—
(1) to enhance the populations of migratory, shore, and
wading birds within the refuge;
(2) to encourage natural diversity of fish and wildlife species
within the refuge;
(3) to protect the endangered and threatened species and
otherwise to provide for the conservation and management of
fish and wildlife within the refuge;
(4) to fulfill the international treaty obligations of the United
States respecting fish and wildlife;
(5) to protect the archeological resources of the refuge;
(6) to provide opportunities for scientific research and
environmental education, with emphasis being given to the
ecological and other values of wetlands; and
(7) to provide opportunities for fish and wildlife oriented
public uses and recreation in an urban setting.
(b)ACQUISFTION AND ESTABLISHMENT OF REFUGE.—
Lowajana. (1) AcQulsrnoN.—Within four years after the effective date of
this section the Secretary of the Interior (hereinafter in this Act
referred to as the “Secretary”) shall acquire the approximately
nineteen thousand acres of lands and waters, and interests
therein, located in Orleans Parish, Louisiana, that are depicted
on the map entitled “Bayou Sauvage Urban National Wildlife
Refuge”, dated September 15, 1986, and on file at the United
States Fish and Wildlife Service, Department of the Interior.
The lands and waters, and interests therein, acquired under this
paragraph comprise the Bayou Sauvage Urban National Wild-
life Refuge. The acquisition shall be made through donation,
purchase with donated or appropriated funds, or exchange, or
througii any combination of the foregoing.
Federal (2) ESTABLISHMENT —At such time as sufficient lands and
Register, waters, and interests therein, have been acquired under para-
publication graph (1) to constitute an initial area that can be administered
to carry out the purposes set forth in subsection (a), the Sec-
retary shall establish the Bayou Sauvage Urban National Wild-
life Refuge by publication of notice to that effect in the Federal
Register.
(3) BOUNDARY ADJUSTMEN1’S.—The Secretary may make such
adjustments with respect to the boundary of the Bayou Sauvage
Urban National Wildlife Refuge as may be necessary to facili-
tate the acquisition of lands and waters, and interests therein,
for the refuge and to facilitate the administration of the refuge.
(c) ADMINISTRATION OF REFUGE.—The Secretary shall administer
all lands and waters, and interests therein, acquired under subsec-
100 STAT. 3590

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‘4-’
Nov. 10 WETLANDS RESOURCES ACT P.L. 99-645
Sec. 502
tion (b) in accordance with the provisions of the National Wildlife
Refuge System Administration Act of 1966 (16 U S C 668dd-668ee)
to carry out the purposes set forth in subsection (a) The Secretary
may utilize such additional statutory authority as may be available
to him for the conservation and development of wildlife and natural
resources, the development of outdoor recreation opportunities, and
interpretive environmental education as he considers appropriate to
carry out such purposes. Within two years after the effective date of
this section, the Secretary shall complete a master plan for the
development of the Bayou Sauvage Urban National Wildlife Refuge
(d) AumoRIzATION OF APPROPRIATIONS —There are authorized to
be appropriated to the Department of the Interior—
(1) from funds not otherwise appropriated from the Land and
Water Conservation Fund, such sums as may be necessary for
the acquisition of lands and waters, and interests therein, for
the Bayou Sauvage Urban National Wildlife Refuge; and
(2) $5,000,000 for the development of the reiuge.
The moneys appropriated under subparagraphs (1) and (2) shall
remain available until expended.
(e) EFFECTIVE DATE —This section takes effect on the later of the
date of enactment of this Act or October 1, 1986
Approved November 10, 1986.
L ISLATWE HISTORY—S 740 (HR. 1203)
HOUSE REPORTS: No 99-86. Pt. 1 accompanying H ft 1203 (Comm on Merchant
Marine and Fisheries)
SENATE REPOI 1S No 99-445 (Comm on Environment and Public Works).
CONGR SIONAL RECX)RD, Vol. 132 (1986)-
Oct. 3, considered and passed Senate
Oct. 14, considered and passed House
100 STAT. 3591

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1-5
NORTH AMERICAN WETLANDS CONSERVATION ACT OF 1989
(16 U.S.C.A. §4401)
(Reserved due to length)

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1-6
COASTAL ZONE MANAGEMENT ACT
(16 U.S.C. §1451)
(Reserved due to length - Index Provided)

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COASTAL ZONE MANAGEMENT
COASTAL ZONE MANAGEMENT ACT OF 1972 [ CZMA § ]
(16 U.S.C.A. § 1451 to 1464)
CHAPTER 33—COASTAL ZONE
MANAGEMENT
Sec.
1451. Congressional findings.
1452 Congressional declaration of policy.
1453. Definitions.
1454. Management program development grants.
(a) Authorization
(b) Program requirements
(c) Limits on grants.
(d) Grants for completion of development and
implementation of management programs;
limits and eligibility requirements.
(e) Allocation of grants.
(f) Reversion of unobligated grants.
(g) Grants to other political subdivisions.
(h) Submission of program for review and ap
proval.
(i) Expiration date of grant authority.
1455. Adrmmstrative grants.
(a) Authorization; matching funds.
(b) Grants to coastal States; requirements
(c) - Allocation of grants to coastal States
(d) Mandatory adoption of State management
program for coastal zone.
(e) Amendment or modification of State manage-
ment program for coastal zone.
1455a Coastal resource improvement program.
(a) Definitions.
(b) Resource management improvement grants
(c) Uses, terms and conditions of grants.
(d) State matching contributions; ratio; maxi-
mum amount of grants.
(e) Allocation of grants to local governments and
other agencies.
(f) Other technical and financial assistance.
1455b. Protecting coastal waters.
(a) In general
(b) Program contents.
(c) Program submission, approval, and imple-
mentation.
(d) Technical assistance.
(e) Inland coastal zone boundaries.
(f) Financial assistance.
(g) Guidance for coastal nonpoint source pollu-
tion control.
(h) Authorizations of appropriations.
(i). Definitions.
1456. Coordination and cooperation.
(a) Federal agencies.
(b) Adequate consideration of views of Federal
agencies.
(c) Consistency of Federal activities with State
management programs; Presidential ex-
emption; certification.
Sec.
1456 Coordination and cooperation.
(d) Applications of local governments for Federal
assistance, relationship of activities with
the enforceable policies of an approved
coastal State’s management program.
(e) Construction with other laws.
(f) Construction with existing requirements of
water and air pollution programs
(g) Concurrence with programs which affect in-
land areas.
(h) Mediation of disagreements.
(i) Application fee for appeals.
1456a. Coastal Zone Management Fund.
(a) Administration and coordination by Secre-
tary; financial assistance; audit; rules and
regulations.
(b) Grants; calculations; purposes and priority
of proceeds; supervision by Secretary.
(c) Grants; study and planning; consequences
affecting coastal zone relating to new or
expanded energy facilities; limits on
grants.
(d) Loans; coastal energy activity requiring new
or improved public facilities or services,
guarantees; relief from inability to meet
obligations.
(e) Rules and regulations; financial assistance,
formula, and procedures; criteria for re-
view, criteria and procedures for repay-
ment; loan requirements, terms, and condi-
tions; interest rates.
(f) Guarantees; terms and conditions, full faith
and credit, fees, interest; payments; de-
faults; enforcement by Attorney General;
insufficient funds
(g) Eligibility requirements; apportionment of
assistance.
(h) Coastal Energy Impact Fund; establishment
(i) Land use or water use decisions, intercession
of Secretary prohibited.
(j) Report to Congress; evaluations.
(k) Basis of Secretary’s administration of finan-
cial assistance.
(1) Definitions.
1456b, Coastal zone enhancement
(a) Coastal zone enhancement objective defined.
(b) Limits on grants.
(c) Evaluation of State proposals by Secretary.
(d) Promulgation of regulations by Secretary.
(e) No State contribution required
(f) Funding.
(g) Eligibility; suspension of State for noncom-
pliance.
1456c. Technical assistance.
1457. Public hearings.
132

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133
Se
i453
Review of performance.
(a) Evaluation of adherence with terms of
grants
(b) Public comments, notice of public meetings;
reports.
(c) Suspension of financial assistance for non-
compliance; notification of Governor by
Secretary; length of suspension.
(d) Withdrawal of approval of program; with-
drawal of financial assistance.
(e) Notice and hearing.
(f) Repealed.
1459. Records and audit
(a) Maintenance of records by recipients of
grants or financial assistance.
(b) Access by Secretary and Comptroller General
to records, books, etc, of recipients of
grants or financial assistance for audit and
examination
1460. Walter B. Jones excellence in coastal zone man-
agement awards.
(a) Establishment
(b) Annual selection of recipients
(c) Solicitation of nominations from coastal
states; consultation with experts.
(d) Solicitation of nominations from coastal
States and the National Sea Grant College
Program.
(e) Funding; types of awards.
1461. National Estuarine Research Reserve System.
(a) Establishment of System.
(b) Designation of National Estuarine Reserves.
(c) Estuarine Research Guidelines.
CROSS REFERENCES
Adjacent coastal state with approved management program under
this chapter. issuance of license for—
Deepwater port, see sections 1503 and 1508 of Title 33, Navi-
gation and Navigable Waters.
Ocean thermal energy conversion facility, see sections 9111
and 9115 of TItle 42, The Public Health and Welfare
Coastal Barrier Resources System—
Availability of federal expenditures or financial assistance for
projects under this chapter, see section 3505 of this title.
Report to Congress to contain conservation recommendations
based on management plans approved under this chap-
ter, see section 3509 of this title.
Construction of this chapter with Outer Continental Shelf Lands
Act, see section 1866 of Title 43, Public Lands
Development and production pursuant to oil and gas lease in outer
Continental Shelf, other than Gulf of Mexico, effect of
management program under this chapter on approval, see
section 1351 of Title 43.
State recreational boating safety and facilities ixnprovenient pro-
gram-
Approval if consultation with state officials responsible for
program under this chapter, see section 13102 of Title
46, Shipping
Guidelines and standards for to include environmental stan-
dards consistent with this chapter, see section 13101 of
Title 46
Sec.
1461
16 § 145.
CZMA § 302
National Estuarine Research Reserve System.
(d) Promotion and coordination of Estuarine re-
search.
(e) Financial assistance.
(f) Evaluation of System performance.
(g) Report
1462. Coastal zone management reports.
(a) Biennial reports.
(b) Recommendations for legislation.
(C) Review of other federal programs; report to
Congress.
1463. Rules and regulations.
1463a. Omitted.
1463b National Coastal Resources Research and Devel-
opment Institute.
(a) Establishment by Secretary; administration.
(b) Purposes of Institute
(c) Determination of Institute policies.
(d) Establishment of Advisory Council; functions
and composition.
(e) Administration of Institute.
(f) Evaluation of Institute by Secretary.
(g) Report to Secretary.
(h) Access to Institute books, records and docu-
ments.
(i) Statute of Institute employees.
(j) Authorization of appropriations.
1464 Authorization of appropriations.
(a) Sums appropriated to Secretary.
(b) Sums appropriated to Fund.
(c) Limitations.
(d) Reversion to Secretary of unobligated Sta
funds; availabthty of funds.
CODE OF FEDERAL REGULATIONS
Coastal energy impact program, see 15 CFR 931 1 et seq
Federal consistency with approved coastal management programs,
see 15 CFR 930 1 et seq.
Program development and approval, see 15 CFR 923 1 et seq.
Program development grants, see 15 CFR 926 1 et seq.
WESTLAW ELECrRONIC RESEARCH
See WESTLAW guide following the Explanation pages of this
pamphlet.
COASTAL ZONE MANAGEMENT
Related Provisions
See, al.so, Federal Land Policij and Management, 48 U.S.C.A. § 1701 et seq., post and
Outer Continental Shelf Resource Management, 48 U.S.C.A. 1801 et seq., post.
§ 1451. Congressional findings (CZMA
§ 302]
The Congress finds that—
(a) There is a national interest in the effective
management, beneficial use, protection, and de-
velopment of the coastal zone.
(b) The coastal zone is rich in a variety of
natural, commercial, recreational, ecological, in-
dustrial, and esthetic resources of immediate ar ’
potential value to the present and future v
being of the Nation-

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1-7
EXECUTIVE ORDER 12630 - 53 8859
“Governmental Actions and Interference with Constitutionally
Protected Property Rights”

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EXECUTIVE ORDERS
No 12629
determination. I hereby extend the duration of that period to March 10, 1989
Executive Order No. 12587 3 sha11 be superseded on the effective date of this
Executive Order.
THE WHITE HOUSE.
March 9. 1988.
Executive Order 12830 of March 15, 1988
Governmental Actions and Interference With Constitutionally
Protected Property Rights
53 F R. 8859
By the authority vested in me as President by the Constitution and laws of the
United States of America, and In order to ensure that government actions are
undertaken on a well-reasoned basis with due regard for fiscal accountability,
for the financial impact of the obligations imposed on the Federal government
by the Just Compensation Clause of the Fifth Amendment, and for the
Constitution. it is hereby ordered as follows:
Section 1. Purpose. (a) The Fifth Amendment of the United States Constitution
provides that private property shall not be taken for public use without just
compensation. Government historically has used the formal exercise of the
power of eminent domain, which provides orderly processes for paying just
compensation, to acquire private property for public use. Recent Supreme
Court decisions, however, in reaffirming the fundamental protection of private
property rights provided by the Fifth Amendment and in assessing the nature
of governmental actions that have an impact on constitutionally protected
property rights, have also reaffirmed that governmental actions that do not
formally invoke the condemnation power, including regulations. may result in
a taking for which just compensation is required.
(b) Responsible fiscal management and fundamental principles of good gov-
ernment require that government decision-makers evaluate carefully the effect
of their administrative, regulatory, and legislative actions on constitutionally
protected property rights. Executive departments and agencies should review
their actions carefully to prevent unnecessary takings and should account in
decision-making for those takings that are necessitated by statutory mandate.
(c) The purpose of this Order is to assist Federal departments and agencies in
undertaking such reviews and in proposing. planning, and implementing ac-
3 42USCA §2i55
B8

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EXECUTIVE ORDERS
No 12630
tions with due regard for the constitutional protections provided by the Fifth
Amendment and to reduce the risk of undue or inadvertent burdens on the
public fisc resulting from lawful governmental action. In furtherance of the
purpose of this Order, the Attorney General shall, consistent with the princi-
ples stated herein and in consultation with the Executive departments and
agencies. promulgate Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings to which each Executive department or agency shall
refer in making the evaluations required by this Order or in otherwise taking
any action that is the subject of this Order. The Guidelines shall be promulgat-
ed no later than May 1. 1988. and shall be disseminated to all units of each
Executive department and agency no later than July 1. 1988. The Attorney
General shall, as necessary. update these guidelines to reflect fundamental
changes in takings law occurring as a result of Supreme Court decisions.
Sec. 2. Definitions. For the purpose of this Order: (a) “Policies that have
takings implications” refers to Federal regulations. proposed Federal regula-
tions, proposed Federal legislation, comments on proposed Federal legislation.
or other Federal policy statements that, if implemented or enacted. could
effect a taking. such as rules and regulations that propose or implement
licensing. permitting. or other condition requirements or limitations on private
property use, or that require dedications or exactions from owners of private
property. “Policies that have takings implications” does not include:
(1) Actions abolishing regulations. discontinuing governmental programs. or
modifying regulations in a manner that lessens interference with the use of
private property:
(2) Actions taken with respect to properties held in trust by the United States
or in preparation for or during treaty negotiations with foreign nations.
(3) Law enforcement actions involving seizure. for violations of law. of
property for forfeiture or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and Stdte or
local land-use planning agencies regarding planned or proposed State or local
actions regulating private property regardless of whether such communica-
lions are initiated by a Federal agency or department or are undertaken in
response to an invitation by the State or local authority:
(6) The placement of military facilities or military activities involving the use
of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement functions
thgreunder) but not including the U.S. Army Corps of Engineers civil works
program.
(b) Private property refers to all property protected by the Just Compensation
Clause of the Fifth Amendment.
(c) “Actions’ refers to proposed Federal regulations, proposed Federal legisla-
hon. comments on proposed Federal legislation. applications of Federal regu-
latlons to specific property, or Federal governmental actions physically invad-
ing or occupying private property. or other policy statements or actions related
B9

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EXECUTIVE ORDERS
No 12630
to Federal regulation or direct physical invasion or occupancy. but does not
include:
(1) Actions in which the power of eminent domain is formally exercised:
(2) Actions taken with respect to properties held in trust by the United States
or in preparation for or during treaty negotiations with foreign nations;
(3) Law enforcement actions involving seizure, for violations of law, of
property for forfeiture or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and State or
local land-use planning agencies regarding planned or proposed State or local
actions regulating private property regardless of whether such communica-
tions are initiated by a Federal agency or department or are undertaken in
response to an invitation by the State or local authority:
(6) The placement of military facilities or military activities involving the use
of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement functions
thereunder). but not including the U S. Army Corps of Engineers civil works
program.
Sec. 3. General Principles. In formulating or implementing policies that have
takings implications, each Executive department and agency shall be guided
by the following general principles:
(a) Governmental officials should be sensitive to. anticipate. and account for.
the obligations imposed by the Just Compensation Clause of the Fifth Amend.
ment in planning and carrying out governmental actions so that they do not
result In the imposition of unanticipated or undue additional burdens on the
public fisc.
(b) Actions undertaken by governmental officials that result in a physical
invasion or occupancy of private property. and regulations imposed on private
property that substantially affect its value or use. may constitute a taking of
property. Further, governmental action may amount to a taking even though
the action results in less than a complete deprivation of all use or value, or of
all separate and distinct interests in the same private property and even if the
action constituting a taking is temporary in nature.
(c) Government officials whose actions are taken specifically for purposes of
protecting public health and safety are ordinarily given broader latitude by
courts before their actions are considered to be takings. However, the mere
assertion of a public health and safety purpose is insufficient to avoid a
taking. Actions to which this Order applies asserted to be for the protection of
public health and safety. therefore, should be undertaken only in response to
real and substantial threats to public health and safety, be designed to
advance significantly the health and safety purpose, and be no greater than is
necessary to achieve the health and 8afety purpose.
(d) While normal governmental processes do not ordinarily effect takings.
undue delays in decision.making during which private property use if inter-
fered with carry a risk of being held to be takings. Additionally, a delay in
BiD

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EXECUTIVE ORDERS
No 12630
processing may increase significantly the size of compensation due if a taking
is later found to have occurred.
(e) The Just Compensation Clause is self-actuating. requiring that compensa-
tion be paid whenever governmental action results in a taking of private
property regardless of whether the underlying authority for the action con tern-
plated a taking or authorized the payment of compensation Accordingly.
governmental actions that may have a significant impact on the use or value
of private property should be scrutinized to avoid undue or unplanned bur-
dens on the public fisc.
Sec. 4. Department and Agency Action. In addition to the fundamental princi-
ples set forth in Section 3, Executive departments and agencies shall adhere,
to the extent permitted by law, to the following criteria when implementing
policies that have takings implications:
(a) When an Executive department or agency requires a private party to
obtain a permit in order to undertake a specific use of, or action with respect
to, private property. any conditions imposed on the granting of a permit shall:
(1) Serve the same purpose that would have been served by a prohibition of
the use or action; and
(2) Substantially advance that purpose.
(b) When a proposed action would place a restriction on a use of private
property, the restriction imposed on the use shall not be disproportionate to
the extent to which the use contributes to the overall problem that the
restriction is imposed to redress.
(c) When a proposed action involves a permitting process or any other
decision-making process that will interfere with, or otherwise prohibit. the use
of private property pending the completion of the process. the duration of the
process shall be kept to the minimum necessary.
(d) Before undertaking any proposed action regulating private property use for
the protection of public health or safety. the Executive department or agency
involved shall, in internal deliberative documents and any submissions to the
Director of the Office of Management and Budget that are required:
(1) Identify clearly, with as much specificity as possible. the public health or
safety risk created by the private property use that is the subject of the
proposed action;
(2) Establish that such proposed action substantially advances the purpose of
protecting public health and safety against the specifically identified risk;
- (3) Establish to the extent possible that the restrictions imposed on the private
property are not disproportionate to the extent to which the use contributes to
the overall risk; and
(4) Estlmate. to the extent possible, the potential cost to the government in the
event that a court later determines that the action constituted a taking
In Instances In which there is an immediate threat to health and safety that
constitutes an emergency requiring immediate response. this analysis may be
done upon completion of the emergency action.
Bli

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EXECUTIVE ORDERS
No 12630
Sec. 5. Executive Department and Agency ImplementatIOn. (a) The head of
each Executive department and agency shall designate an official to be
responsible for ensuring compliance with this Order with respect to the
actions of that department or agency.
(b) Executive departments and agencies shall, to the extent permitted by law.
identify the takings implications of proposed regulatory actions and address
the merits of tho8e actions in light of the identified takings implications, if any.
in all required submissions made to the Office of Management and Budget.
Significant takings implications should also be identified and discussed in
notices of proposed rule-making and messages transmitting legislative propos-
als to the Congress. stating the departments’ and agencies’ conclusions on the
takings issues.
(c) Executive departments and agencies shall identify each existing Federal
rule and regulation agaiast which a takings award has been made or against
which a takings claim is pending including the amount of each claim or award
A “takings” award has been made or a “takings” claim pending if the award
was made, or the pending claim brought. pursuant to the Just Compensation
Clause of the Fifth Amendment. An itemized compilation of all such awards
made in Fiscal Years 1985. 1986, and 1987 and all such pending claims shall be
submitted to the Director. Office of Management and Budget. on or before May
16. 1988.
(d) Each Executive department and agency shall submit annually to the
Director. Office of Management and Budget. and to the Attorney General an
itemized compilation of all awards of just compensation entered against the
United States for takings, including awards of interest as well as monies paid
pursuant to the provisions of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, 42 U.S C. 4601.
(e)(1) The Director, Office of Management and Budget. and the Attorney
General shall each. to the extent permitted by law, take action to ensure that
the policies of the Executive departments and agencies are consistent with the
principles. criteria, and requirements stated in Sections 1 through 5 of this
Order. and the Office of Management and Budget shall take action to ensure
that all takings awards levied against agencies are properly accounted for in
agency budget submissions.
(2) In addition to the guidelines required by Section 1 of this Order, the
Attorney General shall, in consultation with each Executive department and
agency to which this Order applies, promulgate such supplemental guidelines
as may be appropriate to the specific obligations of that department or agency.
Sec. 6. Judicial Review. This Order is intended only to improve the internal
management of the Executive branch and is not intended to create iight or
benefit. substantive or procedural. enforceable at law by a party against the
United States. its agencies. Its offIcers. or any person.
THE W HOUSE.
March 15. 1988
B12

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1-8
EXECUTiVE ORDER 11990 -42 26961
“Protection of Wetlands”

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Sj
EXECUTIVE ORDERS
trails of the public lands, Immediately close such areas or trails to the
type of off-road ‘ehicle causing such effects, until such time as he de-
termines that such adverse effects ha%e been eliminated and that measures
have been implemented to prevent future recurrence
‘(b) Each respecti e agency head is authorized to adopt the policy
that portions of the public lands within his jurisdiction shall be closed
to use by off-road ‘ehicles except those areas or trails which are suitable
and specifically designated as open to such use pursuant to Section 3
of this Order
JIIfMY CARTER
TRE WEITE HousE,
May 24, 1977
No. 11990
May 24, 1977, 42 F.R. 26961
PROTECTION OF WETLANDS
By virtue of the authority vested in me by the Constitution and stat-
utes of the United States of America, and as President of the United
States of America in furtherance of the National Environmental Policy
Act of 1969, as amended (42 U.S C. 4321 et seq.), in order to avoid to
the extent possible the long and short term adverse impacts associated
with the destruction or modification of wetlands and to avoid direct or
Indirect support of new construction In wetlands wherever there is a
pracUcable alternative, it is hereby ordered as follows
SectIon 1. (a) Each agency shall provide leadership and shall take
action to minimize the destruction, loss or degradation of wetlands, and
to preserve and enhance the natural and beneficial values of wetlands
In carrying out the agency’s responsibilities for (1) acquiring, manag-
ing, and disposing of Federal lands and facilities; and (2) providing
Federally undertaken financed, or assisted Construction and improve-
ments, and (3) conducting Federal activities and programs affecting
land use, including but not limited to water and related land resources
Planning, regulating, and licensing activities
(b) This Order does not apply to the issuance by Federal agencies of
permits, licenses, or allocations to private parties for activities involving
wetlands on non-Federal property. -
Sec. 2. (a) In furtherance of Section 101(b) (3) of the National
Environmental Policy Act of 1969 (42 U S.C 4331(b)(3)) to Improve
and coordinate Federal plans, functions, programs and resources to the
end that the Nation may attain the widest range of beneficial uses of
the environment Without degradation and risk to health or safety, each
agency, to the extent permitted by law, shall avoid undertaking or pro-
siding assistance for new construction located in wetlands unless the
head of the agency finds (1) that there is no practicable alternative
to iuch construction, and (2) that the proposed actIon includes all prac.
ticable measures to minimize harm to wetlands which may result from
such use. In making this finding the head of the agency may take Into
account economic, environmental and other pertinent factors.
(b) Each agency shall also provide opportunity for early public re-
view of any plans or proposals for new construction in wetlands, In ac-
cordance with Section 2(b) of Executive Order No 11514.31 as amended.
including the development of procedures to accomplish this objective for
Federal actions whose Impact Is not significant enough to require the
preparation of an environmental impact statement under SectIon 102(2)
(C) of the National Environmental Policy Act of 1969, as amended.
31. 42 U.S.C.A. 4321 note.
4667

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2.
EXECUTIVE ORDERS
Sec. 3. Any requests for new authorizations or appropriations trans-
mitted to the Office of Management and Budget shall indicate, if an ac-
tion to be proposed ill be located in etiands, hether the proposed ac-
tion Is in accord with this Order
Sec. 4. When Federally-owned wetlands or portions of wetlands are
proposed for lease, easement. right-of-was or disposal to non-Federal
public or private parties, the Federal agency shall (a) reference in the
conveyance those uses that are restricted under identified Federal, State
or local wetlands regulations, and (h) attach other appropriate restric-
tions to the uses of properties by the grantee or purchaser and any suc-
cessor. except where prohibited by law, or (c) withhold such proper-
ties from disposal
Sec. . In carrying out the activities described in Section 1 of this
Order, each agency shall consider factors relevant to a proposal’s effect
on the survival and quality of the wetlands Among these factors are
(a) public health, safety, and welfare, including water supply, quality,
recharge and discharge; pollution, flood and storm hazards, and sedi-
ment and erosion,
(b) maintenance of natural systems, including conservation and long
term productivity of existing flora and fauna, species and habitat di-
versity and stability, hydrologic utility, fish, wildlife, timber, and food
and fiber resources; and
(c) other uses of wetlands in the public interest, including recreation-
al, scientific, and cultural uses.
Sec. 6. As allowed by law, agencies shall issue or amend their ex-
isting procedures in order to comply with this Order To the extent
possible, existing processes, such as those of the Council on Environ-
mental Quality and the Water Resources Council, shall be utilized to
fulfill the requirements of this Order.
Sec. 7. As used in this Order.
(a) The term “agency” shall have the same meaning as the term
“Executive agency” in Section 105 of Title 5 of the United States Code
and shall include the military departments, the directives contained In
this Order, however, are meant to apply only to those agencies which
perform the activities described in Section 1 which are located in or
affecting wetlands
(b) The term “new construction” shall include draining, dredging,
channellztng, filling, diking, impounding, .nd related activities and any
structures or facilities begun or authorized after the effective date of
this Order
(c) The term “wetlands” means those areas that are Inundated by
surface or ground water with a frequency sufficient to support and un-
der normal circumstances does or would support a prevalence of vegeta-
tive or aquatic life that requires saturated or seasonally saturated soil
conditions fpr growth and reproduction Wetlands generally include
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet
meadows, river overflows, mud flats, and natural ponds
Sec. S. Thib Order does not apply to projects presently under con-
struction, or to projects for which all of the funds have been appropri-
ated through Fiscal Year 1977, or to projects and programs for which
a draft or final environmental impact statement will be filed prior to
October 1, 1977. The provisions of Section 2 of this Order shall be
implemented by each agency not later than October 1, 1977.
Sec. 9. Nothing in this Order shall apply to assistance provided for
emergency work, essential to save lives and protect property and public
health and safety, performed pursuant to Sections 305 and 306 of the
Disaster Relief Aot of 1974 (88 Stat. 148, 42 U.S.C. 5145 and 5146).
Sec. 10. To the extent the provisions of Sections 2 and 5 of this
Order are applicable to projects covered by Section 104(h) of the Hous-
ing and Community Development Act of 1974, as amended (88 Stat.
4668

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83
EXECUTIVE ORDERS
640, 42 U S C 5304(h)). the responsibilities under those pro’ isions ma
be assumed by the appropriate applicant if the applicant has also as-
sumed. with respect to such projects all of the responsibilities for en-
vironmental review declsionmakiflg. and action pursuant to the National
Environmental Policy Act of 1969 as amended
JIMMY C.\RTFR
TIrE W’IIITE HOUSE.
1101 1 24. 1977
No. 11991
May 24, 1977, 42 F R 26967
RELATING TO PROTECTION AND ENHANCEMENT
OF ENVIRONMENTAL QUALITY
By virtue of the authority ested in me by the Constitution and stat-
utes of the United States of America. and as President of the United
States of America. in furtherance of the purpose and policy of the Na-
tional Environmental Policy Act of 1969. as amended (42 U S.C. 4321
et seq ), the Environmental QualU> Impro ement Act of 1970 (42 U.S.C
4371 et seq ), and Section 309 of the Clean Air Act, as amended (42
U S.C. 1857h—7), it is hereby ordered as follows.
Section 1. Subsection (h) of Section 3 (relating to responsibilities
of the Council on Environmental Quality) of Executive Order No. 11514,32
as amended, is revised to read as follows
“(h) Issue regulations to Federal agencies for the implementation
of the procedural provisions of the Act (42 U.S C 4332(2)) Such
regulations shall be developed after consultation with affected agencies
and after such public hearings as may be appropriate They will be
designed to make the environmental impact statement process more use-
ful to decisionmakers and the public, and to reduce paperwork and the
accumulation of extraneous background data, in order to emphasize the
need to focus on real environmental issues and alternatives They will
require impact statements to be concise, clear, and to the point, and
supported by evidence that agencies ha e made the necessary environ-
mental analyses The Council shall include in its regulations procedures
(1) for the early preparation of en ironmental impact statements, and
(2) for the referral to the Council of conflicts between agencies con-
cerning the implementation of the ationai Environmental Policy Act
of 1969, as amended, and Section 309 of the Clean Air Act, as amended.
for the Council’s recommendation as to their prompt resolution.”
Sec. 2 The following new subsection is added to Section 2 (relating
to responsibilities of Federal agencies) of Executive Order No. 11514,
as amended’
“(g) In carrying out their responsibilities under the Act and this
Order, comply with the regulations issued by the Council except where
such compliance would be inconsistent ith statutory requirements
J i iw CARTER
THE WHITE HOUSE,
May 24, 1977.
32. 42 U S.C.A 4321 note.
4669

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II. WETLAND PROTECTION MEMORANDA OF AGREEMENT

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II-!
“Modification to the January 19, 1989, Department of the
ArmyfEnvironmental Protection Agency Memorandum of
Agreement Concerning Federal Enforcement for the Section
404 Program of the Clean Water Act” 2/15/94
“Memorandum of Agreement Between the Department of the Army
and the Environmental Protection Agency Concerning
Federal Enforcement for the Section 404 Program of the
Clean Water Act” 1/19/89

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Umted Slates Environmental Protecuon Agency
Office of Water
Washington, D.C. 20460
United States Department of the Army
Office of the Assistant Secretary
Civil Works
Wa.shington, D.C. 20310-0108
MODIFICATION TO THE JANUARY 19, 1989,
DEPARTMENT OF THE ARMYIENVIRONMENTAL PROTECTION AGENCY
MEMORM DUM OF AGREEMENT CONCERNING FEDERAL ENFORCEMENT
FOR THE SECTION 404 PROGRAM OF THE CLEAN WATER ACT
In order to assure continued consistency and predictability, Paragraph V.D of the
January 19, 1989, Department of the Army/Environmental Protection Agency
Memorandum of Agreement concerning Federal enforcement for the Section 404 program
of the Clean Water Act, is modified to read as follows (deletions are lined-out):
“D. This agreement shall take effect 60 days after the date of the last
signature below and will continue in effect for fivc ycars , unless cxtcndcd ,
modified or revoked by agreement of both parties, or revoked by either
party alone upon six months written notice’ prior —to that timcr ”
0. Edward Dickey - ___
Acting Assistant Secretary of the Army
(Civil Works)
1.5 FEB 199
Robert Perciasepe
Assistant Administrator for Water
Environmental Protection Agency
Date
Date

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I. Purpose and Scope
The United States Department of the Army (Army) and the
United States Environmental Protection Agency (EPA) hereby
establish policy and procedures pursuant to which they will under-
take federal enforcement of the dredged and fill material permit
requirements (“Section 404 program”) of the Clean Water Act
(CWA). The U S. Army Corps of En neers (Corps) and EPA have
enforcement authorities for the Section 404 program, a.s specified
in Sections 301(a), 308, 309, 404(n), and 404(s) of the CWA. In
addition, the 1987 Amendments to the CWA (the Water Quality
Act of 1987) provide new administrative penalty authonty under
Section 309(g) for violations of the Section 404 program. For pur-
poses of effective administration of these statutory authorities, this
Memorandum of Agreement (MOA) sets forth an appropriate allo-
cation of enforcement responsibilities between EPA and the Corps.
The prune goal of the MOA is to strengthen the Section 404 en-
forcement program by using the expertise, resources and initiative
of both agencies in a manner which is effective and efficient in
achieving the goals of the CWA.
II. Policy
A. General. It shall be the policy of the Army and EPA to main-
tain the integrity of the program through federal enforcement of
Section 404 requirements. The basic prenuse of this effort is to estab-
lish a framewotk for effective Section 404 enforcement with very
little overlap. EPA will conduct initial on-site investigations when
it is efficient with respect to available time, resources and/or ex-
penditures, and use its authorities as provided in this agreement.
In the majority of enforcement cases the Corps, because it has more
field resources, will conduct initial investigation and use its
authorities as provided in this agreement This will allow each agency
to play a role in enforcement which concentrates its resources in
those areas for which its authonties and expertise are best suited.
The Corps and EPA are encouraged to consult with each other on
cases involving novel or important legal issues and/or technical situa-
tions. Msistance from the U S. Fish and Wildlife Service (FWS),
the National Marine Fisheries Service (NMFS) and other federal,
state, tribal and local agencies will be sought and accepted when
appropriate
B Geographic Jurisdictional Determinatzon,s. Geographic
jurisdictional determinations for a specific case will be made by the
investigating agency If asked for an oral decision, the investigator
will caution that oral statements regarding jurisdiction are not an
official agency determination. Each agency will advise the other of
any problem trends that they become aware of through case by case
determinations and initiate interagency discussion or other action
to address the issue (Note: Geographic jurisdictional determina-
tions for “special case” situations and interpretation of Section
404(f) exemptions for “special Section 404(f) matters” will be
handled in accordance with the Memorandum of Agreement Be-
tween the Department of the Army and the Environmental Protec-
tion Agency Concerning the Determination of the Geographic
Jurisdiction of the Section 404 Program and the Application of the
Exemptions Under Section 404(f) of the Clean Water Act.)
C. Violation Determinations. The investigating agency shall
be responsible for violation determinations, for example, the need
for a permit. Each agency will advise the other of any problem trends
that they become aware of through case by case determinations and
initiate interagency discussions or other action to address the issue.
D Lead Enforcement Agency. The Corps will act as the lead
enforcement agency for all violations of Corps-issued permits. The
Corps will also act as the lead enforcement agency for unpermitted
discharge violations which do not meet the criteria for forwarding
to EPA, as listed in Section III.D. of this MOA. EPA will act as
the lead enforcement agency on all unpermitted discharge violations
which meet those cnteria. The lead enforcement agency will com-
plete the enforcement action once an investigation has established
that a violation exists. A lead enforcement agency decision with
regard to any issue in a particular case, including a decision that
no enforcement action be taken, is final for that case. This provi-
sion does not preclude the lead enforcement agency from referring
the matter to the other agency under Sections Ill D 2 and III D 4
of this MOA.
E. Environmental Protection Measurer It is the pohc of both
agencies to avoid permanent environmental harm caused by the
violator’s activities by requiring remedial actions or ordering removal
and restoration. In those cases where a complete remedy/removal
is not appropriate, the violator may be required, in addition to other
legal remedies which are appropriate (e.g., payment of adrrums-
trauve penalties) to provide compensatory mitigation to compen-
sate for the harm caused by such illegal actions. Such compensatory
mitigation activities shall be placed as an enforceable requirement
upon a violator as authorized by law.
D l. Procedures
A. Flow chart. The attached flow chart provides an outline
of the procedures EPA and the Corps will follow in enforcement
cases involving unpermitted discharges. The procedures in (B.), (C.),
(D.), (E.)and (F.) below are in a sequence in which they could oc-
cur. However, these procedures may be combined in an effort to
expedite the enforcement process.
B. Investigat ion. EPA, it it so requests and upon prior notifica-
tion to the Corps, will be the investigation agency for unpermitted
activities occurring in specially defined geographic areas (e.g., a par-
ticuJar wetland type, areas declared a “special case” within the
meaning of the Memorandum of Agreement Between the Depart-
ment of the Army and the Environmental Protection Agency Con-
cerning the Determination of the Geographic Jurisdiction of the
Section 404 Program and the Application of the Exemptions Under
Section 404 ( 1) of the Clean Water Act). Timing of investigations
will be commensurate with agency resources and potential environ-
mental damage. To reduce the potential for duplicative federal ef-
fort, each agency should verify prior to initiating an investigation
that the other agency does not intend or has not already begun an
investigation of the same reported violation. If a violation exists,
a field investigation report will be prepared which at a minimum
provides a detailed description of the illegal activity, the existing
environmental setting, initial view on potential impacts and a recoin-
mendation on the need for initial corrective measures Both agen-
cies agree that investigations must be conducted in a professional,
legal manner that will not prejudice future enforcement action on
the case. Investigation reports will be provided to the agency selected
‘as the lead on the case.
C. Immediate Enforcement Action. The investigating or lead
enforcement agency should inform the responsible parties of the
violation and inform them that all illegal activity should cease pend-
ing further federal action. A notification letter or administrative
order to that effect will be sent in the most expeditious manner.
If time allows, an order for initial corrective measures may be in-
cluded with the notification letter or administrative order. Also,
if time allows, input from other federal, state, tribal and local agen-
cies will be considered when determining the heed for such initial
corrective measures. In all cases the Corps will provide EPA a copy
of its violation letters and EPA will provide the Corps copies of
its §308 letters and/or §309 administrative orders. These communica-
tions will include language requesting the other agency’s views and
recommendations on the case. The violator will also be notified that
the other agency has been contacted.
D. Lead Enforcement Agency Selection. Using the following
criteria, the investigating agency will determine which agency will
complete action on the enforcement case:
1. EPA will act as the lead enforcement agency when an
unpermitted activity involves the following:
a. Repeat Violator(s),
b. Flagrant Violation(s);
c. Where EPA requests a class of cases or a particular
case; or
d. The Corps recommends that an EPA administrative
penalty action may be warranted.
Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning Federal Enforcement for
the Section 404 Program of the Clean Water Act
(Department of the Army/Environmental Protection Agency Jan 19, 1989)

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19 ELR 35184
E V1RO tE TAL LAW REPORTER
2 The Corps will act as the lead enforcement agency in
all other unpermitted cases not identified in Part III D 1
above. Where EPA notifies the Corps that, because of limited’
staff resources or other reasons, it will not take action on
a specific case, the Corps may take action commensurate with
resource availability. /
3 The Corps will act as the lead enforcement agency for
Corps-issued permit condition violations.
4. Where EPA requests the Corps to take action on a per-
mit condition violation, this MOA establishes a “right of
first refusal” for the Corps. Where the Corps notifies EPA
that, because of limited staff resources or other reasons, it
will not take an action on a permit condition violation case,
the EPA may take action commensurate with resource avail-
ability. However, a determination by the Corps that the ac-
tivity is in compliance with the permit will represent a final
enforcement decision for that case.
E. Enforcement Response. The lead enforcement agency shall
determine, based on its authority, the appropriate enforcement
response taking into consideration any views provided by the other
agency. An appropriate enforcement response may include an ad-
rmnistranve order, administrative penalty complaint, a civil or
criminal judicial referral or other appropriate formal enforcement
response.
F. Resolution. The lead enforcement agency shall make a final
determination that a violation is resolved and notify interested parties
so that concurrent enforcement files within another agency can be
closed. In addition, the lead enforcement agency shall make as-
,rangements for proper monitoring when required for any remedy!
rem , compensatory mitigation or other corrective measures.
G. ter-the-Fact Permits. No after-the-fact (ATF) permit ap-
pli shall be accepted until resolution has been reached through
an appropriate enforcement response as determined by the lead en-
forcement agency (e g., until all administrative, legal andlor cor-
rective action has been completed, or a decision has been made that
rio enforcement action is to be taken).
iV. Related Matters
A. Interagency Agreements. The Army and EPA are en-
couraged to enter into interagency agreements with other federal,
state, tribal and local agencies which will provide assistance to the
Corps and EPA in pursuit of Section 404 enforcement activities.
For example, the preliminary enforcement site invesnganons or post-
case monitoring activities required to ensure compliance with any
enforcement order can be delegated to third parties (e.g., FWS) who
agree to assist Corps/EPA in compliance efforts. However, only
the Corps or EPA may make a violation deterrnrnanon and/or pur-
sue an appropriate enforcement response based upon information
received from a third party.
B Corps/EPA Field Agreements. Corps Division or District
offices and their respective EPA Regional offices are encouraged
to enter into field level agreements to more specifically implement
the provisions of this MOA.
C. Data Information Exchange. Data which would enhance
either agency’s enforcement efforts should be exchanged between
the Corps and EPA where available. At a minimum, each agency
shall begin to develop a computerized data list of persons receiving
ATF permits or that have been subject to a Section 404 enforce-
ment action subsequent to February 4, 1987 (enactment date of the
1987 Clean Water Act Amendments) in order to provide historical
compliance data on persons found to have illegally discharged. Such
information will help in an adminictrative penalty action to evaluate
the statutory factor concerning history of a violator and will help
to determine whether pursuit of a criminal action is appropriate.
in this MOA may be delegated to subordinates consiste’it with
established agency procedures.
B The policy and procedures contained within this MOA do
not create any rights, either substantive or procedural, enforceable
by any party regarding an enforcement action brought by either
agency or by the U S. Deviation or variance from these MOA pro-
cedures will not constitute a defense for violators or others con-
cerned with any Section 404 enforcement action.
C. Nothing in this document is intended to diminish, modify
or otherwise affect the statutory or regulatory authorities of either
agency. All formal guidance interpreting this MOA shall be issued
jointly.
D This agreement shall take effect 60 days after the date of
the last signature below and will continue in effect for five years
unless extended, modified or revoked by agreement of both par-
ties, or revoked by either party alone upon six months written notice,
prior to that time.
CORPSIE PA F.NFORCFJ4EXT PRrXE.DURES
FOR SECJ7ON 4 U? ,fPWIRTED flOL.4T70N 5
r REPOR ’rEO TO OR
OETECTED BY T)41 CORPS OR IPA
110 COPS PVOLVUZ
—IA. A WATER OF TM! U.S. AND
9. A SECTiON 404 DISCMAPG! AND
c. All UWPERXI fED AC IV1T’t AND
D. AM ACTIViTY NOT EXERPT!D
BY SECTION 404(f)
YES
ACTIVITY RZQUIRZS:
A. I UDIATE ACTION OR
B. INITIAL
1.110 P0 CT ISLECTIOPe ”
IACTI TITY INVOLVES ONE OF TM! FOLLOWING.
Yea IA R !PEAT VIOLATOR
r—IB. FLAGRAII! VIOLATOR(L.e., ebvtoua prior
b%owl.dq.)
C. SPA RRQCZST TI CASE OR
0. cORPS R !COl0 (nlDS A II$ISTRATIV!
lIII
SPA FOLLOWS CWA
UC ’flOW 309 PROCZOIXRZS
a £nforc...nt procedures for p.rait condition violation cases
are est forth at Part 111.0.3. and 111.0.4.
a. Proc.dures for investigating unp.raitted activity casea are
sat forth at Part 111.9.
‘a’ Exa2ples of situations in which ‘C ‘0’ eight arise
include cases which are isportant due to deterrent value.
du. to the violation occurring in a critical priority
r.source or in an advanced identification area, involving
an uncooperative individual, etc.
Robert W. Page
Assistant Secretary of the Army (Civil Works)
January 19, 1989
Rebecca W. Hanmer
Acting Assistant Administrator for Water
U.S. Environmental Protection Agency
YES
NO
CORPS FOLLOWS
33 CFR 326 PROCEDURES
V. Generli
A. The procedures and responsibilities of each agency specified
January 19, 1989

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United States Environmental Protection Agency
Office of Water
Washington, D.C. 20460
United States Department of the Army
Office of the Assistant Sea etary
Washington, D.C. 20310-0103
3 MAY
MEMORANDUM FOR THE FIELD
SUBJECF: Clean Water Act Section 404 Regulatory Program and Agricultural
Activities
A number of questions have recently been raised about the applicability of the
Clean Water Act Section 404 Regulatory Program 1 to agriculture. This memorandum is
intended to assist Section 404 field personnel in responding to those questions and to
assure that the program is implemented in a consistent manner. At the outset, we
should emphasize that we respect and support the underlying purposes of the Clean
Water Act regarding the exemption from Section 404 permitting requirements for
“normal farming” activities. The exemptions (at Section 404(f) of he Act)
recognize that American agriculture fulfills the vitally important public need for
supplying abundant and affordable food and fiber and it is our intent to assure that the
exemptions are appropriately implemented.
What are normal farming activities? Who makes that determinatic
agricultural producers plant crops in wetlands areas that have been farmed to.
years? These are questions that have generated significant confusion and concern in
the agricultural community. This memorandum will explain the extent of the Section
404 program and clarify some misunderstandings that may exist in the field. Therefore
we encourage you to widely distribute this memorandum.
What is Section 404?
The Federa] Water Pollution Control Act Arn’ndments of 1972 established the
Section 404 Regulatory Program. Under this Act, it is unlawful to discharge dredged or
fill material into waters of the United States without first receiving authorization
(usually a permit) from the Corps, unless the discharge i uwered under an exemption.
The term “waters of the United States” defines the extent of geographic jurisdiction &
the Section 404 program. The term includes such waters as rivers, lakes, streams, tidal
aters, and most wetlands. A discharge of dredged or fill materi
placement of soil, sand, gravel, dredged material or other such rn

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of the United States. Section 404(f) exemptions, which were added in 1977, provide
that discharges that are part of normal farming, ranching, and forestry activities
associated with an active and continuous (“ongoing”) farming or forestry operation
generally do not require a Section 404 permit.
With this background in mind, we can now turn to the issues that are the focus
of concern. As previously noted, Section 404(f) exempts discharges of dredged or fiji
material into waters of the United States associated with certain normal agricultural
activities. Of course, activities that do not involve a discharge of dredged or fill
material into waters of the United States never require a Section 404 permit. Further,
as provided in the Interagency Federal Manual for Identifying and Delineating
Jurisdictional Wetlands , while a site is effectively and legally drained to the extent that
it no longer meets the regulatory wetlands hydrology criteria (as interpreted by the
Interagency Manual), it is not a wetland subject to jurisdiction under Section 404 of the
Clean Water Act.
What is the “normal farming” activities exemption’
The Clean Water Act exempts from the Section 404 program discharges
associated with normal farming, ranching and forestry activities such as plowing,
cultivating, minor drainage, and harvesting for the production of fgod, fiber, and forest
products, or upland soil and water conservation practices (Section 404(f)(1)(A)). To be
exegipt, these activities must be part of an established, ongoing operation. For
example, if a farmer has been plowing, planting and harvesting in wetlands, he can
continue to do so without the need for a Section 404 permit, so long as he does not
convert the weliands to dry land. Activities which convert a wetland which has not
been used for farming or forestry into such uses are not considered part of an
established operation, and are not exempt. For example, the conversion of a
bottomland hardwood wetland to crop production is not exempt.
In determining whether an activity is part of an established operation, several
points need to be considered. First, the specific farming activity need not itself have
been ongoing as long as it is introduced as part of an ongoing farming operation. For
example, if crops have been grown and harvested on a regular basis, the mere addition
or change of a cultivation technique (e.g., discing between crop rows to control weeds
rather than using herbicides) is considered to be part of the established farming
operation. Second, the planting of different agricultural crops as part of an established
rotation (e.g., soybeans to rice) is exempt. Similarly, the rotation of rice and crawfish
production is also exempt (construction of fish ponds is not an exempt activity and is
addressed on page 5 of this memorandum). Third, the resumption of agricultural
production in areas laying fallow as part of a normal rotational cycle are considered to
be part of an established operation and would be exempted under Section 404(f).
2

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However, if a wetland area has not been used for farming for so long that it would
require hydrological modifications (modifications to the Surface or groundwater flow)
that would result In a discharge of dredged or fill material, the farming operation would
no longer be established or ongoing.
As explained earlier, normal farming operations include cultivating, harvesting,
minor drainage, plowing, and seeding. While these terms all have common, everyday
definitions, it is important to recognize that these terms have specific, regulatory
meanings in relation to the Section 404(f) exemptions. For example, plowing that is
exempt under Section 404(f) means all mechanical means of manipulating soil, including
land levelling, to prepare it for the planting of crops. However, grading activities that
would change any area of waters of the United States, including wetlands, into dry land
are not exempt. Minor drainage that is exempt under Section 404(f) is limited to
discharges associated with the continuation of established wetland crop production (e.g.,
building rice levees) or the connection of upland crop drainage facilities to waters of
the United States. In addition, minor drainage also refers to the emergency removal of
blockages that close or constrict existing drainageways used as part of an established
crop production. Minor drainage is defined such that it does not include discharges
associated with the construction of ditches which 4rain or significantly modify any
wetlands or aquatic areas considered as waters of the United States. Seeding that is
exempt under Section 404(f) includes not only the placement of seeds themselves, but
also the placement Qf soil beds for seeds or seedlings on established farm or forest
lands. Cultivating uñ ier Section 404(f) includes physical methodspf soil treatment to
aid and improve the growth, quality, or yield of established crops. Except as provided
under Section 404(f)(2) as explained below, construction or maintenance of irrigation
ditches or maintenance of drainage ditches is also exempt.
Recognizing area and regional differences in normal farming practices, EPA and
the Corps agree to develop additional definitions of normal farming practices in
consultation with the designated Land Grant Colleges and the Cooperative Extension
Services. We also further encourage our field staffs to utilize the expertise in these
colleges and agricultural services in the ongoing implementation of the Section 404
program.
When the normal farming activity exemptions do not apply
Section 404(0(2) provides that discharges related to activities that change the use
of the waters of the United States, including wetlands, and reduce the reach, or impair
the flow or circulation of waters of the United States are not exempted. This
“recapture” provision involves a two-pan test that results in an activity being considered
exempt when both parts are met: 1) does the activity represent a “new use” of the
wetland and, 2) would the activity result in a “reduction in reacMmpairment of flow or
3

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circulation” of waters of the United States? Consequently, any discharge of dredged or
fill material that results in the destruction of the wetlands character of an area (e.g., its
conversion to uplands due to new or expanded drainage) is considered a change in use
of the waters of the United States, and by definition, a reduction of their reach, and is
not exempt under Section 404(f). In addition, Section 404( f )(1) of the Act provides
that discharges that contain toxic pollutants listed under Section 307 are not exempted
and must be permitted.
However, discharges that are not exempt are necessarily prohibited. Non-
exempted discharges must first be authorized either through a general or individual
Section 404 permit before they are initiated.
What are General Permits?
Even if a farming activity is one that does not fall under an exemption and a
permit is required, some farming activities are eligible for General Permits. Section
404(e) of the Act authorizes the Corps, after notice and opportunity for public hearing,
to issue General Permits on a State, regional or nationwide basis for certain categories
of activities involving a discharge of dredged or fill material in waters of the United
States. Such activities must be similar in nature and cause only minimal adverse
environmental eftects. Discharges authorized under a General Permit may proceed
without applying to the Corps for an individual permit. Howevd, in some
circumstances, conditions associated with a General Permit may require that persons
wi5hing 9 to discharge under that permit must notify the Corps or other designated State
or local agency before the discharge takes place . A list of current General Permits is
available from each Corps District Office, as well as information regarding notification
requirementsor other relevant conditions.
Rice farming
Questions have arisen regarding the relationship of the Section 404 program to
rice farming. We understand these concerns, and recently have initiated actions that
will allow farmers to understand better the regulatoiy program and provide more
efficient and equitable mechanisms for implementing provisions of the Section 404
program.
In an April 19, 1990 letter responding to a request from Senator Patrick J.
Leahy, Chairman, and 11 members of the Senate Committee on Agriculture, Nutrition,
and Forestry, we stated our position that discharges of dredged material associated with
the construction of rice levees for rice farming in wetlands which are in established
agricultural crop production are “normal farming activities” within the meaning of
4

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Section 404(f)(1)(A) and are therefore exempt from Section 404 regulation under the
following conditions:
1) the purpose of these levees is limited to the maintenance and manipulation of
shallow water levels for the production of rice crops; and -
2) consistent with current agricultural practices associated with rice cultivation,
- the heigjit of the rice levees should genera Ijy not exceed 24 inches above
thài base; and
- the material to be discharged for levee construction should generally be
derived exclusively from the distribution of soil immediately adjacent to
the constructed levee.
Land levelling for rice farming in wetlands which are in established crop
production also is a “normal farming activity” within the meaning of Section
404(f)(1)(A) and is therefore exempt from Sectior! 404 regulation.
Fish ponds
We are developing a General Permit authorizing dischargd of dredged or fill
material associated with the construction of levees and ditches for the construction of
fish ppnds ‘in wetlands that were in agricultural crop production prior to December 23,
1985. A draft Genera! Permit has been developed by the Vicksburg District, Army
Corps of Engineers and should be issued by June 1, 1990. This General Permit should
serve as a model permit for other areas of the country and this activity will be
considered for a nationwide General Permit.
It should be made clear, however, that the Section 404(f) exemption for “normal
farming activities’ t and the Oeii ral Permit being developed for fish ponds apply only to
the use of wetlands which arc already in use for agricultural crop production. These
provisions do not apply to I) wetlands that were once in use for agricultural crop
production but have Lain idle so long that modifications to the hydrologic regime are
necessary to resume crop production or, 2) the conversion of naturally vegetated
wetlands to agriculture, such as the conversion of bottomland hardwood wetlands to
agriculture.
limitations of the Section 404(f) Exemptions
It should be emphasized that the use of Section 404(1) exemptions does not
iffect Section 404 jurisdiction. For example, the fact that an activity in wetlands is
5

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exempted as normal farming practices does not authorize the filling of the wetland for
the construction of buildings without a Section 404 permit. Similarly, a Section 404
permit would be required for the discharge of dredged or fill material associated with
draining a wetland area and converting it to dry land.
Enforcement
Given that the normal farming practices as described above are exempt from
regulation under Section 404, neither EPA nor the Corps will initiate enforcement
actions against farmers or other persons for engaging in such normal farming activities.
Further, there will be no enforcement against actions that meet the description of
activities covered by, and any conditions contained in, general permits issued by the
Corps.
Conclusion
Proper implementation of the Section 40 program is an issue of extreme
importance to the nation. We encourage you to distribute this memorandum not only
to your staffs but to the public at large so that there will be a better general
understanding of the program and how it operates. If you have y questions regarding
this memorandum, please contact us or have your staff contact Suzanne Schwartz in
EPA’s Office of Wetlands Protection at 202-475-7799, or John Studt in the
Headquarters’ Office of the U.S. Army Corps of Engineers at 202-272-1785 (temporary
number 202-272-1294).
LaJua S. Wilcher Robert W. Page
Assista t Administrator for Water Assistant Secretary of the Army
U.S. Environmental Protection Agency (Civil Works)
6

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11-2
“Memorandum of Agreement Between the Environmental
Protection Agency and the Department of the Army
Concerning the Determination of Mitigation Under the
Clean Water Act Section 404(b)(1) Guidelines” 2/6/90
Section 404(b)(1) Guidelines Mitigation MOA:
“Questions and Answers”

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MEMORANDUM OF AGREEM NT
BETWEEN THE ENVIRONMENTAL PROTECTION AGENCY j
AND THE DEPARTMENT OF THE ARMY CONCERN ING
ThE DEURMINATION OF MmGATI0N UNDER ThE
CLEAN WATER ACT SECTION 404(b)(1) GUIDELINES
LPurpase
The United States Environmental Protection Agency (EPA) and the United States
Department of the Army (Army) hereby articulate the policy and procedures to he used
in the determination of the type and level of mitigation necessary to demonstrate
compliance with the Clean Water Act (CWA) Section 404(b)(1) Guidelines (“Guidelines”).
This Memorandum of Agreement (MOA) expresses the explicit intent of the Army and
EPA to implement the objective of the CWA to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters, including wetlands. This MOA is
specifically limited to the Section 404 Regulatory Program and is written to provide
guidance for agency field personnel on the type and level of mitigation which demonstrates
compliance with requirements in the Guidelines. The policies and procedures discussed
herein are consistent with current Section 404 regulatory practices and are provided in
response to questions that have been raised about how the Guidelines are implemented.
The MOA does not change the substantive requirements of the Guidelines. It is intended
to provide guidance regarding the exercise of discretion under the Guidelines.
Although the Guidelines are clearly applicable to all discharges of dredged or fill
material, including general permits and Corps of Engineers (Corps) civil works projects,
this MOA focuses on standard permits (33 CFR 325.5(b)(1))’. This focus is intended
solely to reflect the unique precedural aspects associated with the review of standard
permits, and does not obviate the need for other regulated activities to comply fully with
the Guidelines. EPA and Army will seek to develop supplemental guidance for other
regulated activities consistent with the policies and principles established in this document.
This MOA provides guidance to Corps and EPA personnel for implementing the
Guidelines and must be adhered to when considering mitigation requirements for standard
permit applications. The Corps will use this MOA when making its determination of
compliance with the Guidelines with respect to mitigation for standard permit applications.
EPA will use this MOA in developing its positions on compliance with the Guidelines for
‘Standard permits are those individual permits which have been processed through
application of the Corps public interest review procedures (33 CFR 325) and EPA’s
Section 404(h)(1) Guidelines, including public notice and receipt of comments. Standard
permits do not include letters of permission, regional permits, nationwide permits, or
programmatic permits.

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An,,yi7 PA MOA c of Mu2 ie ioid i e S rt 404(b)(!) G d P e 2
proposed discharges and will reflect this MOA when commenting on standard permit
applications.
IL Policy
A. The Council on Environmental Quality (CEQ) has defined mitigation in its
regulations at 40 CFR 1508.20 to include: avoiding impacts, minimizing impacts, rectifying
impacts, reducing impacts over time, and compensating for impacts. The Guidelines
establish environmental criteria which must be met for activities to be permitted under
Section 404.2 The types of mitigation enumerated by CEQ are compatible with the
requirements of the Guidelines; however, as a practical matter, they can be combined to
form three general types: avoidance, minimization and compensatory mitigation. The
remainder of this MOA will speak in terms of these more general types of mitigation.
B. The Clean Water Act and the Guidelines set forth a goal of restoring and
maintaining existing aquatic resources. The Corps will strive to avoid adverse impacts and
offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will
strive to achieve a goal of no overall net loss of values and functions. In focusing the goal
of no overall net loss to wetlands only, EPA and Army have explicitly recognized the
special significance of the nation’s wetlands resources. This special recognition of wetlands
resources does not in any manner diminish the value of other waters of the United States,
which are often of high value. All waters of the United States, such as streams, rivers,
lakes, etc., will be accorded the full measure of protection under the Guidelines, including
the requirements for appropriate and practicable mitigation. The determination of what
level of mitigation constitutes “appropriate” mitigation is based solely on the values and
functions of the aquatic resource that will be impacted. “Practicable” is defined at Section
230.3(q) of the Guidelines. 3 However, the level of mitigation determined to be appropriate
and practicable under Section 230.10(d) may lead to individual permit decisions which do
not fully meet this goal because the mitigation measures necessary to meet this goal are
not feasible, not practicable, or would accomplish only inconsequential reductions in
impacts. Consequently, it is recognized that no net loss of wetlands functions and values
may not he achieved in each and every permit action. However, it remains a goal of the
Section 404 regulatory program to contribute to the national goal of no overall net loss of
the nation’s remaining wetlands base. EPA and Army are committed to working with
others through the Administration’s interagency task force and other avenues .to help
achieve this national goal.
2 (except where Section 404(b)(2) applies).
3 Section 230.3(q) of the Guidelines reads as follows: ‘The term practicable means
available and capable of being done after taking into consideration cost, exiciing iec/znoIo ’,
and logirrics in light of overall pmjecl purposes.” (Emphasis supplied)

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Ajr iF.PA MOA Ci ,w ‘ . 4 (b)(1) P J
C. In evaluating standard Section 404 permit applications, as a practical matter.
information on all facets of a project, including potential mitigation, is typically gathered
and reviewed at the same time. The Corps, except as indicated below, first makes a
determination that potential impacts have been avoided to the maximum extent practicable:
remaining unavoidable impacts will then he mitigated to the extent appropriate and
practicable by requiring steps to minimize impacts and, finally, compensate for aquatic
resource values. This sequence is considered satisfied where the proposed mitigation is in
accordance with specific provisions of a Corps and EPA approved comprehensive plan that
ensures compliance with the compensation requirements of the Section 404(h)(1)
Guidelines (examples of such comprehensive plans may include Special Area Management
Plans, Advance Identification areas (Section 230.80), and State Coastal Zone Management
Plans). It may he appropriate to deviate from the sequence when EPA and the Corps
agree the proposed discharge is necessary to avoid environmental harm (e.g., to protect
a natural aquatic community from saltwater intrusion, chemical contamination, or other
deleterious physical or chemical impacts), or EPA and the Corps agree that the proposed
discharge can reasonably he expected to result in environmental gain or insignificant
environmental losses.
In determining “appropriate and practicable” measures to offset unavoidable impacts.
such measures should be appropriate to the scope and degree of those impacts and
practicable in terms of cost, existing technology, and logistics in light of overall project
purposes. The Corps will give full consideration to the views of the resource agencies
when making this determination.
1. Avoidance. 4 Section 230.10(a) allows permit issuance for only the least
environmentally damaging practicable alternative. 5 The thrust of this section on
alternatives is avoidance of impacts. Section 230.10(a) requires that no discharge shall
he permitted if there is a practicable alternative to the proposed discharge which would
have less adverse impact to the aquatic ecosystem, SO long as the alternative does not have
other significant adverse environmental consequences. In addition, Section 230.10(a)(3)
sets forth rebuttable presumptions that 1) alternatives for non-water dependent activities
that do not involve special aquatic sites 6 are available and 2) alternatives that do not
involve special aquatic sites have less adverse impact on the aquatic environment.
4 Avoidance as used in the Section 404(b)(1) Guidelines and this MOA does not
include compensatory mitigation.
5 1t is important to recognize that there are circumstances where the impacts of the
project are so significant that even if alternatives are not available, the discharge may not
he permitted regardless of the compensatory mitigation proposed (40 CFR 230.10(c)).
6 Special aquatic sites include sanctuaries and refuges, wetlands, mud flats, vegetated
shallows, coral reefs and riftie pool complexes.

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A, iy/FJ’A MOA of Ma r wi uc S i 404(’b)( 1) Gr. dthia p
compensatory mitigation may not he used as a method to reduce environmental impacts
in the evaluation of the least environmentally damaging practicable alternatives for the
purposes of requirements under Section 230.10(a).
2. Minimization. Section 230.10(d) states that appropriate and practicable steps to
minimize the adverse impacts will he required through project modifications and permit
conditions. Subpart H of the Guidelines describes several (hut not all) means for
minirhizing impacts of an activity.
3. Compensatory Mitigation. Appropriate and practicable compensatory mitigation
is required for unavoidable adverse impacts which remain after all appropriate and
practicable minimization has been required. Compensatory actions (e.g., restoration of
existing degraded wetlands or creation of man-made wetlands) should be undertaken,
when practicable, in areas adjacent or contiguous to the discharge site (on-site
compensatory mitigation). If on-site compensatory mitigation is not practicable, off-site
compensatory mitigation should he undertaken in the same geographic area if practicable
(i.e., in close physical proximity and, to the extent possible, the same watershed). In
determining compensatory mitigation, the functional values lost by the resource to be
impacted must he considered. Generally, in-kind compensatory mitigation is preferable to
out-of-kind. There is continued uncertainty regarding the success of wetland creation or
other habitat development. Therefore, in determining the nature and extent of habitat
development of this type, careful consideration should he given to its likelihood of success.
Because the likelihood of success is greater and the impacts to potentially valuable uplands
are reduced, restoration should be the first option considered.
In the situation where the Corps is evaluating a project where a permit issued by
another agency requires compensatory mitigation, the Corps may consider that mitigation
as part of the overall application for purposes of public notice, hut avoidance and
minimization shall still he sought.
Mitigation banking may be an acceptable form of compensatory mitigation under
specific criteria designed to ensure an environmentally successful hank. Where a mitigation
bank has been approved by EPA and the Corps for purposes of providing compensatory
mitigation for specific identified projects, use of that mitigation bank for those particular
projects is considered as meeting the objectives of Section Il.C.3 of this MOA, regardless
of the practicability of other forms of compensatory mitigation. Additional guidance on
mitigation banking will be provided. Simple purchase or “preservation” of existing wetlands
resources may in only exceptional circumstances be accepted as compensatory mitigation.
EPA and Army will develop specific guidance for preservation in the context of
compensatory mitigation at a later date.

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*i iyi7 PA MO4 C ic .i’w, øf . die .c 404(b)(1) Gv id i p
III. Other F ocedu
A. Potential applicants for major projects should be encouraged to arrange
preapplication meetings with the Corps and appropriate federal, state or Indian tribal, and
local authorities to determine requirements and documentation required for proposed
permit evaluations. As a result of such meetings, the applicant often revises a proposal
to avoid or minimize adverse impacts after developing an understanding of the Guidelines
requirements by which a future Section 404 permit decision will be made, in addition to
gaining an understanding of other state or tribal, or local requirements. Compliance with
other statutes, requirements and reviews, such as NEPA and the Corps public interest
review, may not in and of themselves satisfy the requirements prescribed in the Guidelines.
B. In achieving the goals of the CWA, the Corps will strive to avoid adverse
impacts and offset unavoidable adverse impacts to existing aquatic resources. Measures
which can accomplish this can he identified only through resource assessments tailored to
the site performed by qualified professionals because ecological characteristics of each
aquatic site are unique. Functional values should be assessed by applying aquatic site
assessment techniques generally recognized by experts in the field and/or the best
professional judgment of federal and state agency representatives, provided such
assessments fully consider ecological functions included in the Guidelines. The objective
of mitigation for unavoidable impacts is to offset environmental losses. Additionally for
wetlands, such mitigation should provide, at a minimum, one for one functional
replacement (i.e., no net loss of values), with an adequate margin of safety to reflect the
expected degree of success associated with the mitigation plan, recognizing that this
minimum requirement may not be appropriate and practicable, and thus may not he
relevant in all cases, as discussed in Section lI.B of this MOA.’ In the absence of more
definitive information on the functions and values of specific wetlands sites, a minimum of
I to I acreage replacement may be used as a reasonable surrogate for no net loss of
functions and values. However, this ratio may he greater where the functional values of
the area being impacted are demonstrably high and the replacement wetlands are of lower
functional value or the likelihood of success of the mitigation project is low. Conversely.
the ratio may be less than I to 1 for areas where the functional values associated with the
7 For example, there are certain areas where, due to hydrological conditions, the
technology for restoration or creation of wetlands may not be available at present, or may
otherwise be impracticable. In addition, avoidance, minimization, and compensatory
mitigation may not be practicable where there is a high proportion of land which is
wetlands. EPA and Army, at present, are discussing with representatives of the oil
industry, the potential for a program of accelerated rehabilitation of abandoned oil facilities
on the North Slope to serve as a vehicle for satisfying necessary compensation
requirements.

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An’ /FJ’A MOA C a,w the cf M zi xi . ,t w,d the S 404(b)(1)
P 6
area being impacted are demonstrably low and the likelihood of success associated with
the mitigation proposal is high.
C. The Guidelines are the environmental standard for Section 404 permit issuance
under the CWA. Aspects of a proposed project may be affected through a determination
of requirements needed to comply with the Guidelines to achieve these CWA
environmental goals.
D. Monitoring is an important aspect of mitigation, especially in areas of scientific
uncertainty. Monitoring should be directed toward determining whether permit conditions
are complied with and whether the purpose intended to be served by the condition is
actually achieved. Any time it is determined that a permittee is in non-compliance with
mitigation requirements of the permit, the Corps will take action in accordance with 33
CFR Part 326. Monitoring should not be required for purposes other than these, although
information for other uses may accrue from the monitoring requirements. For projects to
be permitted involving mitigation with higher levels of scientific uncertainty, such as some
forms of compensatory mitigation, long term monitoring, reporting and potential remedial
action should be required. This can be required of the applicant through permit
conditions.
E. Mitigation requirements shall he conditions of standard Section 404 permits.
Army regulations authorize mitigation requirements to he added as special conditions to
an Army permit to satisfy legal requirements (e.g., conditions necessary to satisfy the
Guidelines) [ 33 CFR 325.4(a)]. This ensures legal enforceability of the mitigation
conditions and enhances the level of compliance. If the mitigation plan necessary to
ensure compliance with the Guidelines is not reasonably implementable or enforceable, the
permit shall be denied.
F. Nothing in this document is intended to diminish, modify or otherwise affect the
statutory or regulatory authorities of the agencies involved. Furthermore, formal policy
guidance on or interpretation of this document shall he issued jointly.
0. This MOA shall take effect on February 7, 1990, and will apply to those
completed standard permit applications which are received on or after that date. This
MOA may be modified or revoked by agreement of both parties, or revoked by either
party alone upon six (6) months written notice.
______________
Robert W. Page (date) Laiuana S. Wilcher (date)
Assistant Secretary of the Army Assistant Administrator for Water
(Civil Works) U.S. Environmental Protection Agency

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ULr’ t-\ 1,.’ ’ Lr —, 1
US A—C;’c E,”’c
vASHINC TON DC C3i4 yx
P ..V TO P
7 FE igg
CECW-OR
MEMORANDUM FOR SEE DISTRIBUTION
Subject: Section 404 Mitigation Memorandum of Agreement
1. On 15 November 1989, the Department of the Army and the
Environmental Protection Agency (EPA) signed a memorandum of
agreement (MOA) that clarifies the procedures to be used in
determining the type and level of mitigation necessary to
demonstrate compliance with the Clean Water Act Section 404(b) (1)
Guidelines. The MOA becomes effective on 7 February 1990 . A
copy of the MOA is enclosed. This represents the official
version and reflects the changes made to the 15 November 1989,
MOA previously provided to you.
2. The MOA represents several years of hard work by both EPA and
the Army Corps of Engineers. It, along with other recent
accomplishments such as the new Federal wetlands delineation
manual, are good examples of the renewed spirit of cooperation
between EPA and the Corps at the Headquarters level. I am
encouraged by these initiatives and committed to ensuring that
the Corps Regulatory Program is undertaken in a manner fully
consistent with the goals of the Clean Water Act and the Section
404 (b) (1) Guidelines. I expect no less from each FOA Commander,
Office of Counsel, and Regulatory staff.
3. The MOA is consistent with the President’s goal of no overall
net loss of wetlands and affirms the Corps existing policy of
striving to avoid adverse impacts and offset unavoidable adverse
impacts to aquatic resources. I fully support these initiatives
and will work to ensure that they are integrated into all Corps
activities. This includes site selection, plan development,
maintenance, and operation of Corps projects, as well as the
Reg-ulatory Program. It is important to emphasize, however, that
while the MOA’S implementation can contribute to a goal of no
overall net loss of the nation’s remaining wetland base, the MOA
does not establish a no net loss policy. In fact, the MOA
expressly recognizes that achieving no net loss of wetlands
values and functions is not possible for every permit action.
The President’s Domestic Policy Council Interagency Working Group
on Wetlands is currently developing policy on no overall net loss
of wetlands.
4. The MOA interprets and provides internal guidance and
procedures to the Corps and EPA field personnel for implementing
existing Section 404 permit regulations. The MOA does not change
substantive regulatory requirements but instead provides a

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CE CW - OR
SUBJECT: Section 404 Mitigation Memorandum of Agreement
procedural framework for considering mitigation so that a l1 Corps
and EPA field offices will follow consistent procedures in
determining the type and level of mitigation necessary to ensure
compliance with the Section 404(b) (1) Guidelines. The MOA
clarifies requ irements contained in the Section 404(b) (1)
Guidelines in response to questions that have arisen on these
requirements. Moreover, the MOA does not establish any new
mitigation requirements beyond those currently found in the
Guidelines or modify the existing Guidelines requirements. The
MOA also maintains the flexibility of the Guidelines by expressly
recognizing that no net loss of wetlands functions and values may
not be achieved in each and every permit action.
5. As a result of recent conversations between Headquarters and
FOA regulatory staffs, several questions have consistently been
raised. In response, the Regulatory Branch staff has prepared
the enclosed “Q’s and A’s” which address many of the issues
raised. These Q’s and A’s have been reviewed and agreed to by
EPA. EPA will send the Q’s and A’s, as well as a similar memo to
all EPA Region Offices.
6. The Mitigation MOA represents a most significant and positive
step in emphasizing our conurnitment to accomplishing our mission
of restoring and maintaining our valuable aquatic resources.
Further, I am confident that the MOA will facilitate continued
improvement in our daily relations with EPA, as well as other
resource agencies.
7. Additional questions or comments may be directed to Dr. John
Hall, Acting Chief, Regulatory Branch, at (202) 272-1785 or
Mr. Michael Davis, the Regulatory Branch POC, at (202) 272-0201.
Ends H. J. HATCH
Lieutenant General, USA
Coixun nding
DISTRIBUTION:
(see Page 3)
2

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SECTION 404(b) (1) GUIDELINES MITIGATION MOA
“QUESTIONS AND ANSWERS”
4
Qi. Is the MOA a wetlands mitigation policy ?
Al. No. The purpose of the MOA is to provide general
guidance to Corps and EPA field offices on 404(b) (1)
Guidelines mitigation requirements for standard permit
applications in all waters of the United States,
including wetlands. As such, the guidance reflects agency
policy and procedures but does not itself, establish new
policy.
Q2. Does the MOA establish a No Net Loss of wetlands policy ?
A2. The MOA is not, in itself, a no net loss policy and
neither the Sectton 404 program in general, nor the MOA
in particular, is designed to achieve the national goal
of no overall net loss of wetlands. EPA and the Corps
will strive to achieve the President’s goal of no net
loss; however, the MOA clearly recognizes that mitigation
which is not appropriate or practicable will not be
required, nor will each permit be required to achieve no
net loss of wetlands.
Q3. What is mitigation sequencing ?
A3. In the context of the Guidelines and the MOA it means
first avoiding impacts through the selection of the least
damaging practicable alternative; second, taking
appropriate and practicable steps to minimize impacts;
and finally compensating for any remaining unavoidable
impacts to the extent appropriate and practicable.
Q4. Does sequencing mean you have to first pass 230.l0(aL
then 230.10(b). then 230.10(c). and finally 230.10(d) ?
A4. No. While sequencing (i.e., avoidance, minimization,
compensation) incorporates the requirements of Sections
230.10 (a) and (d), the requirements identified at
Sections 230.10 (b) and (c) are not components of
mitigation under the Guidelines.
ScctIoQ 404 Mitigation MOA - 0’s and A’s
page 1

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Q5. What does the one for one functional replacement signify ?
A5. The objective of wetlands compensatory mitigation is to
provide, at a miniiriuin, one for one functional replacement
to achieve no net loss of wetland values. In the absence
of more definitive information on the functions and
values at a specific site, a minimum of 1 to 1 acreage
replacement may be used as a reasonable surrogate for no
net loss of functions and values. However, the MOA
recognizes that this ratio may vary on a case-by-case
basis and may not be appropriate and practicable in all
cases.
Q6. Is it possible to issue a permit that causes a net loss
of wetlands ?
A6. Yes. Once a project passes 230.10(a),(b), and (C) of the
Guidelines (also reference question uinber 4), a wetlands
loss may occur when mitigation measures are not fe sible,
practicable or would accomplish only inconsequential
reductions in impacts. However, it should be einpha ized
that a project that causes or contributes to significant
degradation of the waters of the United States will fail
230.10(c) notwithstanding the exceptions for 230.10(d)
noted in the above sentence.
Q7. Have the definitions of the terms “appropriate” and
“ practicable” been changed ?
A7. No. Section 230.3(q) of the Guidelines defines the term
practicable as meaning “available and capable of being
done after taking into consideration cost, existing
technology, and logistics in light of overall project
purposes.” Since the term appropriate is not explicitly
defined in the Guidelines or Corps regulations, its
meaning was clarified in the MOA to mean “appropriate to
che scope and degree” of environmental impacts of a
project (also reference question number 8).
Q8. Is appropriate initic ation kased solely on the values and
functions of the aquatic r€3ource that will be impacted. ?
A8. Yes. A key objective of the Guidelines and the MOA is to
offset unavoidable adverse impacts to aquatic resources.
The determination of what level of mitigation constitutes
“appropriate” mitigation is based solely on the values
and functions of the aquatic resource that will be
impacted. Further, under the Guidelines, appropriate
Section 404 Mttigation MOA 0’s and A’s page 2

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mitigation is required only to the extent that it is
practicable. Public interest characteristics such as
need and societal value are not factored into a
determination of appropriate mitigation as determined by
the Guidelines. Such considerations are, however, taken
into account during the public interest review process.
Q9. Is there a preferred method for assessing functional
values of aquatic resources ?
A9. Not at this time. The Wetland Evaluation Technique (WET)
considers a broad range of ecological functions and its
use will likely increase. We realize that WET needs
additional refinement and regionalization, both of which
are underway. However, the best professional judgment of
the Corps, EPA and resrurce agencies’ representatives
must continue to play a vital role in all resource
assessments.
QO. Is there sufficient flexibility built into the MOA to
reflect the technical challenges represented in Alaska ?
AlO. Yes. EPA and the Corps recognize that the physical
characteristics associated with wetlands underlain by
permafrost pose scientific challenges regarding
compensatory mitigation. Permafrost conditions,
hydrology and climatic factors create technical problems
which may make opportunities for wetlands creation and
restoration not always practicable. The MQA states (see
Section II.B.) that only appropriate and practicable
mitigation is required under the Guidelines and, as a
result, no net loss of wetlands functions and values may
not be achieved in each and every permit action. This
technical uncertainty emphasizes the need for Corps and
EPA staff in Alaska to coordinate through established
procedures such as the Abbreviated Permit Process and
pre-application consultations to identify what is
appropriate and practicable compensatory mitigation on a
case—by—case basis.
Qil. Are there other a:eas of the country that also represent
special challenges in the implementation of the MOA ?
All. Yes. In developing the MOA, the Corps and EPA recognized
that the flexibility built into the Guidelines must also
be incorporated into the provisions contained in the MOA
in order to be responsive to varying ecological
conditions that exist nationwide. An issue that has been
404 Mitigation MOA - 0’s and A’s page 3

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brought to our attention is how the MOA will affect
certain environmental projects in Louisiana (projects
where the specific purpose is to enhance the
environment). The MOA recognizes these situations by
providing that where EPA and the Corps agree, it may be
appropriate to deviate from the mitigation sequence in
circumstances “necessary to avoid environmental harm
(e.g., to protect a natural aquatic community from
saltwater intrusion...).”
Q12. Will mitigation banks and preservation of existing
wetlands be allowed ?
Al2. The MQA recognizes that mitigation banking may be an
acceptable form of compensatory mitigation. EPA and Army
are developing additional guidance on this subject. In
the meantime, mitigation banks will be considered for
approval on a case-by-case basis as they have been in the
past. Simple purchase or “preservation” may be
acceptable only in exceptional circumstances. EPA and
the Corps will develop specific guidance for preservation
in the context of compensatory mitigation at a later
date.
Q13. How will the MOA affect applications in process ?
A13. It doesn’t. It applies to completed applications which
are received on or after 7 February 1990.
Q14. Must an alternatives analysis and/or com Pensatory
mitigation plan be completed before a public notice can
be issued ?
Al4. No. The Corps regulations and application form are
fairly specific about what information is needed to find
an application complete. Information necessary to
conduct a complete Guidelines or Public Interest Review
is not required for the issuance of a public notice. If
such information is provided by the applicant, however,
it should be summarized and presenU d in the public
notice.
Scct oo 4 Mtt gation MOA . Os at d A’s p gc 4

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Ql5. Is it necessary to issue a new public notice for
discharges of fill materi j,. associated with a
compensatory mitigation plan, or part of a plan, that ‘ .‘as
not included in the original notice ?
A15. Generally no. However, this is a judg-rnent call and if
the proposed changes result in a substantial increase in
the scope of the overall project or there has been a
demonstrated interest by the public, an additional notice
may be required.
Q16. To what extent must the Corps coordinate changes in a
proposed proiect including mi.iqation plans, with the
resource agencies ?
A16. In general, all substantive changes should be
coordinated. The Corps is responsible for determining
the appropriate amount of coordination, keeping in mind
that insufficient coordination is a criterton for permit
elevation under the 404(q) MOAS.
Q17. Is the Corps still responsible for determining compliance
with th 404(b (l) Guidelines on a permit-by—permit
basis ?
A17. Yes. As in the past, Guidelines compliance
determinations are the responsibility of the Corps. EPA
will continue to respond to public notices as it has in
the past using the MOA to develop its position
(recommendations) on projects.
Q 18. Does the MOA require the Corps to take an enforcement
action whenever it discovers non—compliance with the
mitigation requirements of a permit ?
Al8. No. The Corps is required to take action in accordance
with 33 CFR Part 326 which establishes a discretionary
responsibility regarding the initiation of enforcement
actions. The Corps, as part of a new emphasis on permit
compliance, is strongly encouraged to take appropriate
action to ensure compliance with all permit conditions,
particularly conditions imposed to satisfy the
Guidelines. The MOA does not affect this initiative.
Q19. Does the MOA apply to after—the—fact applications ?
A19. Yes.
Section 4.4 Mitigat.on MOA 0’s and A’s page S

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Q20. j- ow does the MOA affect Corps civil works projects ?
A20. While the MOA focuses on the Section 404 regulatory
program, the Corps plans to integrate the mitigation
framework provided in the MQA into all Corps activities.
Section 404 Mitiption MOA 0’s and A’s page 6

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11-3
“Memorandum of Agreement Between the Department of the
Army and the Environmental Protection Agency
Concerning Previously Issued Corps Permits” 1/19/89

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6—89
ADMINISTRATIVE fATER1ALS
19 ELR 35115
(Department of the Army/Environmental Protection Agency Jan. 19, 1989)
1. The MOA Between the Department of the Army and the
Environmental Protection Agency (EPA) Concerning Federal En-
forcement of the Section 404 Program of the Clean Water Act (Sec-
tion 404 Enforcement MOA) establishes policy and procedures pur-
suant to winch EPA and Army will undertake federal enforcement
of the dredged and fill matenal permit requirements of the Clean
Water Act.
2. For purposes of effecwe administration of the statutory en-
forcement authorities of both EPA and the U.S. Army Corps of
Engineers (Corps), the MOA sets forth an appropriate allocation
of enforcement responsibilities between EPA and the Corps. Given
that the Corps is the federal permit-issuing authority, for purposes
of implementation of the provisions of the Section 404 Enforce-
ment MOA the Corps will be responsible for determining whether
an alleged illegal discharge of dredged or fill material is authorized
under an individual or general permit.
3. When EPA becomes aware of an alleged illegal discharge,
it will contact the appropriate Corps district and request a determin-
ation as to whether the discharge is authorized by an individual or
general permit.
4. A Corps determination that the discharge is authorized by
an individual or general permit represents a final enforcement deci-
sion for that particular case. Likewise, a Corps determination that
the discharge is not authorized by an individual or general permit
(i.e., it is an unpermitted discharge) is final for that particular case.
5. In order to promote effective and expeditious action against
possible illegal discharges, the Corps district upon request from EPA
is responsible for providing a determination within two working
days in those cases where EPA provides the Corps with sufficient
information to make this determination in the office. However, if
sufficient information is not available to the Corps so that addi-
tional investigation by the Corps is needed before it is able to re-
spond to the EPA request, the Corps will provide a determination
to EPA within 10 working days. If the Corps does not provide a
determination to EPA within the applicable time frame, EPA may
continue to investigate the case and determine whether the activity
constitutes an unauthorized discharge, and the EPA determination
will be final for that particular case.
6. Notwithstanding the above provisions, in situations where
an alleged illegal discharge is ongoing and EPA reasonably believes
that such discharge is not authorized, EPA may take immediate
enforcement action against the discharger when necessary to
minimize impacts to the environment. However, EPA will also con-
tact the appropriate Corps district and request a determination as
to whether the discharge is authorized by an individual or general
permit. A subsequent determination by the Corps, pursuant to
paragraph five above, that the discharge is authorized represents
a final enforcement decision for that particular case.
7. This guidance shall remain in effect for as long as the Sec-
tion 404 Enforcement MOA is in effect, unless revisions to or revoca-
tion of this guidance is mutually agreed to by the two signatory
agencies.
Robert W. Page
Assistant Secretary of the Army (Civil Works)
January 19, 1989
Rebecca W. Hannier
Acting Assistant Administrator for Water
U.S. Environmental Protection Agency
Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning PreviousIy.Issued Corps Permits
January 19, 1989

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11-4
“Memorandum of Agreement Between the Assistant Administrators
for External Affairs and Water, U.S. Environmental Protection
Agency, and the Assistant Secretary of the Army for Civil Works
Concerning Regulation of Discharge of Solid Waste Under
the Clean Water Act” 1/17/86

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I I “7
Federal Register / Vol.51 , No 50 / Friday. March 14. 1986 I Notices
88
DEPARTMENT OF DEFENSE
Department of the Army
ENVIRONMENTAL PROTECTION
AGENCY
Water Pollution Control; Memorandum
of Agreement on Solid Waste
February 28. 1986
AGENCY: Department of the Army, DoD
and Environmental Protection Agency
ACTION: Notice of agreement .
SUMMARY: The Department of the Army
and the Environmental Protection
Agency (EPA) have entered into an
agreement to promote effective control
under the Clean Water Act (CWA) of
discharges of solid and semi-solid waste
materials discharged into the waters of
the United States for the purpose of
disposal of waste.
DATE: The Memorandum of Agreement
(MOA) was executed on January 23.
1986. and shall take effect on April 23,
1986. Written comments received on or
before June 23, 1986, will be considered
in any future revision undertaken to the
Agreement Written comments received
after June 23, 1986. will be considered if
“the timing of any future revision allows
for such consideration.
ADDRESS Office of the Assistant
Secretary of the Army (Civil Works),
U.S. Department of the Army, Room
2E570, Washington. DC, 20310-0103; or
Office of Federal Activities (A—104), U.S.
Environmental Protection Agency, 401 M
Street SW., Washington, DC, 20460.
POR FURThER INFORMATION CONTACT
Morgan Rees, Assistant for Regulatory
Affairs, Office of the Assistant
Secretary of the Army (Civil Works).
Department of the Army, Pentagon,
Room 2E569, Washington. DC, 20310,
(202) 695—1370.
John Meagher, Director, Aquatic
Resource Division, Office of Federal
Activities (A—104), Environmental
Protection Agency, Washington. DC,
20460, (202) 382—5043.
UPPLEMENTARY INFORMATION Under
section 404 of the CWA t e Army Corps
of Engineers (and States approved by
EPA) issue permits for discharges of
dredged and fill material mto waters of
the United States which comply with the
Act and applicable regulations. Under
section 402 of the CWA (the National
Pollutant Discharge Elimination System
NPDES Program), EPA (and States
t Pproved by EPA) issue permits for
discharges of all other pollutants into
Waters of the United States, which
Comply with the Act ai d applicable
regulations.
The MOA was entered into to resolve
a difference (since 1980) between Army
and EPA over the appropriate CWA
program for regulating certain
discharges of solid wastes into waters of
the United States The Army Corps of
Engineers’ definition of “fill material”
provides that only those materials
discharged for the primary purpose of
replacing an aquatic area or of changing
the bottom elevation of a waterbody are
regulated under the Corps section 404
permit program These discharges
include discharges of pollutants
intended to fill a regulated wetland to
create fast land for development. The
Corps definition excludes pollutants
discharged with the primary purpose to
dispose of waste which, under the Corps
definition, would be regulated under
section 402. Under EPA’s definition of
“fill material,” all such solid waste
discharges would be regulated under
section 404, regardless of the primary
purpose of the discharger. This
difference has complicated the
regulatory program for solid wastes
discharged into waters of the United
States.
A February 1984 Settlement
Agreement in NWFv. Marsh, a case
brought by 16 environmental groups
against Army and EPA on a number of
section 404 matters reqwred resolution
of the definition of fill issue by
September 1984. Army and EPA have
been working toward a resolution since
settlement. In Section 404 oversight
heanngs conducted by the Senate
Environment and Public Worls
Committee in 1985, EPA and Army
agreed to make every effort to resolve
the matter by the end of 1985.
The agreement published today
provides an interim arrangement
between the agencies for controlling.
discharges. In the longer term. EPA and
Army agree that consideration given to
the control of discharges of solid waste
both in waters of the United States and
upland should take into account the
results of studies being implemented
under the 1984 Hazardous and Solid
Waste Amendments (HSWA) to the
Resource Conservation and Recovery
Act (RCRA). signed into law on
November 8, 1984.
The amendments to RCRA require
EPA, by November 8, 1987, to submit a
report to Congress determining whether
the RCRA Subtitle D Criteria (40 CFR
Part 257) are adequate to protect human
health and the environment from
groundwater contamination, and
recommending whether additional
authorities are needed to enforce the
Criteria. In addition, EPA must revise
the Criteria by March 31, 1988, for solid
waste disposal facilities that may
receive hazardous household waste o
small quantity generator hazardous
waste At a rrnninium. these revisions
should require not only groundwater
monitoring as necessary to detect
contamination, but should also estabti
criteria for the acceptable location of
new or existing facilities, and provide
for corrective action, as appropriate
The main focus of the interim
arrangement is to ensure an effective
enforcement program under section 3
of the CWA for controlling discharges
solid and semi-solid wastes into w te
of the United States for the purpose ol
disposal of waste When warranted,
EPA will normally initiate section 309
action to control such discharges If it
becomes necessary to determine
whether section 402 or 404 applies to
ongoing or proposed discharge, the
determination will be based upon
criteria in the agreement, which provu
inter a/ia. for certain homogeneous
wastes to be regulated under the secti
402 (NPDES) Program and certain
heterogeneous wastes to be regulated
under the section 404 Program.
To promote regulatory consistency
those seeking to apply for authorizati.
to discharge these wastes into waters
the United States, the agreement
encourages the use of the criteria in th
MOA by prospective dischargers. It al
provides a procedure for the agencies’
consideration of any permit applicatio
received, and calls upon the agencies
advise prospective dischargers
regarding the probable unsuitability o
certain kinds of wastes for discharge
into waters of the United States.
This agreement does not affect the
regulatory requirements for materials
discharged into waters of the United
States for the primary purpose of
replacing an aquatic area or of changin
the bottom elevation of a water body.
Discharges listed in the Corps definiti
of “discharge of fill material,” 33 CFR
323 2(1) remain subject to section 404
even if they occur in association with
discharges of wastes meeting the cnte
in the agreement for section 402
discharges.
Unless extended by mutual
agreement, the agreement will expire
such time as EPA has accomplished
specified steps in Its Implementation
RCRA, at which time the results of thi
study of the adequacy of the existing
Subtitle D criteria and proposed
revisions to the Subtitle D criteria for
solid waste disposal facilities, includi
those that may receive hazardous
household wastes and small quantity
generator waste, Will be known. In
addition, data resulting from actions

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8872
Federal Register / Vol. 51, No. 50 I Friday . March 14, 1986 I Notices
under the interim agreement can be-
considered at that time..
The Department of Army and EPA
will ensure that decisions made
pursuant to this agreement meet the
requirements of the CWA and are
consistent with the Act’s objective to
restore and maintain the chemical.
physical, and biological integrity of the
Nation’s waters. EPA and Army will
also take steps to ensure that discharges
of solid and semi-solid wastes Into
waters of the United States are
evaluated consistently under the section
402 and 404 programs, and that this
agreement will be implemented in a
manner that imposes no unnecessary
burden on the regulated sector.
Text
January 17, 1988.
Memorandum of Agreement Between the
Assistant Admln1sfratn , for External Affair,
and Watas, U.S. Environmental Protection
Agency, and the Assistant Secretary of the
Army for Civil Worki Concerning Regulation
of Discharge of Solid Waste Under the Clean
Wat e rA j
A. Bos,s of Agreement
1. Whereas the Clean Water Act has as Its
principal objective the requirement ‘to
restore and maintain the chemical, physical.
and biological thtegrlty of the Nation’s
waters; and,
2. Whereas section 301 of the Clean Water
Act prohibits the discharge of any pollutant
into waters of the United States except in
compliance with sections 301.302,306,307.
316,402, and 404 of the Act and
3. Whereas EPA. and States approved by
EPA. have been vested with authority to
permit discharges of pollutants, other than
dredged or fill material, into waters of the
United States pursuant to sectIon 402 of the
Clean Water Act that satisfy the
requirements of the Act and regulations
developed to administer this program
promulgated in 40 CFR 122-125: and
4. Whereas the Army. and States approved
by EPA, have been vested with authority to
permit discharges of dredged or fill material
into waters of the United States that satisfy
the requirements of the Act and regulations
developed to administer this program
promulgated In 33 CFR Part 320 et seq and 40
CFR Part 230 et seq. and
5 Whereas the definitions of the term ‘1111
material” contained in the aforementioned
regulations have created uncertainty as to
whether section 402 of the Act or section 404
is intended to regulate discharges of solid
waste materials into waters of the United
States for the purpose of disposal of waste.
and
8 Whereas the Resource Conservation and
Recovery Act Amendments of 1984 (RCRA)
require that certain steps be taken to impro e
the control of solid waste, and
7 Whereas interim control of such
discharges is necessary to ensure sound
management of the Nation’s waters and to
avoid complications in enforcement actions
taken against persons discharging pollutants
into waters of the United States without a
permit;.
8. The undersigned agencies do hereby
agree to use their respective abilities
cooperatively In an interim program to
control the discharges of solid waste material
into waters of the United States.
B Procedures
1. When either agency is aware of a
proposed or an unpermitted discharge of
solid waste into waters of the United States,
the agency will notify the discharger of the
prohibition against such discharges as
provided in section 301 of the Clean Water
Act. Such notice Is not a prerequisite for an
enforcement action by either agency.
2. NormaLly, If an activity in B.1 above
warrants action, EPA will issue an
administrative order or file a complaint under
section 309 to control the discharge.
3. In issuing a notice of violation or
administrative order or in filing a complaint.
it is not necessary In order to demonstrate a
violation of section 301(a) of the Clean Water
Act to Identify which permit a perinitless
discharge should have had. However, after
an enforcement action has commenced, a
question may be raised by the court.
discharger, or other party as to whether a
particular discharge having the effect of
replacing an aquatic area with dry land or of
changing the bottom elevation of a water
body meets the primary purpose test for “fill
material” In the Corps definitIon (33 CFR
323.2(k)). For example, such question may be
raised In connection with a defense, or It may
be relevant to the relief to be granted or the
terms of a settlement.
4. To avoid any lmpedlm nt to prompt
resolution of the enforcement action. If such a
question arises, a discharge will normally be’
considered to meet the definition of “fill
material” in 33 CFR 323.2(k) for each specific
case by consideration of the following
factors:
a. The discharge has as its primary purpose
or has as one principle purpose of multi-
purposes to replace a portion of the waters of
the United States with dry land or to raise the
bottom elevation.
b. The discharge results from activities
such as road construction or other activities
where the material to be discharged is
generally Identified with Construction-type
activities.
c. A principal effect of the discharge is
physical loss or physical modification of
waters of the United States, including
smothering of aquatic life or habitat
d The discharge is heterogeneous in nature
and of the type normally associated with
sanitary landfill discharges
5 On the other hand, in the situation in
paragraph 83. a pollutant (other than
dredged material) will normally be
considered by EPA and the Corps to be
subject to section 402 ii it is a discharge in
liquid, semi-liquid, or suspended form or if it
is a discharge of solid material of a
homogeneous nature normally associated
with single industry wastes, and from a fixed
conveyance, or if trucked, from a single site
and set of known processes These materials
include placer mining wastes, phosphate
mining wastes, titanium mining wastes sand
and gravel wastes, fly ash. and drilling-muds.
As appropriate. EPA and the Corps will
identify additional such materials -
8 While this document addresses
enforcement cases prospective dischargers
who apply for a permit will be encouraged to
use the above criteria for purposes of project
plannn Ifs prospective discharger applies
for a section 404 permit based on the
considerations in paragraph 84.. or for a
Section 402 permit based on the
considerations in paragraph B 5.. the
application will normally be accepted for
processing If a prospective discharger
applies for a 404 permit for discharge of
materials that might be hazardous, he shall
be advised that dischargers of wastes to
waters of the United States that are
hazardous under RCRA are unlikely to
comply with the section 404(b)(1) GuIdelines
To facilitate processing of applications for
permits under sections 402 or 404 for
discharges covered by this agreement, an
application for such discharge shall not be
accepted for processing until the applicant
has provided a determination signed by the
State or appropriate interstate agency that
the proposed discharge will comply with
applicable provisions of State law including
applicable waler quality standards, or
evidence of waiver by the State or interstate
agency As mandated under the Clean Water
Act, neither a 402 nor a 404 permit will be
issued for a discharge of toxic pollutants in
toxic amounts Prospective applicants for
section 402 permits shall be advised that the
proposed discharge will be evaluated for
compliance with the Act. in particular with
sections 101(a), 301.303.304.307.402. and 405
of the Act.
C. Deterrnuiat,on of Permit
1. In enforcement cases, where a question
arises under paragraph 8.3 as to which permit
would be required for a permitless discharge.
the enforcing agency will determine whether
the criteria in paragraph B 4 or B 5, if either.
have been satisfied, with concurrence from
the other agency If the enforcing agency
concludes that neither set of the cnteria has
been met and additional analysis is required
to determine which Section applies, or if the
necessary concurrence is not forthcoming
promptly, the Division Engineer and the
Regional Administrator (or designees) will
consult and determine which permit program
is applicable
2 In non-enforcement situations the
agency receiving an application shall
determine whether it meets the criteria in
paragraphs 4 or 5. as the case may be lithe
agency determines that the criteria applicable
to its permit program have not been met, it
ilI ask the other agenry to determine
whether the criteria for the latter s permit
program have been met
If neither agency determines that the
criteria for its permit program have been met.
the Division Engineer and the RA (Or their
designees) shall consult and determine which
agency shdli process the application in
question
D Publication in the Federa/Regi ,ter
Since this 1emorandum of Agreement
cl.irifies the definition of flit material ith

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12/
Federal Register I Vol. 51, No 50 I Friday, March 14, 1986 I Notices
88’
respe.t to discharges of solid waste into
waters of the United States, the parties in this
agreement shall ointly publish it in the
Federal Register within 45 days after it has
been signed
E Efft . .tive Dokc,
i This agreement shdll take effect 90 days
after the date of the last signature below and
will continue in effect until modified or
re .okcd by agreement of both parties or
revoked by either party alone upon six
months written notice
2 This agreement automatically expires at
such time as EPA has submitted its Report to
Congress on the Results of Study of the
Adequacy of the Existing Subtitle D Criteria
and has published a Notice of Proposed
Revisions to the Subtitle 0 Critena in the
Federal Register, unless the agencies
mutually agree that extension of this
agreement is needed
Dated January 22, 1986
Jennifer J Manson.
Assistant , dm:nist rotor for External Affairs,
US Environmental Protection Agency
Dated January 23, 1980
Larry Jensen,
Assistont Admuustrntor for Water, U.S.
Environmental Protection Agency.
Dated January 17. 1988
Robert K Dawson.
Assistant Secretary of the Army (Civil
Works)
Dated March 11, 1986
Jennifer J. Manson,
Assistant Administrator for ExternalAffairs,
IfS Env,mnmentol Protection Agency
Lawrence J. Jensen,
Assistant Administrotar for Water. US
Env,mnmental Protection Agency
Robert K Dawson.
Asaisiant Secretory of the Army for Civil
WorAs. Deportment of tue Army
(FR Doc 86-5611 Filed 3—13--86, 845 amj
WNG COOE 3710-oe-M
Intent To Prepare a Draft
Supplemental Environmental Impact
Statement (SE1S) for the East-bank
Barrier Levee Feature of the New
Orleans to Venice, Louisiana,
Humcane Protection Project
AGENCY: New Orleans D rict, Army
Corps of Engineers, DOD.
ACTION: Notice of intent to prepare a
draft SEIS.
SUMMARY:
1. Proposed Action
In 1962, Pub. L 874, 87th Congress,
authorized the project “Mississippi
River Delta at and below New Orleans
to Venice, Louisiana.” The project
Would prevent tidal damages along the
Mississippi River in lower Plaquemmes
Parish, Louisiana, by increasing the
height of the existing back levees.
altering the existing drainage facilities,
and modifying the main river levee as
necessary Construction of a back levee
on the east bank from Phoenix to
Bohemia, Louisiana, begarrin 1966, and
construction of a back levee on the west
bank from Tropical Bend to Venice.
Louisiana, began in 1968 Construction
of the remaining back levee on the west
bank from City Price to Tropical Bend
has not begun The East-bank Barrier
Levee feature would protect the west
bank between City Price and Venice
from storms to the east
2. Alternatives
a East-bank P/an This alternative
consists of a barrier levee along the east
bank of the Mississippi River from
opposite City Price near Bohemia,
Louisiana, to an area opposite Venice,
Louisiana. In addition, this alternative
includes an enlarged Mississippi River
and Tributaries (MR&T) levee on the
west banic of the Mississippi River from
Fort Jackson to Venice. Louisiana.
b. West-bank Plan. This alternative
involves an enlargement of the existing
MR&T levee to hurricane grade from
City Price, Louisiana, to Venice,
Louisiana In reaches where stability
conditions do not permit an enlarged
levee, a levee setback or floodwall Is
proposed.
c. No Action Plan The no action
alternative would result in no additional
hurricane protection, and is the basis of
comparison for the action alternative
plans evaluated.
3. Scoping Process
a. A public meeting was held on
March 13, 1956 in New Orleans,
Louisiana, to discuss the views of the
local interests concerning hurricane’
flooding and protection On November
30, 1984 and January 10. 1985, public
meetings were conducted by the
Plaquemines Parish Commission Council
to receive public input on the project.
particularly the levee segment from City
Price to Tropical Bend on the west bank
of the Mississippi River. The public
involvement program will include
scoping meetings to obtain the public’s
input as to alternatives under
consideration and significant resources
to be evaluated in the SEIS. The
participation of affected Federal, state,
and local agencies, and other interested
private organizations and parties will be
invited.
b. Significant issues to be analyzed in
the SEIS include impacts of the
proposed changes on biologicaL cultural,
historical, social, economic, water
quality, and human resources, and
project costs.
c The U S Fish and Wildlife Service
will provide Planning Aid information
and a Coordination Act Report for the
draft SEIS
d. The draft SEIS will be coordtnate
with all required Federal, state, and
local agencies, environmental groups,
landowner groups, and interested
individuals All review comments
received will be considered and
responses will be made
4. Public Meeting(s)
An intra-agency scoping meeting of
concerned Federal and state natural
resource agencies was conducted on
January 29, 1986. and an additional
meeting with these agencies will follow
as the project planning progresses A
public scoping meeting is tentatively
scheduled on March 18, 1988 to obtain
the public’s input.
5. AvailabilIty
The draft SEtS is scheduled to be
available to the public in May 1987.
AODRESS Questions concerning the
proposed action and draft SEIS may b
directed to Mr. E. Scott Clark, U.S. Art
Corps of Engineers. Environmental
Quality Section (LMNPD-RE), P.O. Bo
60267, New Orleans, LouisIana 70160-
0267, telephone (504) 882—2321.
Dated. March 5. 1988.
Eugene S. Wltherepoon.
Colonel, Corps of Engineers, District
Engineer.
[ FR Doc. 86-5582 Filed 3-13-66.8.45 aml
eIUJNG COOE 3710-S4-M
DEPARTMENT OF DEFENSE
Army Science Board; Closed Meetinc
In accordance with section 10(a)(2) i
the Federal Advisory Committee Act
(Pub. L. 92-463), announcement is mad
of the following Committee Meeting:
Name of the Committee: Army
Science Board (ASB)
Dates of Meeting. Thursday & Frida
3-4 April 1988
Times of Meeting: 0800—1700
(Thursday), 0800—1530 (Friday)
Places. Pentagon, Room 2E715B,
Washington, DC 20310
Agenda: The Army Science Board I
Hoc Subgroup on Ballistic Missile
Defense will meet for briefings on
deployment options, lasers and
mstrumen’tation reviews. This meetin
will be closed to the public in
accordance with section 552b(c) of Ti
5, U.S.C., specifically subparagraph (‘
thereof, and Title 5, U.S.C.I Appendix
subsection 10(d). The classified and
nonclassified matters to be discussec

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11-5
“Amendment to the January 19, 1989, Department of the Army/Environmental
Protection Agency Memorandum of Agreement Concerning the Determination of the
Geographic Jurisdiction of the Section 404 Program and the Application of the
Exemptions Under Section 404(1) of the Clean Water Act.” 1/4/93
“Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning the Determination of the Geographic
Jurisdiction of the Section 404 Program and the Application of the Exemptions Under
Section 404(1) of the Clean Water Act.” 1/19/89
Memorandum: “Effects of the Amendment to the Army/EPA Geographic Jurisdiction
Memorandum of Agreement on Wetland Delineations and Pending Enforcement
Actions.” 1/14/93

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.ctO S?
4 L pqØ t .
United States Environmental Protection Agency
Office of Water
Washingto i, D C. 20460
United States Department of the Army
Office of the Assistartt Secretary
Washrngton 1 D.C. 20310-0103 - - -
AMENDMENT TO THE JANUARY 19, 1989,
DEPARTMENT OF THE ARMY/ENVIRONMENTAL PROTECTION AGENCY
MEMORANDUM OF AGREEMENT CONCERNING THE Di mRMINATION
OF THE GEOGRAPHIC JURISDICTION OF THE SECIION 404 PROGRAM AND
THE APPLICATION OF THE EXEMPTIONS UNDER SECTION 404(0
OF THE CLEAN WATER ACT
In order to assure consistency and predictability in wetland determinations made
by the two agencies, the following amendment to the Januaiy 19, 1989, Department of
the Army/Environmental Protection Agency Memorandum of Agreement concerning the
determination of the geographic jurisdiction of the Section 404 program and the
application of the exemptions under Section 404(f) of the Clean Water Act is hereby
adopted:
Effective on the date of the last signature below, the second sentence of
paragraph 2 of the “ Polk ? sectIon Is amended to read as follows (new language
Is Italicized; deletions are Ilned.out):
“In making its their determinations, the Corps and EPA will adhere to the
“ Federal Manual fer Identifying and Delineating Jurisdietienal Wetlands “Corps of
Engineers WedanSs Delineation Manual” (Waterways Erperime u Station Technical
Report Y.87.1, Ja,wa, 1987) and EPA guidance on isolated waters, and other
guidance, interpretations, and regulations issued by EPA to clarify EPA positions
on geographic jurisdiction and exemptions.”
4,
Dora
Assistant Secretary of the
Army
(Civil Works)
9
M bflL 5 &M t I
V uana S. Wilcher
Assis nt Administrator for Water
Environmental Protection Agency
7/
g/g3
Date
Date

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MEMORANDUM 01’ AGREEMENT
BETWEEN THE DEPARTMENT 01’ THE ARM!
AND THE ENVIRONMENTAL PROTECTION AGENCY
CONCERNING THE DETERMINATION or THE
GEOGRAPHIC JURISDICTION OP THE SECTION 404 PROGRAM
AND THE APPLICATION or THE EXEMPTIONS
UNDER SECTION 404(f) 01’ THE CLEAN WATER ACT
I. PURPOSE AND SCOPE . -
The United States Department of the Army (Army) and the
United States Environmental Protection Agency (EPA) hereby
establish the policy and procedures pursuant to which they will
determine th. geographic jurisdictional scope of waters of the
United States for purposes of seetfon 404 and the application of
the exemptions under section 404(f) of the Clean Water Act (CWA).
The Attorney General of the United States issued an opinion
on September 5, 1979, that the Administrator of EPA
(Administrator) has the ultimate authority under the CWA to
determine the geographic jurisdictional scope of section 404
waters of the United States and th. application of the section
404(f) exemptions. Pursuant tO this authority and for purposes
and effective administration of the 404 program, this Memorandum
of Agreement (MOA) sets forth an appropriate allocation of
responsibilities between the EPA and the U.S. Army Corps of
Engineers (Corps) tO determine geographic jurisdiction of the
section 404 program and the applicability of the exemptions under
section 404(f) of the CWA.
II. POLICY .
It shall be the policy of the Army and EPA for the Corps to
continue to perform the majority of the geographic jurisdictional
determinations and determinations of the applicability of the
exemptioni under section 404(f) as part of the Corps role in
administering the section 404 regulatory program. It shall also
be the policy of the Army and EPA that the Corps shall fully
implement EPA guidance on determining the geographic extent of
section 404 jurisdiction and applicability of the 404(f)
exemptions.
Case-specific determinations made pursuant to the terms O
this MOA will be binding on the Government and represent th
Government’s position in any subsequent Federal action or
litigation regarding the case. In making it. determinations, the

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—-2—
Corps will implement and adhere to the “Federal Manual for
Identifying - and— Delineating Jurisdictional Wetlands,”.- EPA
guidance on isolated waters, and other guidance, interpretations,
and regulations issued by EPA to clarify EPA positions on
geographic jurisdiction and exemptions. All future programmatic
guidance, interpretations, and regulations on geographic
jurisdiCtiOfl and exemptions shall be developed by EPA with input
from the Corps; however, EPA will be considered the lead agency
and will make the final decision if the agencies disagree.
III. DEFIVITIONS .
A. Special Case . A special case is a circumstance where
EPA makes the final determination Qf the geographic jurisdic-
tional scope of waters of the United States for purposes of
section 404. -
Special cases may be designated in generic or project-
specific situations where significant issues -or- technical
difficulties are anticipated or exist, concerning the
determination of the geographic jurisdictional scope of waters of
the United States for purposes of section 404 and where
clarifying guidance is or is likely to be needed. Generic
special cases will be designated by easily identifiable political
or geographic subdivisionS such as township, county, parish,
state, EPA region, or Corps division or district. EPA will
ensure that generic special cases are marked on maps or some
other clear format and provided to the appropriate District
Engineer (DC).
B. Special 404(f) Matters . A special 404(f) matter Is a
circumstance where EPA makes the final det.rmination of the
applicability of exemptions under section 404(f) of ths CWA.
A special 404(f) matter may be designated in generic or
project-specific situations where significant issues or technical
difficulties are anticipated or exist, concerning the
applicability of exemptions under section 404(f), and where
clarifying guidance is, or is likely, to be needed. Generic
special 404(f) matters will be designated by easily identifiable
political or geographic subdivisions such as township, county,
parish, state, EPA r.gion, or Corps division or district and by
specific 404(f) exemption (e.g., 404(f) (1) (A)).
IV. PROCEDURES .
A. Regional Lists . Each regional administrator (Rh) shall
maintain a regional list of current designated special cases and
special 404(f) matters within each region, including
documentation, if appropriate, that there are no current
designated special cases or special 404(f) matters it’ the region.

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—3—
The RA shall create an initial regional list and transmit it to
the appropriate OS within _30 days of the date of the last
signature on this MOA. tn”otder to be eligible for a regional
list, the designated special cases and special 404(f) matter must
be approved by the Administrator. (NOTE: Thos. geographic areas
designated as current special cases pursuant to the 1980
Memorandum of Understanding on Geographic Jurisdiction of the
Section 404 Program, may be Incorporated into the initial
regional lists without additional approval by the Administrator
based on township, county, parish, state or other appropriate
designation, as described in paragraph III. A. of this MOA but
will no longer be designated by forest cover type.)
B. Changes to the Regional Lists . Changes to the regional
lists shall be proposed by the Rh and approved by the
Administrator and-may include additions toI amendm.nts to, or
deletions from the regional lists. When the RA proposes an
addition, amendment, or deletion to the regional list, th. Rk
shall forward the proposal to EPA Headquarters for review and
approval. When the Rh proposes an addition or amendment in
writing or by phone to th. appropriate Corps DE, the Corps will
not make a final geographic jurisdictional determination within
the proposed special case area for a period of ten working days
from th. date of the R notification. The Corps may proceed to
make determinations in the proposed special case area after the
ten day period if it has not been provided final notification of
EPA Headquarters approval of the RAs proposed changes. Deletions
to the regional list do not become effective until a revised
regional list, approved by EPA Headquarters, is provided to the
appropriate 0!.
C. Project Reviews . The 0! shall review section 404
preapplication inquiries, permit applications, and other matters
brought to his attention, which involve the discharge of dredged
or fill material into waters of thi United States to determine if
a current designated special cas• or special 404(f) matter is
involved.
(1) Special Cases/Special 404(f) Matters.
For those projects involving a current designated
special ca.. or special 404(f) matter, the 0! shall request that
the Rh make the final determination of th. geographic juris-
dictional scope of waters of the United States for purposes of
section 404 or applicability of the ez.mptions under section
404(f). The Rh shall make the final determination, subject to
discretionary review by SPA Headquarters, and transmit. it to the
OS, and to the applicant/inquirer.

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—4—
(2) floi —Specia1 Cases/Non-Special 404(f) Matters.
For those projects not involving a current
designated special case or special 404(f) matter, the DE shall
make final determinations and communicate those determinations
without a requirement for prior consultation with EPA.
D. Determination of Special Cases or Special 404(f)
Matters . When the special case or special 404(f) matter has been
designated on a project—specific basis, issuaric. of the final
determination by the RA will serve as guidance relevant to the
specific facts of each particular situation, and will terminate
the speciaLcase or special 404(f) matter. design tion. When the
special case or special 404(f) matter has been designated on a
generic basis, EPA Headquarters will develop,-- in consultation
with Army, relevant programmatic guidance for determining the
geographic jurisdictional scope of waters of the United States
for the purpose of section 404 or the applicability of exemptions
under section 404(f). Special cases and special 404(f) matters
designated on a generic basis remain in eff.ct until (1) a
deletion from the regional list is proposed and processed
according to paragraph tV—B of this MOA, or (2) EPA Headquarters
issues programmatic guidance that addresses the relevant issues
and specifically deletes the special case or special 404(f)
matter from the regional list(s), whichever occurs first.
E. Uncertainties Regarding Special Cases/Sp•cial 404(f)
Matters . Should any uncertainties arise in determining whether a
particular action involves a current designat.d special case or
special 404(f) matter, the DE shall consult with the RA. Upon
completion of the consultation, the RA will make th. final
determination as to whether the action involves a current
designated special case or special 404(f) matt.r.
P. Compliance Tracking . In order to track th. OVa
compliance with EPA guidance, the DE shall make his files
available for inspection by the RA at the district office,
including field notes and data sheets utilized in making final
determinations as well any photographs of the sit. that may be
availabls. Copies of final geographic jurisdictional determin-
ations will be provided to the RA upon request at no cost to EPA
unless the sample size exceeds 10 percent of the number of
determinations for the sample period. Copies in excess of a) L.
percent sample will be provided at EPA expense. To ensure that
EPA is aware of determinations being made for which notification
is not forwarded through th. public notic. process, the Corps
will provide copies to EPA of all final determinations of no
geographic jurisdiction and all final dsterminations that an
exemption under Section 404(f) is applicable. Should EPA become
aware of any problem trends with the DE’s implementation of
guidance, EPA shall initiate interagency discussions to address
the issue.

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—5—
V. RELATED ACTIONS .
A. Enforcement Situations . For those investigations made
pursuant to the 1989 Enforcement MOA between Army and EPA
concerning Federal enforcement of section 404 of the CWA, which
involve areas that ar. current designated spec a1 cases, the Rh
shall make the final determination of the geographic jurisdic-
tional scope of waters of the United States for purposes of
section 404. The Rh’s determination is subject to discr.tionary
review by EPA Headquarters, and will be binding regardless of
which agency is subsequently designated lead enforcement agency
pursuant to the 1989 Enforcement MOA. For those investigations
not involving special cases, the agencies will proceed in
accordance with the provisions of the 1989 Enforcement MOA. -
Eor those investigations made pursuant to the 1989
Enforcement MOA between Army and EPA concerning Federal
enforcement of section 404 of the CWA, which involve current
designated special 404(f) matters, the Rh shall make the final
determination of the applicability of the exe tions under
section 404(f). The Rh determination is subject to discretionary
review by EPA Headquarters, and is binding regardless of which
agency is subsequently designated lead enforcement agency
pursuant to the 1989 Enforcement MOA. For those investigations
not involving special 404(f) matters, the agencies will proceed
in accordance with the provisions of the 1989 Enforcement MOA.
B. Advanced Identification . EPA may elect to make the
final determination of the geographic jurisdictional scope of
waters of the United States for purposes of section 404, as part
of the advanced identification of disposal sites under 40 CFR
230.80, subject to discretionary review by EPA Headquartsrs, and
regardless of wheth.r the areas involved are current designated
special cases, unless the D I has already made a final geographic
jurisdictional determination. Any determinations under this
section shall be completed in accordance with paragraph IV of
this MOA.
C. 404(c) Actions . EPA may elect to make the final
determination of the geographic jurisdictional scope of waters of
the United States for purposes of section 404(c) of the CWA.
V I. GENERAL PROVISIONS .
A. All final determinations must be in writing and signed
by either the DI or Rh. Final determination of the DI or RA made
pursuant to this MOA or the 1980 Memorandum of Understanding on
Geographic Jurisdiction of the Section 404 Program, will be
binding on the Government and represent the Government’s position
in any subsequent Federal action or litigation concerning that
final determination.

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-6—
B. The procedures and responsibilities of
specified in this MOA may be delegated to
subordinates consistent with established agency
Headquarters procedures and responsibilities specified
may only be delegated within headquarters.
C. Nothing in this document
modify, or otherwise affect th.
authorities of either agency.
0. This- agreement shall take effect and supercede the
April 23, 1980, Memorandum of- Understandi-ng- on Geographic
Jurisdiction of the Section 404 Program on the 60th day after the
date of thelaststgnaturi below and will continue in effect for
five years, unless extended, modified or revoked by agreement of
both parties, or revoked by either party alone upon six months
written notice, prior to that time.
‘I. I+s , .- -
Rebecca W. Hanmer
Acting Assistant Administrator
for Water
U. S. Environmental Protection
Agency
each agency
appropriate
procedure.
in the MOA
is intended
statutory
to diminish,
or regulatory
stant S
r
Army (Civil
Works)
Date
11)
11Sf
sJ

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6—89
ADMINISTRATIVE MATERIALS
19 ELR 35181
I. Purpose and Scope
The United States Department of the Army (Army) and the
United States Environmental Protection Agency (EPA) hereby estab-
lish the policy and procedures pursuant to which they will deter-
mine the geographic junsdictional scope of waters of the United
States for purposes of section 404 and the application of the ex-
emptions under section 404(f) of the Clean Water Act (CWA).
The Attorney General of the United States issued an opinion
on September 5, 1979, that the Administrator of EPA (Adminis-
trator) has the ultimate authority under the CWA to determine the
geographic jurisdictional scope of section 404 waters of the United
States and the application of the section 404(f) exemptions Pur-
suant to this authority and for purposes and effective administration
of the 404 program, this Memorandum of Agreement (MOA) sets
forth an appropriate allocation of responsibilities between the EPA
and the U S Army Corps of Engineers (Corps) to determine geo-
graphic jurisdiction of the section 404 program and the applica-
bility of the exemptions under section 404(f) of the CWA.
II. Policy
It shall be the policy of the Army and EPA for the Corps to
continue to perform the majonty of the geographic jurisdictional
determinations and determinations of the applicability of the exemp-
tions under section 404(f) as part of the Corps role in administer-
ing the section 404 regulatory program. It shall also be the policy
of the Army and EPA that the Corps shall fully implement EPA
guidance on determining the geographic extent of section 404 juris-
diction and applicability of the 404(f) exemptions.
Case-specific determinations made pursuant to the terms of this
MOA will be binding on the Government and represent the Govern-
ment’s position in any subsequent Federal action or litigation regard-
ing the case In making its determinations, the Corps will imple-
ment and adhere to the “Federal Manual for Identifying and
Delineating Jurisdictional Wetlands,” EPA guidance on isolated
waters, and other guidance, interpretations, and regulations issued
by EPA to clarify EPA positions on geographic jurisdiction and
exemptions. Al future programmatic guidance, interpretations, and
regulations on geographic jurisdiction, and exemptions shall be
developed by EPA with input from the Corps, however, EPA will
be considered the lead agency and will make the final decision if
the agencies disagree
!fl. DefiniUons
A. Special Case A special case is a circumstance where EPA
makes the final determination of the geographic jurisdictional scope
of waters of the United States for purposes of section 404
Special cases may be designated in generic or project-specific
situations where significant issues or technical difficulties are an-
ticipated or exist, concerning the determination of the geographic
jurisdictional scope of waters of the United States for purposes of
section 404 and where clarifying guidance is or is likely to be needed.
Generic special cases will be designated by easily identifiable political
or geographic subdivisions such as township, county, parish, state,
EPA region, or Corps division or district. EPA will ensure that
generic special cases are marked on maps or some other clear for-
mat and provided to the appropriate Distnct Engineer (DE).
B. Special 404(f) Matters A special 404(f) matter is a circum-
stance where EPA makes the final determination of the applica-
bility of exemptions under section 404(f) of the CWA
A special 404(f) matter may be designated in generic or project-
specific situations where significant issues or technical difficulties
are anticipated or exist, concerning the applicability of exemptions
under section 404(f), and where clarifying guidance is, or is likely,
to be needed Generic special 404(f) matters will be designated by
easily identifiable political or geographic subdivisions such as
township, county, parish, state, EPA region, or Corps division or
district and by specific 404(f) exemption (e g , 404(f)(l)(A)).
tarn a regional list of current designated special cases and special
404(f) matters within each region, including documentation, if ap-
propriate, that there are no current designated special cases or special
404(f) matters in the region The RA shall create an initial regional
list and transmit it to the appropriate DE within 30 days of the date
of the last signature on this MOA In order to be eligible for a
regional list, the designated special cases and special 404(f) matter
must be approved by the Adnurustrator. (NOTE Those geographic
areas designated as current special cases pursuant to the 1980
Memorandum of Understanding on Geographic Jurisdiction of the
Section 404 Program, may be incorporated into the initial ?egional
lists without additional approval by the Administrator based on
township, county, parish, state or other appropriate designation,
as described in paragraph HI. A. of this MOA but will no longer
be designated by forest cover type.)
B. Changes to the Regional Lists Changes to the regional lists
shall be proposed by the RA and approved by the Administrator
and may include additions to, amendments to, or deletions front
the regional lists. When the RA proposes an addition, amendment,
or deletion to the regional list, the RA shall forward the proposal
to EPA Headquarters for review and approval When the RA pro-
poses an addition or amendment in writing or by phone to the ap-
propriate Corps DE, the Corps will not make a final geographic
jurisdictional determination within the proposed special case area
for a period of ten working days from the date of the RA’s notifica-
tion. The Corps may proceed to make determinations in the pro-
posed special case area after the ten day period if it has not been
provided final notification of EPA Headquarters approval of the
RA’s proposed changes. Deletions to the regional list do not become
effective until a revised regional list, approved by EPA Head-
quarters, is provided to the appropriate DE
C. Project Reviews. The DE shall review section 404 preappli-
cation inqumes, permit applications, and other matters brought to
his attention, which involve the discharge of dredged or fill material
into waters of the United States to determine if a current designated
special case or special 404(f) matter is involved.
(1) Special Cases/Special 404(f) Matters
For those projects involving a current designated special case
or special 404(f) matter, the DE shall request that the RA make
the final determination of the geographic jurisdictional scope of
waters of the United States for purposes of section 404 or applica-
bility of the exemptions under section 404(f) The RA shall make
the final determination, subject to discretionary review by EPA
Headquarters, and transmit it to the DE, and to the applicant!
inquirer.
(2) Non-Special Cases/Non-Special 404(f) Matters
For those projects not involving a current designated special
case or special 404(f) matter, the DE shall make final determina-
tions and communicate those determinations without a requirement
for pnor consultauon with EPA.
D. Determination of Special Cases or Special 404(f) Matters.
When the special case or special 404(f) matter has been designated
on a project-specific basis, issuance of the final determination by
the RA will serve as guidance relevant to the specific facts of each
particular situation, and will terminate the special case or special
404(f) matter designation. When the special case or special 404(f)
matter has been designated on a generic basis, EPA Headquarters
will develop, in consultation with Army, relevant programmatic
guidance for determining the geographic jurisdictional scope of
waters of the United States for the purpose of section 404 or the
applicability of exemptions under section 404(f). Special cases and
special 404(f) matters designated on a genenc basis remain in ef-
fect until (1) a deletion from the regional list is proposed and proc-
essed according to paragraph IV-B of this MOA, or (2) EPA Head-
quarters issues programmatic guidance that addresses the relevant
issues and specifically deletes the special case or special 404(f) mat-
ter from the regional list(s), whichever occurs first.
Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning the Determination of the
Geographic Jurisdiction of the Section 404 Program and the Application of the
Exemptions Under Section 404(f) of the Clean Water Act
(Department of the Army/Environmental Protection Agency Jan 19, 1989)
IV. Procedures
A Regional Lists Each regional administrator (RA) shall main-

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19 ELR 35182
ENVIRONMENTAL LAW REPORTER
6-89
E Uncertainties Regarding Special Cases/Special 404(f) Mat-
ters Should any uncertainties arise in determining whether a par-
ticular action involves a current designated special case or special
404(f) matter, the DE shall consult with the RA Upon completion
of the consultation, the RA will make the final determination as
to whether the action involves’a current designated special case or
special 404(f) matter
- F Compliance Tracking In order to track the DE’s compliance
with EPA guidance, the DE shall make his files available for in-
spection by the RA at the district office, including field notes and
data sheets utilized in making final determinations as well any photo-
graphs of the site that may be available. Copies of final geographic
jurisdictional determinations will be provided to the R.A upon re-
quest at no cost to EPA unless the sample size exceeds 10 percent
of the number of determinations for the sample period. Copies in
excess of a 10 percent sample will be provided at EPA expense To
ensure that EPA is aware of determinations being made for which
notification is not forwarded through the public notice process, the
Corps will provide copies to EPA of all final determinations of no
geographic jurisdiction and all final determinations that an excep-
tion under Section 404(f) is applicable. Should EPA become aware
of any problem trends with the DE’s implementation of guidance,
EPA shall initiate interagency discussions to address the issue.
V. Related Actions
A. Enforcement Situations. For those investigations made pur-
suant to the 1989 Enforcement MOA between Army and EPA con-
cerning Federal enforcement of section 404 of the CWA, which in-
volve areas that are current designated special cases, the R.A shall
make the final determination of the geographic jurisdictional scope
of waters of the United States for purposes of section 404 The RA’s
determination is subject to discretionary review by EPA Head-
quarters, and will be binding regardless of which agency is subse-
quently designated lead enforcement agency pursuant to the 1989
Enforcement MOA. For those investigations not involving special
cases, the agencies will proceed in accordance with the provisions
of the 1989 Enforcement MOA.
For those investigations made pursuant to the 1989 Enforce-
ment MOA between Army and EPA concerning Federal enforce-
ment of section 404 of the CWA, which involve current designated
special 404(f) matters, the RA shall make the final determination
of the applicability of the exemptions under section 404(f). The RA
determination is subject to discretionary review by EPA Head-
quarters, and is binding regardless of which agency is subsequently
designated lead enforcement agency pursuant to the 1989 Enforce-
ment MOA. For those investigations not involving special 404(f)
matters, the agencies will proceed in accordance with the provisions
of the 1989 Enforcement MOA.
B. Advanced Identification EPA ma elect to make the final
determination of the geographic jurisdictional scope of waters of
the United States for purposes of section 404, as part of the ad
vaiiced identification of disposal sites under 40 CFR 230 80, sub-
ject to discretionary review by EPA Headquarters, and regardless
of whether the areas involved are current designated special cases,
unless the DE has already made a final geographic junsdictional
determination. Any de ermmations under this section shall be com-
pleted in accordance with paragraph IV of this MOA.
C. 404(c) Actions. EPA may elect to make the final determina-
tion of the geographic jurisdictional scope of waters of the United
States for purposes of section 404(c) of the CWA.
VL General Provisions
A. All final determinations must be in writing and signed by
either the DE or R.A. Final determination of’the DE or RA made
pursuant to this MOA or the 1980 Memorandum of Understanding
on Geographic Jurisdiction of the Section 404 Program, will be bind-
ing on the government and represent the Government’s position in
any subsequent Federal action or litigation concerning that final
determination.
B. The procedures and responsibilities of each agency specified
in this MOA may be delegated to appropriate subordinates consis-
tent with established agency procedure. Hedquarters procedures and
responsibilities specified in the MOA may only be delegated within
headquarters.
C. Nothing in this document is intended to diminish, modify,
or otherwise affect the statutory or regulatory authorities of either
agency.
D. This agreement shall take effect and supercede the April
23, 1980, Memorandum of Understanding on Geographic Junsdic-
non of the Section 404 Program on the 60th day after the date of
the last signature below and will continue in effect for five years,
unless extended, modified or revoked by agreement of both par-
ties, or revoked by either party alone upon six months written notice,
prior to that time.
Robert W. Page
Assistant Secretary of the Army (Civil Works)
January 19, 1989
Rebecca W. Hanmer
Acting Assistant Administrator for Water
U.S. Environmental Protection Agency
January 19, 1989

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MEMORANDUM
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN I d 1993
SUBJECF
FROM:
TO:
Effects of the Amendment to the Army/EPA Geographic Jurisdiction
Memorandum of Agreement on Wetland Delineations and Pending
Enforcement Actions
Robert FL Wayland, ilL Director
Office of Wetlands, Oceans and atersheds
Frederick F. Stiehi
Enforcement Couns,1’for Water Enforcement
Office of Enforcement
Water Management Division Directors
Regionsi, il,W,V,Vlll,IX X
Environmental Services Division Directors
Regions Ill, VI
Assistant Regional Administrator for Policy and
Management, Region V II
On January 4, 1993, the Assistant Administrator for Water and the Assistant
Secretary of the Army for Civil Works signed the “Amendment to the January 19, 1989,
Department of the Army/Environmental Protection Agency Memorandum of Agreement
Concerning the Determination of the Geographic Jurisdiction of the Section 404
Program and the Application of the Exemptions under Section 404(f) of the Clean
Water Act” (copy attached). Accordingly, you are hereby directed to begin using the
1987 Corps of Engineers Wetlands Delineation Manual in making wetland
determinations under the Clean Water Act, thereby achieving consistency with the Corps
of Engineers.
In addition, EPA is hereby adopting, on an interim basis, the Corps’
October 7, 1991, and March 6, 1992, guidance on applying the 1987 Manual (copies
attached). We invite your specific written comments on the Corps’ guidance in order to
determine what revisions, if any, will be necessary. Please provide your comments to
Greg Peck, Chief of the Wetlands Division’s Wetlands and Aquatic Resources
Regulatory Branch before January 27, 1993.
OFRC OF
WATER
Pnrit( on PP -.

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We anticipate that there will be questions regarding the effect of this amendment
on pending EPA enforcement actions. In that regard, in any EPA enforcement action
(judicial or administrative) that was pending on January 4, 1993, and where the 1989
Manual was used for the delineation, the following steps should be taken:
1) For judicial cases that have been referred for civil or criminal litigation, the
Wetlands Division, Office of Enforcement, and the Department of Justice should
be notified immediately for consultation and a case-by-case determination.
2) For administrative cases, the Region shall evaluate the jurisdictional status of
the property under the 1987 Manual and clearly document this evaluation in the
administrative record.
We look forward to working with you to minimize any potential disruptions that
may be associated with this change. Please feel free to call John Meagher, Director of
the Wetlands Division, if you have any questions.
Attachments
cc: Office of General Counsel
Regional Wetlands Coordinators
Office of Regional Counsel (Section 404 Attorneys)

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11-6
“Memorandum of Agreement: Among the Department of Agriculture, the
Environmental Protection Agency, the Department of the Interior, and the Department
of the Army; Concerning the Delineations of Wetlands for Purposes of Section 404 of
the Clean Water Act and subtitle B of the Food Security Act.” 1/6/94
Press Release: “New Agreement Among Four Federal Agencies Makes soil conservation
Service the Lead Agency for Wetlands on Agricultural Lands.” 1/6/94
Fact Sheet: Memorandum of Agreement for Wetland Delineations on Agricultural
Lands.”
Memorandum: “Questions and Answers related to the Implementation of the January
6, 1994 Interagency Memorandum of Agreement Concerning the Delineation of
Wetlands for Purposes of Section 404 of the Clean Water Act and Subtitle B of the Food
Security Act.” 3/16/94

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MEMORANDUM OF AGREEMENT
AMONG THE DEPARTMENT OF AGRICULTURE, THE ENVIRONMENTAL
PROTECTION AGENCY, THE DEPARTMENT OF THE INTERIOR, AND THE
DEPARTMENT OF THE ARMY
CONCERNING THE DELINEATION OF WETLANDS FOR
PURPOSES OF SECTION 404 OF THE CLEAN WATER ACT AND
SUBTiTLE B OF THE FOOD SECURITY ACT
I. BACKGROUND
The Departments of the Army, Agriculture, and the Interior, and the Environmental
Protection Agency (EPA) recognize fully that the protection of the Nation’s remaining
wetlands is an important objective that will be supported through the implementation of
the Wetland Conservation (Swampbuster) provision of the Food Security Act (FSA) and
Section 404 of the Clean Water Act (CWA). The agencies further recognize and value
the important contribution of agricultural producers to our society, our economy, and
our environment We are committed to ensuring that Federal wetlands programs are
administered in a manner that minimizes the impacts on affected landowners to the
fullest possible extent consistent with the important goal of protecting wetlands. We are
also committed to minimizing duplication and inconsistencies between Swampbuster and
the CWA Section 404 program. On August 24, 1993, the Administration announced a
comprehensive package of reforms that will improve both the protection of wetlands and
make wetlands programs more fair and flexible for landowners, including the Nation’s
agriculture producers. This Memorandum of Agreement (MOA) implements one of
over 40 components of the Administration’s Wetlands Plan.
II. PURPOSE AND APPLICABILITY
A. PURPOSE
The purpose of this MOA is to specify the manner in which wetland delineations
and certain other determinations of waters of the United States made by the U.S.
Department of Agriculture (USDA) under the FSA will be relied upon for
purposes of CWA Section 404. While this MOA will promote consistency
between CWA and FSA wetlands programs, it is not intended in any way to
diminish the protection of these important aquatic resources. In this regard, all
signatory agencies to this MOA will ensure that wetlands programs are
administered in a manner consistent with the objectives and requirements of
applicable laws, implementing regulations, and guidance.

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B. APPLICABILITY
1. The Administrator of EPA has the ultimate authority to determine the
geographic scope of waters of the United States subject to junsdiction
under the CWA, including the Section 404 regulatory program. Consistent
with a current MOA between EPA and the Department of the Army, the
Army Corps of Engineers (Corps) conducts jurisdictional delineations
associated with the day-to-day administration of the Section 404 program.
2. The Secretary of the USDA, acting through the Chief of the Soil
Conservation Service (SCS), has the ultimate authority to determine the
geographic scope of wetlands for FSA purposes and to make delineations
relative to the FSA, in consultation with the Department of the Interior,
Fish and Wildlife Service (FWS).
III. DEFINITION OF AGRICULTURAL LANDS
For the purposes of this MOA, the term “agricultural lands” means those lands
intensively used and managed for the production of food or fiber to the extent that the
natural vegetation has been removed and cannot be used to determine whether the area
meets applicable hydrophytic vegetation criteria in making a wetland delineation.
A. Areas that meet the above definition may include intensively used and managed
cropland, hayland, pasture land, orchards, vineyards, and areas which support
wetland crops (e.g., cranberries, taro, watercress, rice). For example, lands
intensively used and managed for pasture or hayland where the natural vegetation
has been removed and replaced with planted grasses or legumes such as Iyegrass,
bluegrass, or alfalfa, are considered agricultural lands for the purposes of this
MOA.
B. “Agricultural lands” do not include range lands, forest lands, wood lots, or tree
farms. Further, lands where the natural vegetation has not been removed, even
though that vegetation may be regularly grazed or mowed and collected as forage
or fodder (e.g., uncultivated meadows and prairies, salt hay), are not considered
agricultural lands for the purposes of this MOA.
Other definitions for the purposes of this MOA are listed below in Section VI.
IV. ALLOCATION OF RESPONSIBILITY
A. In accordance with the terms and procedures of this MOA, wetland delineations
made by SCS on agricultural lands, in consultation with FWS, will be accepted by
EPA and the Corps for the purposes of determining Section 404 wetland
jurisdiction. In addition, EPA and the Corps will accept SCS wetland delineations
USDA/EPA/DOl/Anny MOA Concerning the Delineation of Wethzn4 Page 2
for Clean Water Act/Section 404 and Food Security Act/Subtitle B

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on non-agricultural lands that are either narrow bands immediately adjacent to, or
small pockets interspersed among, agricultural lands. SCS is responsible for
making wetland delineations for agricultural lands whether or not the person who
owns, manages, or operates the land is a participant in USDA programs.
B. Lands owned or operated by a USDA program participant that are not
agricultural lands and for which a USDA program participant requests a wetland
delineation, will be delineated by SCS in coordination with the Corps, or EPA as
appropriate, and in consultation with FWS. Final wetland delineations conducted
by SCS pursuant to the requirements of this paragraph shall not be revised by
SCS except where an opportunity for coordination and consultation is provided to
the other signatory agencies.
C. SCS may conduct delineations of other waters for the purposes of Section 404 of
the CWA, such as lakes, ponds, and streams, in coordination with the Corps, or
EPA as appropriate, on lands on which SCS is otherwise engaged in wetland
delineations pursuant to paragraphs 1V.A or IV.B of this MOA. Delineations of
“other waters” will not be made until the interagency oversight team convened
pursuant to Section V.B.2 has agreed on appropriate local procedures and
guidance for making such delineations.
D. For agricultural lands, the signatoiy agencies will use the procedures for
delineating wetlands as described in the National Food Security Act Manual,
Third Edition (NFSAM). For areas that are not agricultural lands, SCS will use
the 1987 Corps Wetland Delineation Manual, with current national Corps
guidance, to make wetland delineations applicable t Section 404.
E. Delineations on “agricultural lands” must be performed by personnel who are
trained in the use of the NFSAM. Delineations on other lands and waters must
be performed by personnel who are trained in the use of the 1987 Corps Wetland
Delineation Manual. This MOA includes provisions for the appropriate
interagency delineation training below in Section V.E.
F. In the spirit of the agencies’ commitment to develop agreed upon methods for use
in making wetland delineations, subsequent revisions or amendments to the Corps
1987 manual or portions of the NFSAM affecting the wetland delineation
procedures upon which this agreement is based will require the concurrence of
the four signatory agencies.
G. A final written wetland delineation made by SCS pursuant to the terms of this
MOA will be adhered to by all the signatory agencies and will be effective for a
period of five years from the date the delineation is made final, unless new
information warrants revision of the delineation before the expiration date. Such
new information may include, for example, data on landscape changes caused by a
USDA/EPA/DOl/Army MOA Concernzng the Delineation of Wetlands Pagr 3
for Clean Water Act/Section 404 and Food Security Aa/Subtztle B

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major flood, or a landowner’s notification of intent to abandon agricultural use
and the return of wetland conditions on a prior converted cropland. In
accordance with Section 1222 of the FSA, SCS will update wetland delineations
on this five-year cycle. Circumstances under which SCS wetland delineations
made prior to the effective date of this agreement will be considered as final for
Section 404 purposes are addressed in Paragraph V.C.
H. Within the course of administering their Swampbuster responsibilities, SCS and
FWS will provide landowners/operators general written information (i.e.,
EPA/Corps fact sheets) regarding the CWA Section 404 program permit
requirements, general permits, and exemptions. The SCS and FWS will not,
however, provide opinions regarding the applicability of CWA Section 404 permit
requirements or exemptions.
USDA will maintain documentation of all final written SCS wetland delineations
and record the appropriate label and boundary information on an official wetland
delineation map. USDA will make this information available to the signatory
agencies upon request.
J. In pursuing enforcement activities, the signatory agencies will rely upon
delineations made by the lead agency, as clarified below, providing a single
Federal delineation for potential violations of Section 404 or Swampbuster.
Nothing in this MOA will diminish, modify, or otherwise affect existing EPA and
Corps enforcement authorities under the CWA and clarified in the 1989
“EPA/Army MOA Concerning Federal Enforcement for the Section 404 Program
of the Clean Water Act.” EPA, the Corps, and SCS may gather information
based on site visits or other means to provide additional evidentiary support for a
wetland delineation which is the subject of a potential or ongoing CWA Section
404 or Swampbuster enforcement action.
K. For those lands where SCS has not made a final written wetland delineation, and
where the Corps or EPA is pursuing a potential CWA violation, the lead agency
for the CWA enforcement action will conduct a jurisdictional delineation for the
purposes of Section 404 and such delineations will be used by SCS for
determining Swampbuster jurisdiction and potential Swampbuster violations. For
those lands where the Corps has not made a final written wetland delineation,
and where SCS is pursuing a potential Swampbuster violation, SCS will make a
final written wetland delineation consistent with Sections IV.A, IV.B, and IV.C of
this MOA and provide copies to the Corps and EPA. Such delineations will be
used by the Corps and EPA for the purpose of determining potential violations of
the CWA. In circumstances in which either the Corps or EPA is pursuing a
potential CWA violation on land that is subject to an ongoing SCS appeal, a
wetland delineation will be conducted by the Corps or EPA in consultation with
SCS and FWS.
USDA/EPA IDOl/Army MOA Concerning the Delineation of Wetland s Page 4
for Clean Water Act/Section 404 and Food Security Act/Subtitle B

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L. In making wetland delineations, the agencies recognize that discharges of dredged
or fill material that are not authorized under Section 404 cannot eliminate Section
404 jurisdiction, and that wetlands that were converted as a result of unauthorized
discharges remain subject to Section 404 regulation.
V. PROCEDURES
Accurate and consistent wetland delineations are critical to the success of this MOA.
For this reason, the signatory agencies will work cooperatively at the field level to:
1) achieve interagency concurrence on mapping conventions used by SCS for wetland
delineations on agricultural lands, 2) provide EPA and Corps programmatic review of
SCS delineations, and 3) certify wetland delineations in accordance with Section
1222(a)(2) of the FSA, as amended. The following sections describe the procedures that
will be followed to accomplish these objectives.
A. MAPPING CONVENTIONS
1. Each SCS State Conservationist will take the lead in convening
representatives of the Corps, EPA, FWS, and SCS to obtain the written
concurrence of each of the signatory agencies, within 120 calendar days of
the effective date of this MOA, on a set of mapping conventions for use in
making wetland delineations. Only mapping conventions concurred upon
by all signatory agencies will be used by SCS for wetland delineations.
2. If interagency consensus on mapping conventions is not reached within 120
days of the date of this MOA, the State Conservationist will refer
documentation of the unresolved issues to the Chief of SCS. The Chief of
SCS will immediately forward copies of the State Conservationist’s
documentation of unresolved issues to the Corps Director of Civil Works;
the EPA Director of the Office of Wetlands, Oceans, and Watersheds; and
the FWS Director. Immediately thereafter, the Chief of SCS or an
appropriate designee will lead necessary discussions to achieve interagency
concurrence on resolution of outstanding issues, and will forward
documentation of the resolution to the State Conservationist and the
appropriate Headquarters offices of the signatory agencies.
3. Once interagency concurrence on mapping conventions is obtained, such
mapping conventions will be used immediately in place of the earlier
mapping conventions.
4. Agreed-upon mapping conventions developed at the state level will be
documented and submitted, for each state, through the Chief of SCS to the
Headquarters of each of the signatory agencies. State-level agreements
will be reviewed by the Headquarters of the signatory agencies for the
purpose of ensuring national consistency.
USDA IEPA/DOl/Army MOA Concerning the Delineation of Wedand Page 5
for Clean Water Ac:/Sectwn 404 and Food Security Act/Subtitle B

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B. DELINEATION PROCESS REVIEW AND OVERSIGHT
This MOA emphasizes the need to ensure consistency in the manner in
which wetlands are identified for CWA and FSA purposes, and provides a
number of mechanisms to increase meaningful interagency coordination
and consultation in order for the agencies to work toward meeting this
goal. In this regard, the agencies believe it is critical that efforts for
achieving consistency be carefully monitored and evaluated. Consequently,
this MOA establishes a monitoring and review process that will be used to
provide for continuous improvement in the wetland delineation process
specified in this MOA.
2. EPA will lead the signatory agencies in establishing interagency oversight
teams at the state level to conduct periodic review of wetland delineations
conducted under the provisions of this MOA. These reviews will include
delineations done by SCS pursuant to Sections IV.A, IV.B, and J.V.C of
this MOA and delineations done by EPA or the Corps pursuant to Section
IV.K. of this MOA. These reviews also will include changes to wetland
delineations resulting from the SCS appeals process, as well as
disagreements regarding allocation of responsibility. These reviews will
occur, at a minimum, on a quarterly basis for the first year, on a semi-
annual basis for the second year, and annually thereafter. In addition, a
review will be initiated whenever one or more of the signatory agencies
believes a significant issue needs to be addressed. The purpose of each
review will be to evaluate the accuracy of an appropriate sample of
wetland delineations. When feasible, this will include actual field
verifications of wetland delineations. Should the interagency oversight
team identify issues regarding implementation of this MOA or wetland
delineations conducted under the provisions of this MOA, the team will
work to resolve those issues and reach agreement on any necessary
corrective actions. Each review, and any necessary corrective action, will
be documented in a report to be distributed to the signatory agencies’
appropriate field and Headquarters offices.
3. In situations in which the interagency oversight team identifies and reports
unresolved issues concerning wetland delineations conducted under the
provisions of this MOA, including changes to wetland delineations resulting
from the SCS appeals process, the Headquarters offices of the signatory
agencies will informally review the issue and work to reach agreement on
any necessary corrective actions. This informal process notwithstanding,
the EPA Regional Administrator or the Corps District Engineer may, at
any time, propose to designate a geographic area as a “special case”.
USDA IEPA/DOl/Anny MOA Concerning the Delzneatwn of Wetlands Page 6
for Clean Water Acr/Section 404 and Food Security Act/Subtitle B

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4. Similar to the terms of the current Memorandum of Agreement between
the Department of the Army and the EPA Concerning the Determination
of the Geographic Jurisdiction of the Section 404 Program and the
Application of the Exemptions under Section 404(f) of the CWA, the EPA
Regional Administrator or the Corps District Engineer may propose to
designate a geographic area, or a particular wetland type within a
designated geographic area, as a special case. A special case may be
designated only after the interagency oversight team (EPA, Corps, SCS,
and FWS) has reviewed the relevant issues and been unable to reach a
consensus on an appropriate resolution. Special cases will be designated
by an easily identifiable political or geographic subdivision, such as a
township, county, parish, state, EPA Region, or Corps division or district,
and will be marked on maps or using some other clear format and
provided to the appropriate EPA, Corps, FWS, and SCS field offices.
Proposed designations of special cases will not be effective until approved
by EPA or Corps Headquarters, as appropriate.
5. Upon proposing a special case, the EPA Regional Administrator or Corps
District Engineer, as appropriate, will notify the appropriate SCS State
Conservationist in writing. Following notification of the proposed
designation, SCS will not make wetland delineations for the purposes of
CWA jurisdiction within the proposed special case for a period of 20
working days from the date of the notification. SCS may proceed to make
wetland delineations for CWA purposes in the proposed.special case after
the 20-day period if the SCS State Conservationist has not been notified by
the EPA Regional Administrator or Corps District Engineer of approval of
the proposed special case designation by EPA Headquarters or the Corps
Director of Civil Works, as appropriate.
6. Following approval of the proposed special case, the Corps, or EPA as
appropriate, will make final CWA wetland delineations in the special case
area, rather than SCS. In addition, the referring field office (i.e., either
the EPA Regional Administrator or Corps District Engineer) will develop
draft guidance relevant to the specific issues raised by the special case and
forward the draft guidance to its Headquarters office. The Headquarters
office of the agency which designated the special case will develop final
guidance after consulting with the signatoly agencies’ Headquarters offices.
EPA concurrence will be required for final guidance for any special case
designated by the Corps. Special cases remain in effect until final guidance
is issued by the Headquarters office of the agency which designated the
special case or the designation is withdrawn by the EPA Regional
Administrator or Corps District Engineer, as appropriate.
JSDAJEPA/DOIIAnny MOA Concerning the Delineation of Wetlands Page 7
r Clean Water Act/Section 404 and Food Securuy Act/Subtitle B

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C. RELIANCE ON PREVIOUS SCS WETLAND DELINEA11ONS FOR CWA
PURPOSES
Section 1222 of the FSA, as amended by the Food Agriculture.
Conservation and Trade Act, provides that SCS will certify SCS wetland
delineations made prior to November 28, 1990. The intent of this process
is to ensure the accuracy of wetland delineations conducted prior to
November 28, 1990, for the purposes of the FSA. This certification
process also will provide a useful basis for establishing reliance on wetland
delineations for CWA purposes. All certifications done after the effective
date of this MOA that are done using mapping conventions will use the
agreed-upon mapping conventions pursuant to Section V.A of this MOA.
2. Written SCS wetland delineations for lands identified in Section IV.Aof
this MOA conducted prior to the effective date of this MOA will be used
for purposes of establishing CWA jurisdiction, subject to the provisions of
Section V.C.3 below. If such SCS wetland delineations are subsequently
modified or revised through updated certification, these modifications or
revisions will supersede the previous delineations for purposes of
establishing CWA jurisdiction. Written SCS wetland delineations for lands
identified in Sections IV.B and \ ‘ pf this MOA conducted prior to the
effective date of this MOA will require coordination with the Corps, or
EPA as appropriate, before being used for purposes of determining CWA
jurisdiction.
3. As part of the certification effort, SCS will establish priorities to certify
SCS wetland delineations. In addition to responding to requests from
individual landowners who feel their original wetland determinations were
made in error, SCS will give priority to certifying those wetland
delineations where at least two of the four signatory agencies represented
on the interagency oversight team convened pursuant to Section V.B.2 of
this MOA agree that SCS wetland delineations in a particular area, or a
generic class of SCS wetland delineations in a particular area, raise issues
regarding their accuracy based on current guidance. These priority areas
will be identified only after mapping conventions are agreed upon pursuant
to Section V.A of this MOA. Identification of these high priority
certification needs shall be made at the level of the SCS State
Conservationist, FWS Regional Director, EPA Regional Administrator,
and the Corps District Engineer. Following identification of these high
priority certification needs, the SCS State Conservationist will immediately
notify the affected landowner(s), by letter, that the relevant SCS wetland
delineations have been identified as a high priority for being certified
under Section 1222 of the FSA. In addition, the notification will inform
the landowner that while previous wetland delineations remain valid for
USDA/EPA IDOl/Army MOA Concerning the Delineation of Wetlands Page 8
for Clean Water Act/Section 404 and Food Security Act/Subtztle B

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purposes of the FSA until certification or certification update is completed,
the landowner will need to contact the Corps before proceeding with
discharges of dredged or fill material. This communication by the
landowner will enable the Corps to review the wetland delineation to
establish whether it can be used for purposes of CWA jurisdiction. The
SCS State Conservationist will initiate, within 30 calendar days of
landowner notification, corrective measures to resolve the wetland
delineation accuracy problem.
D. APPEALS
Landowners for whom SCS makes wetland delineations for either Swampbuster or
Section 404 will be afforded the opportunity to appeal such wetland delineations
through the SCS appeals process. In circumstances where an appeal is made and
the State Conservationist is considering a change in the original delineation, the
State Conservationist will notify the Corps District Engineer and the EPA
Regional Administrator to provide the opportunity for their participation and
input on the appeal. FWS also will be consulted consistent with the requirements
of current regulations. The Corps and EPA reserve the right, on a case-by-case
basis, to determine that a revised delineation resulting from an appeal is not valid
for purposes of Section 404 jurisdiction.
E. TRAINING
1. SCS, in addition to FWS and EPA, will continue to participate in the
interagency wetland delineation training sponsored by the Corps, which is
based on the most current manual used to delineate wetlands for purposes
of Section 404. Completion of this training will be a prerequisite for field
staff of all signatoiy agencies who delineate wetlands on non-agricultural
lands using the 1987 Corps Wetland Delineation Manual.
2. The interagency wetland delineation training will address agency wetland
delineation responsibilities as defined by this MOA, including SCS NFSAM
wetland delineation procedures.
3. Field offices of the signatoiy agencies are encouraged to provide
supplemental interagency wetland delineation training (i.e., in addition to
that required in paragraph IV.E), as necessary, to prepare SCS field staff
for making Section 404 wetland delineations. For training on the use of
the 1987 Corps Wetland Delineation Manual, such supplemental training
will rely on the training materials used for the Corps delineation training
program and will provide an equivalent level of instruction.
USDA/EPA /DOI/Anny MOA Concerning the Delineation of Wethmdj Page 9
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VI. DEFINITIONS
A. “Coordination” means that SCS will contact the Corps, or EPA as appropriate,
and provide an opportunity for review, comment, and approval of the findings of
SCS prior to making a final delineation. The Corps, or EPA as appropriate, will
review the proposed delineation and respond to SCS regarding its acceptability
for CWA Section 404 purposes Within 45 days of receipt of all necessaiy
information. SCS will not issue a final delineation until agreement is reached
between SCS and the Corps or EPA, as appropriate.
B. “Consultation” means that SCS, consistent with current provisions of the FSA., will
provide FWS opportunity for full participation in the action being taken and for
timely review and comment on the findings of SCS prior to a final wetland
delineation pursuant to the requirements of the FSA.
C. A “wetland delineation” is any determination of the presence of wetlands and
their boundaries.
D. A “special case” for the purposes of this MOA refers to those geographic areas or
wetland types where the Corps or EPA will make final CWA wetland
delineations.
E. “Signatory agencies” means the EPA and the Departments of Army (acting
through the Corps), Agriculture (acting through SCS), and Interior (acting
through FWS).
F. “USDA program participant” means individual landowners/operators eligible to
receive USDA program benefits covered under Title XLI of the Food Security Act
of 1985, as amended by the Food, Agriculture, Conservation and Trade Act of
1990.
VII. GENERAL
A. The policy and procedures contained within this MOA do not create any rights,
either substantive or procedural, enforceable by any party regarding an
enforcement action brought by the United States. Deviation or variance from the
administrative procedures included in this MOA will not constitute a defense for
violators or others concerned with any Section 404 enforcement action.
B. Nothing in this MOA is intended to diminish, modify, or otherwise affect
statutory or regulatory authorities of any of the signatory agencies. All formal
guidance interpreting this MOA and background materials upon which this MOA
is based will be issued jointly by the agencies.
USDA/EPA/DOl/Anny MOA Concerning the Delineation of Wetlandi Page 10
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C. Nothing in this MOA will be construed as indicating a financial commitment by
SCS, the Corps, EPA. or FWS for the expenditure of funds except as authorized
in specific appropriations.
D. This MOA will take effect on the date of the last signature below and will
continue in effect until modified or revoked by agreement of all signatory
agencies, or revoked by any of the signatory agencies alone upon 90 days written
notice. Modifications to this MOA may be made by mutual agreement and
Headquarters level approval by all the signatory agencies. Such modifications will
take effect upon signature of the modified document by all the signatory agencies.
E. The signatory agencies will refer delineation requests to the appropriate agency
pursuant to this MOA.
Ja . Lyons
tant Secreta or Natural
Resources and vironment
U.S. Department of Agriculture
Robert Perciasepe
Assistant Administrator for Water
U.S. Environmental Protection Agency
__ :
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PRESS RELEASE
P:ess Contacs: EPA Sean McEiheny (202) 260-1387
USDA - Tom Amanuee (202) 720-i623
Army - George Haiford (202) 272-1301
Interior - Craig Rieben (202) 203-5634
FOR IMMEDIATE RELEASE
THURSDAY, Januarv 6, 1994
?‘ ETV AGREEME AMONG FOUR FEDERAL AGENCIES MAKES SOtL
CONSERVATION SERVICE THE LEAD AGENCY FOR WETLANDS ON
AG RICIJLTtJRAL LANDS
WASHThIGTON — Four federal agencies with wetlands protection
responsibilities, in a new memorandum of agreement signed tothy, recognize the U.S.
Depar ent of Agriculture’s Soil Conservauon Service as the lead federal agency for
deiineanng wetlands on agricultural lands. This action will provide mor certainty for
farmers and provide more effective coordination among federal agencies with wetlands
protecuon responsibilities.
The memorandum of agTeement among the Departments of Agriculture, Interior,
and Arm’, and the Environmental Proteonon Agency (EPA) implements one of many
recommendations regarding federal wetlands policies included in the Clinton
Administration’s August 24, 1993, fair, fle ble and effective approach to mana ng
America’s wetlands.
Under today’s agreement, farmers will be able to re’y on Soil Conservation
Service wetland maps for determining the extent of wetlands under both the Farm Bill
(also l own as the Swampbuster program) and Section 404 of the Clean Water Act
Previously, farmers participating in U.S. farm programs received a wetland map from the
Soil Conservation Service for Swampbuster purposes only. If that farmer needed a
Section .tQ4 permit for work in wetlands, the Corps of En neers or the EPA required an
additional wetland delineaton. The agreement eHniinates this duplication of effort and
gives the farmer one wetland determination from the federal government Farmers can
now rely on a single wetland determination by the Soil Conservation Service for
Swampbus-ter and Section 404 purposes. The Section 404 regulatory program will
continue to be administered by the Corps of Engineers and the EPA.
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sz Secretari of c i re for Yar ral Resources nd o enr
R. L;oos, saic. ‘Cousisze t wita the Adniimsu-anon’s c er d e anc. policy, this
agreement is good for farmers and for the environment. It simplifies the process of
iden ±iing wetlands for farmers and will more e ciently inform them of federal wetland
conservauo programs. We look for vard to wanting closely and cooperatively with the
other agencies to make this agreement woriC
tntenicr Assistant Secretary for Fish and Wildlife and Parks, George T. Frampto ,
Jr., said, ‘T js agreeent represents a common sense a proach to administering
wetlands programs affecting our Nation’s farmers. We are minirnirfrig duplication of
effort and recogni ng the relative excertise of the federal agencies, while improving the
accuracy and consistency of wetland detex-minations on agricultural land& It’s good for
farmers and for wetland ”
EPA Assistant Adminjs -ator for Water, Robert Perciasepe. said, “This agreement
is based on one of the most important themes of this Adminis ation’s environmental
program: interagency par erships. Through interagency cooperation at the field level,
we will all be able to provide better service to farmers while more effectively ensuring
protection of the Nation’s critical wetlands resources.”
G. Edward Dickey, the Acting Assistant Secretary of the Ai-my for Civil Works,
said, ‘The interagency agreement should result in an improvement in the accuracy of
wetland delineations on agricultural lands through the use of standard methods and
better ai.n.ing. ’
Tiiis agreement reflects the ccmmi ent of the Adm.inisu-ation to’ implement it’s
wetland policies through a coordinated process focused on eliminating inconsistencies
between agency policies, minimiting duplication of efforts, and the accurate delineation
of wetlands for use by all agencies.
Copies of the MOA may be obtained by calling the EPA Wetlands Hotline at
(800) 832-7828.
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2

FACT SHEET
MEMOR4. ’ DUM OF AGREEMENT
FOR WETLAND DEUNEATIONS ON AGR1CL LTU AL L ’4DS
• The De ar ents of Agttcuitur , Army, Interior, and the EPA have entered into
a new Memorandum of Agreement (MOA) which ensures that the anon’s
Earnters con rely on Sod C servancu Service (SCS) wetlands iunsdictlonal
ae:ernunanons on agricuin.irni anas for purposes ot Sec non -t.04 ot the Clean
Water Ac: (CWA) and the Conservanon Title of the Food Security Ac: (FSA).
Bac: -tzrouud
• The U.S. Deparrments of Azriculture, Army, [ ntenor, and the Environmental
Prozeezon Agency (EPA) are committed to minimi ng dupLicatlon and
Lnconsistenc:es beween Food Sec-uritv Ac: and Ciean Water Act wetlands
rozrams and to ensuring that Fecetal we’Jand.s programs are admmistered in a
manner that minimizes the jnacs on affected landowners to the extent possible
consistent with the goals of protecong wetlands.
• These princ:ples are highlighted m the Adminisn atlon s Augi st 1993
comprehensive wetlands policy and in an August 1993 interagency statement of
prmci ies concerning federal wetlands programs on agricultural lands.
Pu rn ose
• The basic purpose of the MOA is to have the Army Corps of Engineers (Corns)
and EPA accept written SCS wetland determinatlons on agricultural lands as the
bnal government position on the extent of CWA jurisdiction.
• Previously, SCS wetlands determinations were used for FSA purposes only. if
there were work in wetlands proposed that would require a CWA Section 404
permit, the Corns or EPA would make an additional wetlands determinanou for
CWA purposes.
• SCS will have the federal lead for wetland delineations on azricultural lands
whether or not the landowner/operator is a pardciuant in Depar ent of
Agriculture (USDA) programs. SCS will make the wetland delineations
consistent with FSA procedures, including consulting with the Fish and Wildlife
Service.
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L,c r.ds affected by the MOA
• For the purposes of the MOA, the term ‘agricultural lands’ means those lands
intensively used and managed for the production of food or fiber tothe e tent
that the natural vegetation has been removed and cannot be used to determine
whether the area meets acpiicable hydrophytic vegetation criteria in making a
wetland delineation.
• Areas that meet this definition of agricultural lands may include intensively used
and managed cropland, hayland, pasture land, orchards, vineyards, and areas
which support wetland crops.
“Agricultural lands’ do not include range lands, forest lands, wood lots, or tree
farms. Further, lands where the natural vegetation has not been removed, even
though that vegetation may be regularly grazed or mowed and collected as forage
or fodder are not considered agricultural lands for the purposes of the MOA.
Delineations on non -agricultural lands
• EPA and the Corps will accept SCS wetland delineations an non-agricultural
lands that occur as small inclusions within agricultural lands, and on lakes, ponds,
and steams that occur on agricultural lands.
• SCS will have the federal lead for wetland delineations on non-agricultural lands
where the delineation is requested by the landowner/operator wh is a USDA
program parncipant. SCS will give the Corps or EPA the opportunity to review
these deLineations before making the delineation finaL
Quality assurance provisions
• The MOA indudes provisions to ensure that agency personnel who conduct
wetland delineations are properly trained, that standard, agreed-upon methods
(i.e., mapping conventions) are used in making such determinations, and that the
Corps, EPA 4 and FWS have the ability to monitor SCS determinations on a
prograrrfllatc basis.
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c c- e’ : c- :c r:a cn
• The MOA iaces a s ong en nasjs on n:era enc’; co-ornjnanon at the eid 1ev. e:.
• At the sz te level, the agenc:es must reach a reement on =acrinz Ccnven:c :
hich SCS uses to deLineate ‘ zet.iand.s an agricultural lands., and reg-uiar v r- e’ a
SZPIC of SCS ‘ etland Lineancos,
• The MOA also includes provisions :o ensure that ‘ .etland deLineauons done by
SCS in the pasz are approcriate for CWA.
Use of SCS delineanons done in the pa st
• The MOA also includes provisions to ensure that erland deLineanons done by
SCS in the past are of appropriate quality for C VA use.
Ucdate of SCS wetland deLineations
• SCS will ucdate wetland deLineations on a ve-vear cycle.
CWA Section i0. L eaforcement.. permit ng, and aopeais
• Although, with this MOA farmers can now rely on SCS wetland determinations
on agricultural lands for both the FSA and CWA programs, the CWA Sec oti 40.1.
permit program and Sectlon - 04. enforcement will continue to b administered by
the Corns and EPA.
• The MOA recognizes the SCS a peaLs process for wetland deiineadans.
Landowners for whom SCS makes wetland delineations for either Swampbuszer or
Sectlon 404 will be a orded the opportun ity to appeal such delineatlons through
the SCS appeals process.
Copies of the MOA may be obtained from EPA’s Wetlands HotLine at (800) 832-7823.
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4 L p 1t
MAP ‘. :::t
MEMORANDUM
SUBJECT:
FROM:
Questions and Answers related to the Implementation of the January 6,
1994 Interagency Memorandum of Agreement Concerning the Delineation
of Wetlands for Purposes of Section 404 of the Clean Water Act and
Subtitle B of the Food Security Act
Wayland, Ill
Office of Wetlands, Oceans, and Watersheds
Environmental Protection Agency
,i1 /j
Michael L. Davis #“ ‘
Assistant for Regulatory Affairs
Office of the Assistant Secretary
of the Army (Civil Works)
Paul Johnson, Chief
Soil Conservation Servi _\.
Department of Agriculture
Michael J. Spea/
Assistant Director fo co1ägic 1 ervices
Fish and Wildlife Service
Department of the Interior
I )
TO: EPA Regional Administrators, Corps of Engineers Division and District
Engineers, SCS State Conservationists, and FWS Regional Directors
Attached is a list of questions and answers on the subject Memorandum of Agreement
(MOA). This document was developed among the signatory agencies to clarify issues
and facilitate consistent implementation of the MOA.
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QUESTIONS and ANSWERS
on the
AGRICULTURE MOA
DEFINITION OF AGRICULTURAL LANDS
l.Q. Why doesn’t the MOA’s definition of agricultural land
include rangeland and forestland?
l.A. The intent of the MOA is to minimize redundancy and
duplication between FSA and CWA wetland delineation
activities. Because rangeland and forestland wetland
delineations have typically been conducted by the Corps,
without overlapping delineations conducted by SCS, the
signatory agencies saw no need to include rangeland or
forestland in the definition. The rangeland and forestland
exclusion creates a practical, identifiable distinction that
can be used to identify areas where the different
delineation manuals will be used and where the agencies will
continue their traditional lead roles for wetland
delineation.
The MOA signatory agencies recognized SCS’ traditional role
in delineating wetlands in consultation with FWS on
intensively used and managed agricultural lands for
Swampbuster. Refer to Question 22 for more information
regarding the role of FWS. SCS personnel are trained and
experienced in making these predominantly off-site
delineations on agricultural lands using the National Food
Security Act Manual (NFSAN) procedures. A significant
increase in resources would be required if the definition of
agricultural lands was expanded to include rangeland and
forestland. It was determined, therefore, that SCS would
maintain its traditional role in identifying wetlands on
intensively used and managed lands in consultation with FWS,
and have the Corps and EPA maintain their traditional roles
on other less—intensively used lands, such as rangeland and
forestland, for the purposes of Section 404 of the CWA.
In addition, the field staff need a straightforward means of
determining the areas where their agency has the lead for
determining wetlands jurisdiction under the MOA.- Rangeland
and forestland typically are predominated by natural
vegetation that can be relied upon as an indicator of
whether an area has hydrophytic vegetation; as such, the
1987 Manual must be used to determine jurisdiction.
Conversely, cropland and .other intensively used agricultural
lands typically do not support a predominance of natural
vegetation, therefore providing no reliable indicator of
whether an area has hydrophytic vegetation. As the
procedures for delineating wetlands under these two
‘ RecycIedlRecyd.b o
& Pflnted on p .r that
at 4 t 50% rs y ad f
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( T
cofldjtj0 S are distinct (i.e., the 1987 Manual and the FSA
Manual, respectively), field staff must be trained and
experienced in applying the appropriate techniques.
2.Q. Do tree farms that have the natural vegetation
replaced by planted trees fit within the agricultural land
definition?
2.A. No. While tree farms typically replace native plant
communities with selected tree species, thus establishing
atypical plant communities, on-site delineation procedures
contained in the 87 Manual are appropriate for the
delineation of such wetlands. The off-site procedures used
on agricultural lands were not developed for delineating
wetlands in heavily managed timber stands, particularly
since mapping conventions generally are not sensitive enough
to detect differences between wetlands and non—wetlands in
timber production areas. Such sensitivity, required for
accurate delineations, is generally provided through on-site
techniqUeS, which are described in the 1987 Manual.
3.Q. Is there a time—frame associated with the term
j ensivelyused”?
3.A. No, the term is independent of the time or duration of
the land management or use. The term “intensively used”
refers to the degree of management or use of lands such that
the natural vegetation has been removed and cannot be used
to determine whether the area meets applicable hydrophytic
vegetation criteria in making a wetland delineation.
4.Q. For the purposes of jfferentiatiflg between
agricultural land and non-agricultural land, are blueberries
a wetland crop?
4.A. Blueberries, when grown or harvested under natural
conditions and in the absence of intensive land management,
are not considered a wetland crop, but rather natural
vegetation. When blueberries are grown under intensively
managed conditions, such as an orchard, such lands may be
considered agricultural lands. If the individual owner or
manager is a USDA program participant, as defined in the
MOA, and blueberries are part of a larger farm operation,
then SCS, in coordination with the Corps, would have the
lead for delineating wetlands on the land, including the
blueberry area.
5.Q. If land is set aside from crop production under a USDA
set-aside program, and wetland conditions (including wetland
vegetation) return, will the land be considered agricultural
land or non_agricultural land for the purposes of the MOA?
5.A. It should be considered agricultural land, unless it
has been abandoned, as defined by the NFSAN. Cropland set
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I
aside from crop production under a USDA set—aside program
will be considered agricultural land for the purposes of the
MOA if it was agricultural land when it entered the set-
aside status.
6.Q. Are lands intensively used and managed for growing
turf and/or sod considered agricultural lands under the MOA?
6.A. Yes, to the extent that such areas typically are
intensively used and managed such that the vegetation cannot
be relied upon to indicate whether or not the area would
support hydrophYtiC vegetation.
7.Q. Are there any size limitations associated with “narrow
bands” and “small pockets” of non-agricultural lands
interspersed among agricultural lands?
7.A. No, the MOA provides the flexibility for the agencies
to determine the extent of these areas based on agreements
reached between the agencies in each State. Nevertheless,
it is the intent of the signatory agencies to limit these
areas to -truly narrow bands and small pockets.
ALLOCATION OF RESPONSIBILITY -
8.Q. Whom do landowners contact if they are seeking a
wetland delineation Ofl non-agricultural land for purposes of
Section 404?
8.A. The Corps unless the landowner is a USDA program
participant. SCS will make the delineation in consultation
with FWS and in coordination with the Corps or EPA if the
person is a USDA program participant.
9.Q. Who are USDA program participants?
9.A. USDA program participants are those individual
landowners or operators who are eligible to receive USDA
program benefits covered under Title XII of the Food
Security Act of 1985, as amended by the Food, Agriculture,
Conservation and Trade Act of 1990 (FACTA). Questions
regarding an individual’s eligibility should be directed to
the appropriate local office of the SCS.
10.Q. Does the MOA supersede or rescind agreements entered
into previously by any of the signatory agencies, such as
local agreements between EPA and FWS regarding Section 404
enforcement or the 1984 Wetlands Technical Assistance MOU
between SCS and Farmers Home AdminiStratiOfl?
10.A. No. Other than giving SCS the lead for wetland
delineation Ofl agricultural lands for the purposes of
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Swainpbuster and Section 404, the MOA does not affect
previous policy, procedures or agreements established
between any of the signatory agencies.
ll.Q: If a non-agricultural activity is proposed that would
cross agricultural and non-agricultural land, should the
project proponent go to the SCS or the Corps for a wetland
delineation?
hA: If a single linear project, such as a utility
corridor or highway is proposed that would cross both
agricultural and non-agricultural lands, the Corps would
have the lead for the wetland delineation for the project.
The Corps would consult with SCS and rely on previous
wetland delineations made by SCS in accordance with the NOA.
12 ,Q. How will SCS delineate ‘ t other waters” for Section 404
purposes?
12.A. Delineations of “other waters” that are regulated
pursuant to Section 404 of the CWA, may be made by SCS only
after the interagency oversight team, convened pursuant to
Section V.3.2. of the MOA, has agreed on appropriate local
procedures and guidance for the delineation of “other
waters” by scs. In many instances, properties on which SCS
is identifying wetlands also contain other waters of the
United States, such as rivers and lakes. These waters are
not wetlands, and may not be identified by SCS mapping
conventions. These waters, while not regulated by FSA, are
subject to Section 404 jurisdiction. Thus, in order to
streamline the federal process of identifying all waters
that may be subject to regulation, the MOA provides for the
delineation of “other waters” by Scs in coordination with
the Corps or EPA.
13.Q. Has the MOA made SCS responsible for implementing
Section 404 on all agricultural lands?
13.A. No, the MOA only allocates the responsibility for the
delineation of wetlands on agricultural lands to SCS, in
consultation with FWS. The Corps and EPA will continue to
regulate activities that involve the discharge of dredged or
fill, material into waters of the U.S., including wetlands,
pursuant to Section 404 of the Clean Water Act.
14.Q. What role will SCS have in Clean Water Act
enforcement?
14.A. If within the course of administering their
responsibilities, SCS personnel observe activities that may
require Clean Water Act authorization, they will advise the
local Corps District. Any ensuing CWA enforcement will be
handled by the Corps or EPA consistent with the Army and EPA
Enforcement MOA dated January 19, 1989.
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(42
In pursuing enforcement activities, the MOA signatory
agencies will rely upon delineations made by the lead
enforcement agency, providing a single Federal delineation
for potential violations of Section 404 and/or Swampbuster.
To avoid potential conflicts among the agencies regarding a
delineation for an enforcement case, Part IV.K. of the MOA
includes provisions for appropriately identifying and
recognizing the lead enforcement agency.
15.Q. Under what circumstances will SCS accept Corps or EPA
delineations for Swampbuster?
l5.A. SCS will accept Corps or EPA wetland delineations for
purposes of determining Swampbuster jurisdiction in -
situations where a delineation has already been made by the
Corps or EPA in conjunction with a potential CWA violation,
and where SCS has not made a final delineation. SCS will
use such delineations in the appeals process, if any.
l6.Q. Why are delineations made by SCS on non—agricultural
lands for program participants’done so in coordination with
the Corps or EPA?
l6.A. At this time, the agencies believe that proper
coordination is necessary to ensure that there is
consistency between SCS wetland delineations Ofl non-
agricultural lands and those made by the Corps and EPA.
Typically, delineations on non—agricultural lands require
the use of on—site procedures, and SCS is not as experienced
as are the Corps and EPA in the application of the 1987
Manual for such purposes. By working with more experienced
delineators in the Corps and EPA, SCS field personnel will
have the opportunity to become proficient in the use of the
1987 Manual and on-site delineations, thereby ensuring the
accuracy and consistency of wetland delineations among the
agencies.
l7.Q. Why is there a 45-day time frame required for
coordination, and how does it relate to existing Section 404
program time frames?
17.A. Section VI.A. defines the term “coordination” as the
Corps or EPA review, comment and approval of SCS wetland
delineations. The 45—day coordination period begins for the
Corps or EPA with the date of receipt of all pertinent
information from SCS. This time frame is not related to the
Corps or EPA deadlines for processing permit applications or
any other aspect of the Section 404 program. The agencies
- believe the 45-day time frame is a reasonable period of time
for the Corps or EPA to review the delineation
documentation, conduct an on-site field inspection, if
necessary, and to provide SCS with a response as to the
acceptability of the delineation for Section 404 purposes.
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FurthermOre, if a 404 permit application is involved, the
Corps will generally respond within 30 days.
18.Q. Why is SCS required to coordinate with the Corps or
EPA for wetland delineations on large tracts of non-
agricultural lands, but not for wetland delineations on
narrow bands and small pockets of non_agricultural lands
immediately adjacent to or interspersed among agricultural
lands.
18.A. SCS has traditionally delineated small pockets and
narrow bands of wetlands that occur in agricultural lands as
part of the wetland mapping and inventory effort,
particularly since those types of wetland areas have a high
potential for conversion to agriculture. In contrast, the
delineation of large areas of non-agricultural lands is not
amenable to the application of the off-site delineation
procedures commonly used by SCS, and instead would typically
require the use of on-site techniques as contained in the
1987 Manual. Thus, in order to expand SCS delineation on
non-agricultural lands beyond small, incidental inclusions,
a significant increase in SCS training and field resources
would be required.
19.Q. How does the MOA affect the Section 404 permit
process?
19.A. The Section 404 permit process (e.g., permit
application, public notice, comment period, etc.) are not
affected by the MOA. As discussed in Question 13, the MOA
only allocates the responsibility of delineation of wetlands
on agricultural lands to SCS, not the implementation of the
regulatory program.
20.Q. Will the MOA affect EPA’S authority under Section
404 (C)?
20.A. No. The MOA has no effect on EPA’s authority under
Section 404(c).
21.Q. Is scs responsible for providing landowners with
guidance on the Section 404 program?
2l.A. Technical assistance provided by SCS to landowners on
the Section 404 program shall be limited to general,
published material relating to the Section 404 program as
provided by the Corps or EPA for this purpose. The Corps
and EPA remain the primary point of contact for specific
guidance on the regulatory requirements of the Section 404
program. SCS will direct landowners to the Corps or EPA for
such information, particularly if the landowner is proposing
a project that may involve a discharge of dredged or fill
material in a wetland area or other waters of the U.S.
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1 -
22.Q. Has the role of FWS changed as a result of the MOA7
22.A. No. SCS is required by FSA to consult with FWS on
wetland issues involving Swampbuster. With regard to the
Section 404 program, FWS has the opportunity to review and
comment on all proposed individual permit activities through
the public notice process. FWS will continue its USDA
technical assistance role during the implementation of
SwamnpbUster, as well as comment on proposed activities under
review by the Corps.
23.Q. How does the MOA affect State and local wetlands
programs?
23.A. The MOA creates no new, explicit policies binding
upon State or local agencies. Nevertheless, certain state
and local government agencies currently rely upon wetland
delineations conducted for the purposes of Section 404 in
the implementation of their own programs, and those agencies
should recognize that SCS will now conduct some portion of
those delineations as per the provisions of the MOA.
24.Q. In states that have assumed the Section 404 program,
what agency will be responsible for making wetland
delineations on agricultural land?
24.A. In states that have assumed the Section 404 program,
the state will make the delineations on agricultural lands
for the purposes of Section 404 only in the waters in which
the state has assumed the Section 404 program. In
categories of waters for which the State has not assumed the
program, the MOA applies.
DELINEATION PROCEDURES
25.Q. What are the differences between the wetland criteria
and procedures to be used on agricultural lands (i.e., the
National Food Security Act Manual) and those to be used on
non-agricultural lands (i.e., the Corps 1987 Manual), and
what is the practical implication of those differences?
25.A. The two manuals differ slightly in the wetland
hydrology and wetland vegetation criteria. The agencies
have worked together to minimize the inconsistencies between
the two manuals, and the slight differences between the
criteria in the two manuals should have no practical effect.
It should be emphasized that under the provisions of Section
IV of the MOA, the two manuals will not both be used for any
single wetland area. The NFSAM will be used to delineate
wetlands on agricultural lands and the 1987 Manual will be
used on non-agricultural lands.
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Most scs delineations have been and will continue to be done
on cropland using the NFSAM. The critical criteria in the
NFSAM for cropped wetlands are in the definitions of prior
converted cropland and farmed wetland. To be delineated as
farmed wetland and subject to both Swampbuster and CWA
Section 404, a cropland area must be inundated by ponding or
flooding during the growing season for at least 15
consecutive days or a number of consecutive days greater
than or equal to 10% of the growing season in most years,
whichever is less. For cropped playas, potholes and
pocosins, ponding for at least 7 consecutive days or
saturation for at least 14 consecutive days during the
growing season in most years is required. The NFSAM
recognizes a number of data sources that can be used to
determine whether or not these criteria are met, including
aerial photographs, climate data, and site-related
hydrologic data. The NFSAM procedures for on-site
delineations of agricultural lands are similar to those
found in the 1987 Manual for natural wetlands, and include
hydrology indicators, soils indicators and remotely sensed
data.
For non-agricultural lands, the 1987 Manual and supplemental
guidance on wetland hydrology criterion requires that an
area be ponded, flooded, or saturated to the surface during
the growing season in most years for a number of consecutive
days equivalent to at least 5% of the growing season. The
1987 Manual includes a number of field indicators for use in
determining whether this criterion is met, with an emphasis
on on—site observations.
26.Q. What manual will be used for on-site wetland
delineations on agricultural lands and non-agricultural
lands?
26.A. The 3rd edition of the NFSAN will be used for
conducting on-site and off-site delineations of agricultural
lands. For on and off—site delineations of non—agricultural
lands, the 1987 Manual will be used. As discussed in
Question 52, training in the NFSAM and the 1987 Manual is
required in order to conduct on-site delineations on
agricultural land, and non-agricultural land, respectively.
27.Q. Under the provisions of Paragraph IV. G. of the MOA,
a final written delineation made by SCS will be adhered to
by all the signatory agencies for five years, unless new
information warrants revision of the delineation before the
expiration date. What constitutes “new information”?
27.A. The MOA gives two examples of the kind of new
information that could warrant revision of a delineation
before its expiration date: data on landscape changes
caused by a major flood; or a landowner’s notification of
intent to abandon agricultural use associated with the
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return of wetland conditions on a prior converted cropland.
The MOA also provides flexibility for consideration of other
types of new information that would warrant such revision of
a delineation.
28.Q. Does the MOA require the SCS field office personnel
to go on-site before wetland delineations are made final and
used by the Corps or EPA for Section 404 purposeS?
28.A. It is dependent upon the degree to which site-
specific delineation precision is required. The use of of f-
site mapping conventions will likely continue to be the most
common method for delineating wetlands on agricultural
lands. The wetland mapping conventions, which interpret a
combination of remotely sensed data, such as low—altitude
aerial photography, soil survey maps, and Fish and Wildlife
Service National Wetland Inventory maps, along with the
processes in the MOA for interagency review and oversight,
are intended to ensure that off-site delineations made by
SCS are of the appropriate accuracy for use in the Section
404 program.
If detailed, site-specific information is needed to
precisely delineate a wetland boundary, a field delineation
by SCS is required. The NFSAN contains specific technical
guidance on the application of on-site delineation
procedures, and advocates on-site delineations wherever of f-
site procedures are deemed inadequate to accurately
delineate wetlands.
29.Q. Can landowners hire private consultants to make
wetland delineations of agricultural land?
29.A. Individuals routinely hire consultants to conduct
delineations for Section 404 purposeS, and such delineations
are submitted to the Corps or EPA for review or approval.
similarly, SCS will review delineations on agricultural
lands performed by private consultants on behalf of
landowners. These delineations will be carefully reviewed
on an individual basis, and a determination will be made by
SCS as to the acceptability of the delineations for FSA and
Section 404 purpOSeS.
30.Q. If a landowner obtains a wetland delineation from a
private consultant, to whom should the landowner. submit the
delineation for approval?
30.A. The agencies will process the landowner’s request for
approval of a consultant’s delineation in accordance with
the MOA in the same manner as a landowner’s request for a
delineation will be processed. For example, SCS will have
the lead for approval of consultant delineations Ofl
agricultural lands and SCS’S decision will be recognized by
the Corps and EPA for the Section 404 program.
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I’ ,,
3l.Q. What is the landowner’s responsibility in regard to
the expiration of the delineation?
31.A. Upon the expiration of the existing delineation,
landowners should contact the agency that conducted the
delineation, particularly if they intend to alter the
wetland area. At that time, SCS will conduct a new
delineation. In addition, SCS intends to update the
delineations every five years, and will notify landowners of
the new delineations.
MAPPING CONVENTIONS
32.Q. What are wetland mapping conventions?
32.A. Mapping conventions are state—specific procedures to
interpret and correlate off-site and remotely sensed data to
long—term hydrologic conditions. In areas where the natural
vegetation has been removed and where hydrology may have
been modified, off-site techniques may be necessary to
correctly elucidate long-term wetland conditions. Thus,
mapping conventions are generally applicable to repeatedly
disturbed areas, such as crop fields. Mapping conventions
may vary slightly by state or region in response to regional
differences in wetland characteristics and the availability
of off-site data. The NFSAN contains guidance for use in
developing these conventions.
33.Q. Under the MOA, will new mapping conventions be
developed for every state?
33.A. Not necessarily. The MOA requires the concurrence of
the signatory agencies on the mapping conventions used to
delineate wetlands on agricultural lands in the future.
Previously, SCS worked with the FWS and State Technical
Committees to develop mapping conventions; the other
signatory agencies were rarely involved. In many states,
the interagency oversight teams may find that previously
developed mapping conventions are acceptable without
modification; in other states, mapping conventions may
require refinement. By obtaining concurrence of all four
signatory agencies on mapping conventions, the agencies
ensure that the best off-site procedures will be used fcr
delineating wetlands subject to both Swampbuster and Section
404.
34.Q. What is the relationship between the interagency
mapping convention review and approval process and the
certification process?
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34.A. Once mapping conventions are agreed to by the
agencies, an evaluation of the accuracy of delineations
conducted by SCS prior to the effective date of the MOA will
be conducted by the interagency oversight team as part of
the certification process. If, during this review, two of
the four signatory agencies agree that SCS wetland
delineations in a certain area, or a generic class of
wetlands in a particular area, are inaccurate, those
delineations will be given high priority for certification.
For those certifications done after the effective date of
the MOA that require the use of mapping conventions, the
agreed—upon mapping conventions resulting from the
interagency review process will be used.
35.Q. What is the process if the agencies cannot agree on
mapping conventions within the 120 day time-frame?
35.A. If unresolved issues prevent agreement on the mapping
conventions at the state level, and all attempts to reach
agreement between the agencies have been exhausted, such
unresolved issues will be elevated to the headquarters
offices of the signatory agencies for resolution.
DELINEATION PROCESS REVIEW AND OVERSIGHT
36.Q. What will the role of the Corps and EPA be in SCS
wetlands delineations on agricultural lands?
36.A. The MOA provides specific opportunities for Corps and
EPA involvement in SCS wetland delineations on agricultural
lands. This will primarily occur through the interagency
concurrence on mapping conventions, the wetland delineation
certification process, and the EPA and Corps programmatic
review of SCS delineations. These functions are designed to
achieve interagency consistency in wetland delineations on a
programmatic basis, thereby avoiding the difficulties
inherent in case-by case dispute resolution.
37.Q. If the Corps or EPA exercises the option to declare a
“special case” in a specific geographic area, what will be
the effect on the timeliness with which landowners obtain
wetland delineations for the purposes of CWA Section 404?
37.A. If an area is designated a “special case” under the
MOA, the SCS cannot make the wetland delineation for Section
404 until final guidance addressing the concerns raised in
the special case is issued by the Corps or EPA. During that
interim period and within the special case area, the Corps
would strive to prioritize the delineation of those sites
for which activities regulated pursuant to Section 404 were
proposed over the delineations of sites for which no 404
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activity was proposed. In addition, as is common practice
in the Section 404 program, project proponents could employ
the services of a qualified consultant to perform the
delineation during the interim period and subrrLit the
delineation directly to the Corps for review.
38.Q. For the purposes of the first—year interagency
quarterly review of SCS wetland delineations, when will the
first year begin?
38.A. A 120 day time frame has been established for the
interagency review and concurrence to mapping conventions,
which will begin once Part 513 of the FSAN 3rd edition is
issued. The “first year” will begin subsequent to this 120
day period as SCS may then begin making off-site wetland
delineations for the purposes of Section 404 using these
mapping Conventions.
RELIANCE ON PREVIOUS SCS WETLAND DELINEATIONS FOR CWA
PURPOSES
39.Q. How will the new priority certification process
change SCS’s wetland delineation certification process?
39.A. The process by which SCS will conduct and prioritize
wetland certifications is established in Part V.C. of the
MOA. The certification process remains an important tool by
which SCS ensures the accuracy of its wetland delineations,
and is required by FSA for all wetland delineations made
prior to 11/28/90. Because these delineations, as well as
more recent ones, may be relied upon for the purposes of
Section 404, it is necessary for their accuracy to be
reviewed by an interagency oversight team. The interagency
oversight team will determine the technical acceptability of
mapping conventions used to make delineations prior to
11/28/90, and the degree of accuracy in which those
conventions were applied, to determine where to prioritize
certification efforts. This process of prioritization
differs only slightly from that mandated by FSA in that the
signatory agencies, rather than SCS alone, may identify
delineations in need of re-evaluation.
Because of the nature of off—site delineations, SCS has
always anticipated that some inaccurate wetland delineations
have been made that will require correction through the
certification process. While allowing the signatory
agencies to jointly identify such errors may increase the
number of priority certification areas, the agencies jointly
believe that the process will improve the overall validity
and reliability of SCS delineations, which in turn benefits
the landowner and the wetland resource.
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( 10
4o.Q. When are previous scS wetland delineations acceptable
for Section 404 purposes?
40.A. The MOA established a certification process for those
scs delineations made prior to the effective date of the MOA
to determine their use for Section 404. Based on the
findings of the certification process, existing SCS wetland
delineations on agricultural lands and those small pockets
of non-agricultural lands interspersed among agricultural
lands may be relied upon for establishing CWA jurisdiction.
However, previously made SCS delineations may not apply to
Section 404 in certain areas where problems with mapping
conventions or the application of mapping conventions have
been identified by the interagency oversight team.
Specifically, where two of the four signatory agencies agree
that SCS wetland delineations in a certain area, or a
generic class of wetlands in a particular area, are
inaccurate, those delineations will be given high priority
for certification by SCS. Until the high priority
certification is completed, and the requisite corrective
measures are taken, wetland delineations in that area may
not be relied upon for Section 404 purposes. In the
interim, the Corps will provide delineations in that area
for 404 purposes. -
41.Q. When will SCS begin making delineations for Section
404 purposes on agricultural lands?
41.A. The MOA provides that only mapping conventions
concurred upon by all signatory agencies will be used by SCS
for wetland delineations, and establishes the process for
mapping convention development, review and approval in Part
V.A. of the MOA. In addition, the MOA provides that
delineations on agricultural lands must be performed by
personnel who are trained in the use of the NFSAN, and
delineations on non-agricultural lands must be performed by
personnel who are trained in the use of the 1987 Manual.
The specific provisions for training are contained in Part
V.E. of the MOA and discussed in Question 50.
When the requirements of the MOA relative to these
delineation issues are met by SCS, SCS will .begin the
delineation of wetlands on agricultural lands for the
purposes of determining Section 404 jurisdiction.
42.Q. How will the signatory agencies in a state know if
the accuracy of previous SCS delineations on agricultural
lands are suitable for Section 404 purposes?
42.A. Through the review of mapping conventions, or based
on previous experience with SCS delineations, the agencies
will be aware of accuracy problems with previous SCS wetland
delineations on agricultural lands. In other instances,
interagency oversight procedures will be used to check the
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1 ft
accuracy of previous delineations, with an emphasis on field
verification. If accuracy problems are found through these
oversight procedures, recertification priorities can be
adjusted accordingly, and if necessary, Section 404
applicability of previous delineations may be suspended by
EPA or the Corps, as appropriate, until recertified.
For example, SCS procedures previously allowed the
application of scope and effect drainage calculations for
delineation purposes on wetlands that were manipulated
through installation of drainage systems in the past, but
still exhibit wetland conditions. Because of changes in the
3rd edition of the NFSAM that disallow this practice, maps
produced using this practice will most likely need to be
revised.
43.Q. What is the process for updating certified wetland
maps?
43.A. The 1990 Farm Bill requires that certified SCS
wetland maps be periodically updated. SCS will conduct such
updates on a five—year cycle using the agreed-upon mapping
conventions developed by the interagency oversight team.
Updated maps will be subject to interagency review and
oversight as detailed in Part V.B. of the MOA. Such
updating occurs subsequent to the certification of wetland
maps, the process for which is detailed in Part V.C. and
discussed in Question 39.
44.Q. Why are SCS delineations on agricultural lands valid
for the purposes of FSA and Section 404 for five years,
while Corps delineations for 404 purposes are valid for as
little as three years?
44.A. By establishing a five-year update cycle for SCS
delineations, the MOA is reconciling the current differences
between the effective period of Section 404 delineations and
FSA delineations, which are three to five years and ten
years, respectively. To further close the gap between the
two agencies, the Corps intends to reissue Regulatory
Guidance Letter 90-6 to provide that Corps districts
generally make written delineations valid for 5 years.
45.Q. In cases where SCS delineations in a geographic area
are being reevaluated under the high priority certification
process, will all landowners in the geographic areas be
notified by letter as to the status of their delineations?
45.A. No. Only persons who are USDA program participants
will be notified of the high priority certification status
of their existing wetland delineation. It is impracticable
and unnecessary to identify all non-USDA participants in the
area as such persons will not typically be aware of the SCS
mapping efforts.
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/7 .
46.Q. Through the certification process, can PC’S be
changed to FW’s, arid vice versa?
46.A. Yes. The purpose of the certification process is to
identify and correct inaccuracies in original wetland
delineations that have relied heavily on off-site
procedures. The agencies recognize that large—scale, of f-
site delineation efforts can result in incorrect wetland
delineations, and that some areas designated PC will, upon
closer examination, be changed to FW, and vice versa.
Furthermore, the procedures in the NFSAN have been revised
such that wetland delineations in crop fields will rely more
heavily on the exhibition of long-term wetland conditions
rather than the scope and effect of existing drainage
systems if maintained to maximum efficiency.
47.Q. In many states, SCS has prepared wetland inventory
maps, using mapping conventions, that identify “potential
wetland areas”. Since landowners have not had the
opportunity to appeal these wetland inventory maps, these
potential wetland areas are not considered final wetland
delineations by SCS. How will these wetland inventory maps
and the potential wetland areas be treated in the
certification process?
47.A. Wetland inventory maps depicting wetlands on
agricultural lands will be subject to the same interagency
review for accuracy in the certification process as would
other previously made SCS wetland delineations.
APPEALS
48.Q. What is the current scs appeals process?
48.A. The 3rd Edition of the NFSAN will retain the 4-step
appeals process currently utilized by SCS. This process
includes the reconsideration of wetland delineations at the
Field Office level, and subsequent appeals to the Area
Conservationist, the State Conservationist, and the Chief of
scs. Appeals at the Area and State level typically involve
a field review of the wetland area in question, while the
Chief’s level is restricted to an administrative review of
the appeal record. The Chief’s level is the final level of
the FSA appeals process.
- 49.Q. Why does the MOA contain a provision allowing the
Corps or EPA to not accept an scs wetland delineation which
resulted from an appeal?
49.A. It is possible for SCS to make an appropriate
delineation, consistent with the MOA and acceptable for
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Section 404 purposes, which is subsequently overturned as a
result of an appeal. At that time, the Corps and EPA may
find that the new delineation, which resulted from the
appeal, is no longer representative of CWA jurisdiction, and
therefore unacceptable for statutory reasons.
TR.AINI NG
50.Q. How will delineation training for all federal
agencies be handled?
50.A. Section V.E. of the MOA provides that field staff of
all signatory agencies who delineate wetlands on non-
agricultural lands must complete interagency wetland
delineation training on the 1987 Manual through headquarters
approved interagency training courses. Delineations on
agricultural lands must be performed by personnel who are
trained in the use of the NFSAM.
Due to the great demand by agency field personnel for
training, it is anticipated that training courses in the
1987 Manual will be added to those currently available
through the Corps training program. These courses will be
developed as equivalent, interagency courses in the 1987
Manual and will be taught by interagency instructors. As
the development of these additional courses is in
preliminary stages, details as to location, cost and timing
cannot be provided at this time.
Because the NFSAM procedures for conducting on-site wetland
delineations on agricultural lands rely heavily upon the
1987 Manual, SCS fieH staff conducting any on—site
delineations on agricultural lands must also receive the
1987 Manual training prior to conducting such delineations.
The NFSAN delineation procedures shall also be taught during
the interagency delineation training to ensure all field
personnel are trained in the technical procedures for of f-
site delineations, mapping convention development, etc. SCS
is currently working with the other agencies to plan for
this and other similar training needed by SCS field staff.
Through this approach, SCS anticipates training a core group
of wetland delineation specialists to implement the MOA.
The number and location of these specialists will depend
primarily on the relative wetland delineation workload for a
given state or geographic area. These trained specialists
will subsequently serve on interagency oversight teams and
wetland mapping teams, as well as conduct on-site
delineations. The products o these specialists, such as
county wetland maps, may be relied upon by other SCS staff
in conducting day-to-day FSA responsibilities.
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, 74 -
5]..Q. Do SCS, EPA and FWS delineators need to be
“certified” through the Corps Wetland delineation
Certification Program to delineate wetlands?
5l.A. As with the Corps, SCS, EPA and FWS delineators do
not need to be certified to delineate wetlands. However,
all federal agency staff must receive the training currently
provided through headquarters approved interagency training
course prior to delineating wetlands for the 404 program.
This training is considered equivalent to the certification
training required of non-governmental delineators.
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11-7
“Memorandum of Agreement Between the Environmental Protection Agency and the
Department of the Army” 8/11/92
“Memorandum of Agreement Between the Department of Commerce and the
Department of the Army.” 8/11/92
“Memorandum of Agreement Between the Department of the Interior and the
Department of the Army.” 12/21/92
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DEPARTMENT OF THE ARMY
U S Arr’y Coroi of Ertgr eeri
WASNINGTON. D C 20314-1000
ATTENTION OF C. _
44
CECW-OR
MEIORANDUN FOR ALL MA 4 JOR SUBORDINATE COZ tANDS, DISTRICT COMIIANDS
SUBJECT: Section 404(q) Memorandum of Agreement (NOA)
1. The White House established priorities for the initiatives
included in the President’s Wetland Plan issued 9 August 1991.
One of the top priorities was to streamline the Regulatory
process by revising the Section 404(q) MOA’s with the
Environmental Protection Agency (EPA), the Department of Commerce
(National Marine Fisheries Service) and the Department of
Interior (Fish and Wildlife Service).
2. The Assistant Secretary of the Army for Civil Works (ASA(CW))
has signed Section 404(q) MOA’s with EPA and Commerce (copy
enclosed). We expect to complete and forward to the field the
Interior MOA very soon. Each MOA is effective as of the date of
the last signature. However, because of unavoidable delays in
implementation, the ASA(CW) has determined that the grandfather
provision contained in the last sentence of Part I, paragraph 9
will be based on September 8, 1992, rather than the last
signature date of each MOA (i.e., the 15 day period ends on
September 23, 1992).
3. The intent of the NOA’s is to provide for the Corps, as the
decision—maker, to reach timely permit decisions in an efficient
manner while giving full consideration to resource agency views.
Local coordination procedures that are developed must focus on
these principles. The MOA’s also provide a mechanism for
resolving policy issue disagreements and in certain cases allow
the resource agencies to request elevation of an Army Corps of
Engineers decision for review by higher authority in the Corps or
ASA(CW). The 1985 MOA’s resulted in lengthy and unreasonable
delays for applicants where a resource agency had initiated the
404(q) elevation process. The revised MOA’s are intended to
minimize such delays by providing that the 404(q) elevation
process will only be initiated (i.e., letter signed by the
Regional Administrator/Director in Paragraph IV.3(b)) in cases
where there are substantial and unacceptable impacts to aquatic
resources of nàtional importance.
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CECW-OR
STJEJECT: Section 404(q) Memorandum of Agreement (MOA)
4. The 2.992 MOA’s have several advantages over the 1985 MOA’s in
that:
a. For clarity, the MQA’s are divided into four distinct
parts: Part I — Backgrou.nd, Part II — Coordination Procedures,
Part III — Elevation of Policy Issues and Part IV — Elevation of
Individual Permit Decisions.
b. The elevation process for policy issues and permit cases
are separate and distinct. The policy issue process can be
initiated by agency staff, while the elevation of specific cases
can only be initiated by a letter signed by the resource agency
Regional Administrator/Director.
c. The Corps, in addition to the resource agencies, can
elevate generic issues (Part III, Paragraph 2) using the
procedures in Part III. This includes abuse of the Part IV
elevation process.
d. Part IV contains procedures for case specific elevation
which must involve substantial and unacceptable impacts to
aquatic resources of national importance. Aquatic resources of
national importance are a subset of special aquatic sites and
other waters of the United States. We intend that this term wi].].
be more completely defined-through administration of the
Regulatory Program under the MOA’s. Although case specific
elevation is included, the process is very efficient.
e. Final action on a permit will proceed while any policy or
procedural issue is elevated for resolution pursuant to Part III.
However, for a case specific elevation, the district engineer’s
final action is held in abeyance pending headquarter’s level
review pursuant to Part IV.
5. We believe that the enclosed MOA’s will substantially reduce
unnecessary delays in the Corps Regulatory Program and further
clarify that the Corps is the decisionmaker, while maintaining
positive and professional relationships with the Federal resource
agencies. You should ensure that the intent to minimize delays
2
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CECW-OR
SUBJECT: Section 404(q) Memorandum of Agreement (NOA)
and reduce the riu ther of cases subject to initiation of
the elevati3rl process is realized. If you believe this is not
occurring, you should elevate that as an issue (see paragraph
4(c) above).
FOR THE CO ’fl’ ANDER:
En ci
as Briga ier General (P), USA
Director of Civil Works
: 3
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(€0
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( f
E--’ “ -- WAS)IINC7QN. C 2C 14 1
0
A EN1 0M
cECW-0R
M O?..ANDtJM FOR ALL MAJOR S 3ORDINATE CO ANDS AND DISTRICT CD 2 A DS
S J’BJZCT: Section 404(q) Meinorar.du. of Agreement (MCA) with the
Department of the Interior (DCI)
1. The Assistant Secretary of the Army for Civil Works (ASA(CW))
has signed the Section 404(q) ) OA with DCI. The MOA, at Part I,
paragraph 9, has an effective date of 21 December 1992. However,
the grandfather provision contained in the last sentence of
Part I, paragraph 9 falls during the holiday season. Therefore,
the ASA(CW) has determined that the Fish and Wildlife Service (FWS)
Regional Directors have until 15 January 1993 to indicate which
individual permit cases will be governed under Part IV. The FWS
Regional Directors identify such cases by sending the District
Engineers the letter required in Part IV, paragraph 3(b). This
letter must contain the written justification required by Part IV,
paragraph 3(b) for each and every case which DCI would like
cons .dered under the new MOA. A simple list of permit cases which
DCI wishes to retain under the new MOA is not acceptable.
Furthermore, the 15 January 1993 deadline cannot be extended.
2. This MOA is essentially identical to the Department of Commerce
MOA except that the penultimate sentence of Pa±t IV, paragraph 1
has been deleted and Part I, paragraph 8 contains a unilateral
revocation provision of 30 calendar days. I have also enclosed my
Memorandum of 3 Se tember 1992, concerning the Environmental
Protection Agency and Department of Commerce MOA’s, which contains
comments that are also pertinent to this MOA.
FOR THE CO? AND :
Ends
as 1 (P), SA
Director of Civil Works
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MEMORANDUM OF AGREEMENT BETWEEN THE
ENVIRONMENTAL PROTECTION AGENCY AND
THE DEPARTMENT OF THE ARMY
1. Authority:
2. Purpose:
3. Applicability:
4. General Rules:
5. Organization:
Section 404(q) of the Clean Water Act, 33 U.S.C. 1344( a ).
Establish policies and procedures to implement Section 404(q) of the
Clean Water Act to “minimize, to the maximum extent practicable,
duplication, needless paperwork arid delays in the issuance of
permits.”
This agreement shall apply to Regulatory authorities under: a)
Section 10 of the Rivers and Harbors Act of 1899; b) Section 404 of
the Clean Water Act; and c) Section 103 of the Marine Protection,
Research and Sanctuaries Act.
Policy and procedures for the Department of the Army Regulatory
Program are established in 33 CFR Parts 320 through 330, and 40
CFR Part 230.
This Memorandum of Agreement MOA) is subdivided into four
distinct parts. The procedures for each part are specific to that part
and do not necessarily relate to other parts. For example, different
signature levels are established for Parts II, LU, and IV.
PART I - BACKGROIJI D
1. The Army Corps of Engineers is solely responsible for making final permit decisions
pursuant to Section 10, Section 404(a), and Section 103, including final determinations
of compliance with the Corps permit regulations, the Section 404(b)(1) Guidelines, and
Section 7(a)(2) of the Endangered Species Act. As such, the Corps will act as the project
manager for the evaluation of all permit applications. As the project manager, the Corps
is responsible for requesting and evaluating information concerning all permit
applications. The Corps will obtain and utilize this information in a manner that moves,
as rapidly as practical, the regulatory process towards a final permit decision. The Corps
Page 1
Clean Water Act Section 404(q) Memorandum of Agreement Between
The Environmental Protection Agency and The Department c/the Array
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01
will not evaluate applications as a project opponent or advocate — but instead will
maintain an objective evaluation, fully considering all relevant factors. The Corps will
fully consider EPA’s comments when determining compliance with the National
Environmental Policy Act, the 404(b)(1) Guidelines, and other relevant statutes,
regulations, and policies. The Corps will also fully consider the EPA’s views when
determining whether to issue the permit, to issue the permit with conditions and/or
mitigation, or to deny the permit.
2. It is recognized that the EPA has an important role in the Department of the Army
Regulatory Program under the Clean Water Act, National Environmental Policy Act, and
other relevant statutes. When providing comments, only substantive, project-related
information (within EPA’s area of expertise and authority) on the impacts of activities
being evaluated by the Corps and appropriate and practicable measures to mitigate
adverse impacts will be submitted. Pursuant to its authority under Section 404(b)(l) of
the Clean Water Act, the EPA may provide comments to the Corps identifying its views
regarding compliance with the Section 404(b)(l) Guidelines. The comments will be
submitted within the time frames established in this agreement and applicable regulations.
3. National or regional issues relating to resources, policy, procedures, and regulation
interpretation, can be elevated by either agency to their respective Washington
Headquarters for resolution as prescribed in Part III - ELEVATION OF POLICY
ISSUES. Individual permit decisions will not be delayed during the policy issue elevation
process. Elevation of issues related to specific individual permit cases will be limited to
those cases that involve aquatic resources of national importance. Procedures for
elevation of such specific cases are provided in PART IV - ELEVATION OF
INDIVIDUAL PERMIT DECISIONS.
4. For projects of other Federal agencies and Federally assisted projects for which a
Federal agency takes responsibility for environmental analysis and documentation, Army
will accept, where appropriate and legally permissible, the environmental documentation
and decisions of those agencies.
5. This agreement does not diminish either Army’s authority to decide whether a
particular individual permit should be granted, including determining whether the project
is in compliance with the Section 404(b)(1) Guidelines, or the Administrator’s authority
under Section 404(c) of the Clean Water Act.
Clean Water Act Section 404(q) Memorandum of Agreement Between Page 2
The Environmental Protection Agency and The Depaz ment of the Army
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6. The officials identified in this MOA cannot delegate their responsibilities unless
specifically provided for in this MOA.
7. Days referred to in this MOA are calendar days. If the end of the specified time
period falls on a weekend or holiday, the last calendar day will be the first business day
following the weekend or holiday. The end of the specified time period shall mean the
close of the business day on the last day of the specified time period.
8. This agreement is effective immediately upon the date of the last signature and will
continue in effect until modified or revoked by agreement of both parties, or revoked by
either party alone upon six months written notice.
9. The Memorandum of Agreement between the Administrator of the Environmental
Protection Agency and the Secretary of the Army on Section 404(q) of the Clean Water
Act dated November 12, 1985, is terminated. Those permit applications which have been
elevated to the Assistant Secretary of the Army for Civil Works (ASA(CW)) under the
November 12, 1985, MOA shall be processed according to its terms. Those permit
applications for which Notices of Intent to Issue have been sent by the District Engineer
in accordance with paragraph 7.b. of the November 12, 1985, MOA shall be governed
by that MOA. All other permit applications shall be governed by this agreement. For
permit applications where the basic or extended comment period has closed before the
signature date of this MOA the Regional Administrator has 15 calendar days from the
date of the last signature below to indicate which individual permit cases will be governed
under Part IV by sending the District Engineer the letter required in Part IV, paragraph
3(b).
PART II - COORDINATION PROCEDURES
1. Purpose: The purpose of Part H is to provide and encourage communication and full
consideration of each agencies’ views concerning proposed projects within the resource
limits of each agency and the time constraints of the regulatory process.
2. District Engineers and the Regional Administrators are encouraged to develop, within
six months of the date of this MOA, written procedures to ensure effective interagency
coordination and to discuss issues, expedite comments, foster strong professional
partnerships and cooperative working relationships. These professional partnerships will
be based on EPA prp.viding substantive, project specific comments and the Corps giving
Clean WaLer Act Section 404(q) Memorandum of Agreement Between Page 3
The Environmental Protection Agency and The DeparDrnent of the Army
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full consideration to EPA’s recommendations as the Corps makes its determination of
compliance with the Section 404(b)(l) Guidelines and the decision on the permit
application. The procedures will encourage, to the extent appropriate:
a. interagency pre-application consultation with prospective applicants;
b. interagency site visits;
c. interagency meeting(s) with applicants;
d. cooperation in acquiring and conveying site specific information needed by
either agency to fulfill its responsibilities;
e. consistent with the time frames setforth in this MOA, an informal process
for the timely resolution of issues at the field level to ensure that the permit
evaluation proceeds as rapidly as practical.
3. The Regional Administrator will inform the District Engineer, in writing, of the EPA
officials who are authorized to prpvide official EPA comments, including, where
appropriate, by category of activity or geographic area. All official EPA comments will
be signed by either the Regional Administrator or the designated official or an individual
acting for the Regional Administrator or acting for the designated EPA official. Two
officials will be designated in EPA Region X to provide for special circumstances in
Alaska. Comments signed by any of the above mentioned officials will be considered
EPA’s response in accordance with Part II of this MOA. Notwithstanding the above,
certain actions described in Part IV require the actual signature of the Regional
Administrator or Acting Regional Administrator.
4. The Corps will ensure the timely receipt (within 2-3 days from the date of issuance)
of public notices by EPA. EPA comments will be submitted in writing during the basic
comment period specified in the public notice. To the maximum extent practical, EPA
will immediately provide the Corps project manager with a faxed copy of its signed
comments. Where the basic comment period is less than 30 calendar days and the
situation is not an emergency, the District Engineer (or designee) shall, upon written or
electronically transmitted request of an official authorized to provide official EPA
comments, extend the comment period to 30 calendar days. An extension beyond 30
calendar days from the date of the public notice, must be requested in writing by the
Regional Administrator or designee. The written request must be received three calendar
days prior to the end of the basic comment period and must demonstrate the reason for
the extension (e.g., a joint coordination meeting occurs near the end of the comment
period and EPA needs additional time to prepare substantive comments). The District
Engineer or his desi nee will respond, in writing, within three calendar days of receipt
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of the request letter. If the District Engineer or his designee denies the request for
extension within three calendar days prior to the end of the basic comment period, the
EPA will have five calendar days from the receipt of the denial letter to submit final. EPA
comments. The maximum comment period, including extensiofl, will not exceed 60
calendar days, unless sought by the applicant.
5. Consistent with the procedures in Part IV, at the conclusion of the comment period,
the Corps will proceed to final action on the permit application. The Corps will consider
all comments submitted by EPA pursuant to Part IV, paragraphs 3(a) and 3(b).
6. The Corps may, in certain cases, request additional comments from or discuss issues
relevant to the project with EPA after the close of the comment period to either clarify
matters or obtain information relevant to the permit decision.
7. Consistent with Part IV, if the District Engineer’s decision is to issue the permit over
the objections of the EPA Regional Administrator or to issue the permit without
conditions recommended by the EPA Regional Administrator, the District Engineer will
send a copy of the decision document to the EPA commenting official.
PART In - ELEVATION OF POLICY ISSUES
1. Purpose: The purpose of Part III is to provide procedures for policy issue
coordination and resolution.
2. If either agency considers that the nature of an action or series of actions raises
concerns regarding the application of existing policy or procedure, or procedural failures
in agency coordination, the District or Division Engineer, or Regional Administrator (or
designee) may initiate policy implementation review between the District and/or Division
Engineer (or designee) and the EPA Regional Administrator (or designee) through written
notification. The written notification will describe the issue in sufficient detail and
provide recommendations for resolving the issue. The District Engineer or Division
Engineer (or designee), depending on the level of the issue, or the Regional Administrator
(or designee) will resolve the issue within 60 calendar days of receipt of written
notification to initiate policy implementation review.
3. In the context of Part 111 of this MOA, “resolve means to review the issue, obtain
the views of the reqyçsting.party, discuss those views as appropriate, fully consider those
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views, and then make the final determination, in writing, regarding the particular
resource, policy, procedure, or regulation interpretation.
4. If during consultation, the Regional Administrator (or designee) or the Corps (District
Engineer or Division Engineer, or designee) determine the issue cannot or should not be
resolved at the field level, or that an issue has broader implications beyond the Division,
the RA and Division Engineer will so notify the Assistant Administrator, Office of Water
(AAOW) and the ASA(CW), through the Director of Civil Works, respectively, in
writing. Such notification will describe the nature of the issue and the reasons why the
issue cannot, or should not, be resolved at the District or Division level or Regional
level. (e.g., national policy issue)
5. Either the AAOW or the ASA(CW) may initiate informal or formal consultation
concerning unresolved regional issues or national issues by meeting within 30 calendar
days of receipt of notification under paragraph 4. above, or within 30 calendar days of
receipt of notification of a policy or procedural issue or issues raised directly at
Headquarters level. Within 60 calendar days of that meeting, the agencies will agree to
provide direction, guidance, or joint guidance (e.g., general guidance on the Section
404(b)(1) Guidelines), where appropriate in response to the issues raised in 4., above.
6. At no time should individual permit decisions be delayed pending resolution of policy
issues pursuant to PART III of this MOA. Similarly, changes in policy (i.e., new
policies) that occur as a result of PART III should not affect applicants who have
submitted a complete permit application prior to implementation of such policy change.
7. Upon resolving a particular policy or procedure, the Corps will determine if the
policy is of sufficient importance to warrant public comment. All decisions will be
implemented pursuant to the requirements of the Administrative Procedures Act,
including public notice and comment rulemaking as necessary.
PART IV - ELEVATION OF INDIVIDUAL PERMIT DECISIONS
1. Purpose: The purpose of PART IV is to provide the exclusive procedures for the
elevation of specific individual permit cases. The elevation of specific individual permit
cases will be limited to those cases that involve aquatic resources of national importance
For example, cases that do not meet this resource value threshold cannot be elevated
under this Part over a dispute concerning practicable alternatives. More specifically, the
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P 57
elevation of individual permit cases should be limited to those cases where the net loss
(i.e., after considering mitigation) from the project (i.e., within the scope of impacts
being evaluated by the Corps), will result in unacceptable adverse effects to aquatic
resources of national importance. As a basis for comparison, these cases will cause
resource damages similar in magnitude to cases evaluated under Section 404(c) of the
Clean Water Act. The final decision on the need to elevate a specific individual permit
case and any subsequent case specific policy guidance rest solely with the ASA(CW).
2. Because delays associated with the process described within this Part IV can be costly
to the regulated public, every effort will be taken to ensure that the process under
paragraph 3(b) of this Part will be initiated only when absolutely necessary. Generic
issues concerning the use of this Part IV may be elevated by either party using the
procedures in Part III.
3. The following procedures will be utilized for the elevation of specific individual
permit cases:
FTELD LEVEL PROCEDURES
(a) Within the basic or extended comment period the Regional Administrator (or
designee) must notify the District Engineer by letter that in the opinion of EPA the
project may result in substantial and unacceptable impacts to aquatic resources of national
importance as defined in paragraph 1 of this Part.
(b) For those individual permit cases identified in paragraph 3(a), within 25
calendar days after the end of the basic or extended comment period the Regional
Administrator must notify the District Engineer by letter (signed by the Regional
Administrator) that in EPA’s opinion the discharge jfl have a substantial and
unacceptable impact on aquatic resources of national importance. The opinion will
clearly state in detail: (1) why there will be substantial and unacceptable impacts to
aquatic resource of national importance as defined in paragraph 1 of this Part and; (2)
why the specific permit must be modified, conditioned, or denied to protect the aquatic
resource of national importance. The opinion, which should explain how the agency
determination was made, should be based on site specific information and relate directly
to matters within EPA’s authority and expertise. A signed copy of the EPA letter should
be immediately faxed to the Corps regulatory project manager.
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(c) Notice of Intent to Proceed:
(1) If, following the receipt of the notification in Part IV paragraph.3(b),
the District Engineer’s proposed permit decision is contrary to the stated
EPA written recommendation in paragraph 3(b), the District Engineer will,
within five calendar days of his proposed decision, forward a copy of the
draft permit and decision document by overnight mail to the Wetlands
Division Director.
(2) If, following the receipt of the notification in Part IV paragraph 3(b),
the District Engineer believes that his proposed decision resolves the written
concerns raised by EPA pursuant to paragraph 3(b), the District Engineer
will, within five calendar days of his proposed decision, forward a copy of
the draft permit and decision document by overnight mail to the Wetlands
Division Director.
(3) Alternatively, if the District Engineer, prior to reaching a decision on
the permit (e.g., the final decision is pending resolution of issues not related
to the concerns raised by EPA), determines that the project has been
modified or conditioned sufficiently so there are no longer substantial
adverse impacts on aquatic resources of national importance, the District
Engineer will notify the Wetlands Division Director, by letter including
such project modifications and/or conditions that resolve EPA’S concerns
raised in paragraph 3(b).
(d) Within 15 calendar days from receipt of the draft permit under paragraphs
3(c)(1) or 3(c)(2) or notification under paragraph 3(c)(3), the Regional Administrator will
notify the District Engineer by faxed letter (signed by the Regional Administrator or the
Acting Regional Administrator) that:
(1) the Regional Administrator will not request higher level review; or
(2)the Regional Administrator has forwarded the issue to the AAOW with
a recommendation to request review by the ASA(CW).
(e) When the Regional Administrator requests elevation pursuant to paragraph
3(d)(2) of this Part the District Engineer will hold in abeyance the issuance of a permit
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( ri
pending completion of the Headquarters level review outlined below. Further, the
District Engineer will provide CECW-OR and ASA(CW) a copy of the Regional
Administrator’s letter notifying the District Engineer of the intent to request higherlevel
review.
AGENCY H DOUARTERS REVIEW (AS NECESSARY’ )
(f) Within 20 calendar days from the Regional Administrator’s letter notifying the
District Engineer of the intent to request higher level review (paragraph 3(d)(2)), the
AAOW will either:
(1) notify the ASA(CW) that the AAOW will not request further review
(the ASA(CW) will immediately notify CECW-OR of the AAOW’s
decision, CECW-OR will immediately notify the district regulatory chief);
or
(2) request the ASA(CW) to review the permit decision document.
(g) Within 30 calendar days from the AAOW’s request for review, the ASA(CW),
through the Director of Civil Works, will review the permit decision document and
either:
(1) inform the District Engineer to proceed with final action on the permit
decision; or
(2) inform the District Engineer to proceed with final action in accordance
with case specific policy guidance; or
(3) make the final permit decision in accordance with 33 CFR 325.8.
(h) The ASA(CW) will immediately notify the AAOW in writing of its decision
in paragraph 3(g) above. The EPA reserves the right to proceed with Section 404(c).
To assist the EPA in reaching a decision on whether to exercise its Section 404(c)
authority, the District Engineer will provide EPA a copy of the Statement of
Findings/Record of Decision prepared in support of a permit decision after the ASA(CW)
review. The permit shall not be issued during a period of 10 calendar days after such
notice unless it cont ins a condition that no activity may take place pursuant to the permit
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until such 10th day, or if the EPA has initiated a Secuon 404(c) proceeding during such
10 day period, until the Section 404(c) proceeding is concluded and subject to the final
determination in such proceeding.
—
___
Assistant Administrator for Water
Environmental Protection Agency
II c 2 _
A sistant Secretary of the Army
for Civil Works
Department of the Army
,/ . ,41 , / I I 1—
Date Date
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MEMORANDUM OF AGREEMENT BETWEEN TIlE
DEPARTMENT OF COMMERCE AND
THE DEPARTMENT OF THE ARMY
0
‘--.—
: -‘
—
1. Authority:
2. Purpose:
3. Applicability:
4. General Rules:
5. Organization:
Section 404(q) of the Clean Water Act, 33 U.S.C. 1344(q ).
Establish policies and procedures to implement Section 404(q) of the
Clean Water Act to “minimize, to the maximum extent practicable,
duplication, needless paperwork and delays in the issuance of
perrnits.u
This agreement shall apply to Regulatory authorities under: a)
Section 10 of the Rivers and Harbors Act of 1899; b) Section 404 of
the Clean Water Act; and c) Section 103 of the Marine Protection,
Research and Sanctuaries Act.
Policy and procedures for the Department of the Army Regulatory
Program are established in 33 CFR Parts 320 through 330, and 40
CFR Part 230.
This Memorandum of Agreement (MOA) is subdivided into four
distinct parts. The procedures for each part are specific to that part
and do not necessarily relate to other parts. For example, different
signature levels are established for Parts II, Ifl, and IV.
PART I - BACKGROUND
1. The Army Corps of Engineers is solely responsible for maldng final permit decisions
pursuant to Section 10, Section 404(a), and Section 103, including final determinations
of compliance with the Corps permit regulations, the Section 404(b)(1) Guidelines, and
Section 7(a)(2) of the Endangered Species Act. As such, the Corps will act as the project
manager for the evaluation of all permit applications. As the project manager, the Corps
is responsible for requesting and evaluating informaiion concerning all permit
applications. The Cqrps Will obtain and utilize this information in a maimer that moves,
as rapidly as practicil, the regulatory process towards a final permit decision. The Corps
Page 1
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1 -
will not evaluate applications as a project opponent or advocate — but instead wiU
maintain an objective evaluation, fully considering all relevant factors. The Corps will
fully consider the Department of Commerce (DOC) comments when determining
compliance with the National Environmental Policy Act, the 404(b)(l) Guidelines, and
other relevant statutes, regulations, and policies. The Corps will also fully consider the
DOC’s views when determining whether to issue the permit, to issue the permit with
conditions and/or mitigation, or to deny the permit.
2. The National Marine Fisheries Service (NMFS) within the National Oceanic and
Atmospheric Administration (NOAA) will be the point of contact for DOC and NOAA
for field discussions and permit coordination.
3. It is recognized that the NMFS has an important role in the Department of the Army
Regulatory Program under the Fish and Wildlife Coordination Act, the Clean Water Act,
National Environmental Policy Act, Endangered Species Act, Magnuson Fisheries
Conservation and Management Act, Marine-Mammal Protection Act, Marine Protection,
Research and Sanctuaries Act, and other relevant statutes. When providing comments,
only substantive, project-related information (within NOAA’s area of expertise and
authority) on the impacts of activities being evaluated by the Corps and appropriate and
practicable measures to mitigate adverse impacts will be submitted. The comments will
be submitted within the time frames established in this agreement and applicable
regulations.
4. National or regional issues relating to resources, policy, procedures, and ‘regulation
interpretation, can be elevated by either agency to their respective Washington
Headquarters for resolution as prescribed in Part III - ELEVATION OF POLICY
ISSUES. Individual permit decisions will not be delayed during the policy issue elevation
process. Elevation of issues related to specific individual permit cases will be limited to
those cases that involve aquatic resources of national importance. Procedures for
elevation of such specific cases are provided in PART IV - ELEVATION OF
INDIVIDUAL PERMIT DECISIONS.
5. For projects of other Federal agencies and Federally assisted projects for which a
Federal agency takes responsibility for environmental analysis and documentation, Army
will accept, where appropriate and legally permissible, the environmental documentation
and decisions of those agencies.
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(qS
6. This agreement does not diminish Army’s authority to decide whether a particular
individual permit should be granted, including determining whether the project is in
compliance with the Section 404(b)(1) Guidelines.
7. The officials identified in this MOA cannot delegate their responsibilities unless
specificafly provided for in this MOA. The Under Secretary of Commerce for Oceans
and Atmosphere may delegate signature authority, wherever applicable in this MOA, to
either the Assistant Secretary for Oceans and Atmosphere or an individual acting for the
Under Secretary.
8. Days referred to in this MOA are calendar days. If the end of the specified time
period fails on a weekend or holiday, the last calendar day will be the first business day
following the weekend or holiday. The end of the specified time period shall mean the
close of the business day on the last day of the specified time period.
9. This agreement is effective immediately upon the date of the last signature and will
continue in effect until modified or revoked by agreement of both parties, or revoked by
either party alone upon six months written notice.
10. The Memorandum of Agreement between the Secretary of Commerce and the
Secretary of the Army on Section 404(q) of the Clean Water Act dated March 26, 1986,
is terminated. Those permit applications which have been elevated to the Assistant
Secretary of the Army for Civil Works (ASA(CW)) under the March 26, 1986, MOA
shall be processed according to its terms. Those permit applications for which Notices
of Intent to Issue have been sent by the District Engineer in accordance with paragraph
7.b. of the March 26, 1986, MOA shall be governed by that MOA. All other permit
applications shall be governed by this agreement. For permit applications where the basic
or extended comment period has closed before the signature date of this MOA the NMFS
Regional Director has 15 calendar days from the date of the last signature below to
indicate which individual permit cases will be governed under Part IV by sending the
District Engineer the letter required in Part IV, paragraph 3(b).
PART U - COORDINATION PROCEDURES
1. Purpose: The purpose of Part II is to provide and encourage communication and full
consideration of each agencies’ views concerning proposed projects within the resource
limits of each agenoy and the time constraints of the regulatory process.
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2. District Engineers and the NMFS Regional Directors (or their designee) are
encouraged to develop, within six months of the date of this MOA, written procedures
to ensure effective interagency coordination and to discuss issues, expedite Comments, and
foster strong professional partnerships and cooperative working relationships. These
professional partnerships will be based on NMFS providing substantive, project specific
comments and the Corps giving full consideration to NMFS recommendations as the
Corps makes its determination of compliance with the Section 404(b)(l) Guidelines and
the decision on the permit application. The procedures will encourage, to the extent
appropriate:
a. interagency pre-application consultation with prospective applicants;
b. interagency site visits;
c. interagency meeting(s) with applicants;
d. cooperation in acquiring and conveying site specific information needed by
either agency to fulfill its responsibilities;
e. consistent with the time frames setforth in this MOA, an informal process
for the timely resolution of issues at the field level to ensure that the permit
evaluation proceeds as rapidly as practical.
3. The NMFS Regional Director will inform the District Engineer, in writing, of the
NMFS officials who are authorized to provide official NMFS comments, including,
where appropriate, by category of activity or geographic area. All official DOC
comments will be signed by either the NMFS Regional Director or the designated official
or an individual acting for the Regional Director or acting for the designated DOC
official. Comments signed by any of the above mentioned officials will be considered
DOC’s response in accordance with Part fl of this MOA. Notwithstanding the above,
certain actions described in Part IV require the actual signature of the NMFS Regional
Director or Acting Regional Director.
4. The Corps will ensure the timely receipt (within 2-3 days from the date of issuance)
of public notices by NMFS. DOC comments will be submitted in writing during the
basic comment period specified in the public notice. To the maximum extent practical,
NMFS will immediately provide the Corps project manager with a faxed copy of its
signed comments. Where the basic comment period is less than 30 calendar days and the
situation is not an emergency, the District Engineer (or designee) shall, upon written or
electronically transmitted request of an official authorized to provide official DOC
comments, extend the comment period to 30 calendar days. An extension beyond 30
calendar days from he date of the public notice, must be requested in writing by the
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p17
MFS Regional Director or designee. The written request must be received three
.dendar days prior to the end of the basic comment period and must demonstrate the
reason for the extension (e.g., a joint coordination meeting occurs near the end of the
comment period and NMFS needs additional time to prepare substantive comments). The
District Engineer or his designee will respond, in writing, within three calendar days of
receipt of the request letter. If the District Engineer or his designee denies the request
for extension within three calendar days prior to the end of the basic comment period,
the NMFS will have five calendar days from the receipt of the denial letter to submit final
NMFS comments. The maximum comment period, including extension, will not exceed
60 calendar days, unless sought by the applicant.
5. Consistent with the procedures in Part IV, at the conclusion of the comment period,
the Corps will proceed to final action on the permit application. The Corps will consider
any additional comments submitted by NMFS pursuant to Part IV, paragraph 3(a).
6. The Corps may, in certain cases, request additional comments from or discuss issues
relevant to the project with NMFS after the close of the comment period to either clarify
matters or obtain information relevant to the permit decision.
7. Consistent with Part IV, if the District Engineer’s decision is to issue the permit over
the objections of the NMFS Regional Director or to issue the permit without conditions
commended by the NMFS Regional Director, the District Engineer will send a copy
of the decision document to the NMFS commenting official.
PART III - ELEVATION OF POLICY ISSUES
1. Purpose: The purpose of Part UI is to provide procedures for policy issue
coordination and resolution.
2. If either agency considers that the nature of an action or series of actions raises
concerns regarding the application of existing policy or procedure, or procedural failures
in agency coordination, the District or Division Engineer, or NMFS Regional Director
(or designee) may initiate policy implementation review between the District and/or
Division Engineer (or designee) and the NMFS Regional Director (or designee) through
written notification. The written notification will describe the issue in sufficient detail
and provide recommendations for resolving the issue. The District Engineer or Division
Engineer (or designee), depending on the level of the issue, or the NMFS Regional
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Director (or designee) will resolve the issue within 60 calendar days of receipt of written
notification to initiate policy implementation review.
3. In the context of Part III of this MOA, “resolve” means to review the issue, obtain
the views of the requesting party, discuss those views as appropriate, fully consider those
views, and then make the final determination, in writing, regarding the particular
resource, policy, procedure, or regulation interpretation.
4. If during consultation, the NMFS Regional Director (or designee) or the Corps
(District Engineer or Division Engineer, or designee) determine the issue cannot or
should not be resolved at the field level, or that an issue has broader implications beyond
the Division, the NMFS Regional Director and Division Engineer will so notify the
Under Secretary for Oceans and Atmosphere (tJSOA) and the ASA(CW), through the
Assistant Administrator for Fisheries and the Director of Civil Works, respectively, in
writing. Such notification will describe the nature of the issue and the reasons why the
issue cannot, or should not, be resolved at the District or Division level or Regional level
(e.g., national policy issue).
5. Either the USOA or the ASA(CW) may initiate informal or formal consultation
concerning unresolved regional issues or national issues by meeting within 30 calendar
days of receipt of notification under paragraph 4. above, or within 30 calendar days of
receipt of notification of a policy or procedural issue or issues raised directly at
Headquarters level. Within 60 calendar days of that meeting, the agencies will agree to
provide direction, guidance, or joint guidance (e.g., general guidance on the Section
404(b)(1) Guidelines), where appropriate in response to the issues raised in 4., above.
At the discretion of the USOA or the ASA(CW), resolution of issues raised pursuant to
paragraph 4 may be delegated to the Assistant Administrator for Fisheries or the Director
of Civil Works, respectively.
6. At no time should individual permit decisions be delayed pending resolution of policy
issues pursuant to PART 111 of this MOA. Similarly, chang in policy (i.e., new
policies) that occur as a result of PART UI should not affect applicants who have
submitted a complete permit application prior to implementation of such policy change.
7. Upon resolving a particular policy or procedure, the Corps will determine if the
policy is of sufficient importance to warrant public comment. AU decisions will be
implemented pursuant to the requirements of the Administrative Procedures Act,
including public notice and comment rulemaldng as necessary.
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PART IV - ELEVATION OF INDIVIDUAL PERMIT DECISIONS
1. Purpose: The purpose of PART IV is to provide the exclusive procedures for the
elevation of speciflé individual permit cases. The elevation of speci c individual permit
cases will be limited to those cases that involve aquatic resources of national importpnc
For example, cases that do not meet this resource value threshold cannot be elevated
under this Part over a dispute concerning practicable alternatives. More specifically, the
elevation of individual permit cases should be limited to those cases where the net loss
(i.e., after considering mitigation) from the project (i.e., within the scope of impacts
being evaluated by the Corps), will result in unacceptable adverse effects to aquatic
resources of national importance. As a basis for comparison, these cases will cause
resource damages similar in magnitude to cases evaluated under Section 4 04(c) of the
Clean Water Act. The final decision on the need to elevate a specific individual permit
case and any subsequent case specific policy guidance rest solely with the ASA(CW).
2. Because delays associated with the process described within this Part IV can be costly
to the regulated public, every effort will be taken to ensure that the process under
paragraph 3(b) of this Part will be initiated only when absolutely necessary. Generic
issues concerning the use of this Part IV may be elevated by either party using the
procedures in Part Ill.
3. The following procedures will be utilized for the elevation of specific individual
permit cases:
FIELD LEVEL PROCEDURES
(a) Within the basic or extended comment period the NMFS Regional Director
(or designee) must notify the District Engineer by letter that in the opinion of NMFS the
project m y result in substantial and unacceptable impacts to aquatic resources of national
importance as defined in paragraph 1 of this Part.
(b) For those individual permit cases identified in paragraph 3(a), within 25
calendar days after the end of the basic or extended comment period the N MFS Regional
Director must notify the District Engineer by letter (signed by the Regional Director or
Acting Regional Director) that in the NMFS’s opinion, the discharge jj1 have a
substantial and unacceptable impact on aquatic resources of national importance. The
opinion will clearly, state in detail: (1) why there will be substantial and unacceptable
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impacts to aquatic resource of national importance as defined in paragraph 1 of this Part
and; (2) why the specific permit must be modified, conditioned, or denied to protect the
aquatic resource of national importance. The opinion, which should explain hoW the
agency determination was made, should be based on site specific information and relate
directly to matters within NOAA’s authority and expertise. A signed copy of the NMFS
Regional Director’s letter should be immediately faxed to the Corps regulatory project
manager.
(c) Notice of Intent to Proceed:
(1) If, following the receipt of the notification in Part IV paragraph 3(b),
the District Engineer’s proposed permit decision is contrary to the stated
NMFS written recommendation in paragraph 3(b), the District Engineer
will, within five calendar days of his proposed decision, forward a copy of
the draft permit and decision document by overnight mail to the NMFS
Regional Director.
(2) If, following the receipt of the notification in Part IV paragraph 3(b),
the District Engineer believes that his proposed decision resolves the written
concerns raised by NMFS pursuant to paragraph 3(b), the District Engineer
will, within five calendar days of his proposed decision, forward a copy of
the draft permit and decision document by overnight mail to the NMPS
Regional Director.
(3) Alternatively, if the District Engineer, prior to reaching a decision on
the permit (e.g., the final decision is pending resolution of issues not related
to the concerns raised by NMFS), determines that the project has been
modified or conditioned sufficiently so there are no longer substantial
adverse impacts on aquatic resources f national importance, the District
Engineer will notify the NMFS Regional Director, by letter including such
project modifications and/or conditions that resolve NMFS’s concerns
raised in paragraph 3(b).
(d) Within 15 calendar days from receipt of the draft permit under paragraphs
3(c)(l) or 3(c)(2) or notification under paragraph 3(c)(3), the NMFS Regional Director
will notify the District Engineer by faxed letter (signed by the Regional Director or the
Acting Regional DiF ctor)’ that:
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(1) the Regional Director will not request higher level review; or
(2) the Regional Director has forwarded the issue to the USOA with a
recommendation to request review by the ASA(CW).
(e) When the NMFS Regional Director requests elevation pursuant to paragraph
3(d)(2) of this Part the District Engineer will hold in abeyance the issuance of a permit
pending completion of the Headquarters level review outlined below. Further, the
District Engineer will provide CECW-OR and ASA(CW) a copy of the NMFS Regional
Director’s letter notifying the District Engineer of the intent to request higher level
review.
AGENCY HEADQUARTERS REVIEW (AS NECESSARY )
(f) Within 20 calendar days from the NMFS Regional Director’s letter notifying
the District Engineer of the intent to request higher level review (paragraph 3(d)(2)), the
USQA will either:
(1) notify the ASA(CW) that the USOA will not request further review (the
ASA(CW) will immediately notify CECW-OR of the USOA’s decision,
CECW-OR will immediately notify the district regulatoiy chief); or
(2) request the ASA(CW) to review the permit decision document.
(g) Within 30 calendar days from the USOA’s request for review, the ASA(CW),
through the Director of Civil Works, will review the permit decision document and
either:
(1) inform the District Engineer to proceed with final action on the permit
decision; or
(2) inform the District Engineer to proceed with final action in accordance
with case specific policy guidance; or
(3) make the final permit decision in accordance with 33 CFR 325.8.
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(h) The ASA(CW) will immediately notify the USOA in writing of its decision
in paragraph 3(g) above.
Und f Secretary for Oceans
and Atmosphere
Department of Commerce
AUG 1HS 2
Assistant Se retary of the Army
for Civil Works
Department of the Army
// / 1
Date
Page 10
Date
Clean Wa.ter Act Section 404(q) Memor ndurn of Agreement Between
The Department of Commerce and The Department of the Army
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r%rEMORANDTJM OF AGREEr 1EN-F BETWEEN THE
DEPARTMENT OF THE INTERIOR AND
TILE DEPARTMENT OF THE ARr IY
toJ
•-(
e ••
1. Authority:
2. Purpose:
3. Applicability:
4. General Rules:
5. Organization:
Section 40 4(q) of the Clean Water Act, 33 U.S.C. l 34 4(q).
Establish policies and procedures to implement Section 4 O 4 (q) of the
Clean Water Act to “minimize, to the maximum extent practicable,
duplication, needless paperwork and delays in the issuance of
permits. N
This agreement shall apply to Regulatory authorities under: a)
Section 10 of the Rivers and Harbors Act of 1899; b) Section 404 of
the Clean Water Act; and c) Section 103 of the Marine Protection,
Research and Sanctuaries Act.
Policy and procedures for the Department of the Army Regulatory
Program are established in 33 CFR Parts 320 through 330, and 40
CFR Part 230.
This Memorandum of Agreement (MOA) is subdivided into four
distinct parts. The procedures for each part are specific to that part
and do not necessarily relate to other parts. For example, different
signature levels are established for Parts II, III, and IV.
PART I - BACKGROU
1. The Army Corps of Engineers is solely responsible for malting final permit decisions
pursuant to Section 10, Section 404(a), and Section 103, including final determinations
of compliance with the Corps permit regulations, the Section 404(b)(1) Guidelines, and
Section 7(a)(2) of the Endangered Species Act. As such, the Corps will act as the project
manager for the evaluation of all permit applications. As the project manager, the Corps
is responsible for requesting and evaluating information concerning all permit
applications. The Corps will obtain and utilize this information in a maimer that moves,
as rapidly as practical, the regulatory process towards a final permit decision. The Corps
Page 1
Clean Wa.ter Act Section 404(q) Memorandum of Agreement Between
The Department of the Interior and The Department of the Army
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2 4-
will not evaluate applications as a project opponent or advocate — but instead will
maintain an objective evaluation, fully considering all relevant factors. The Corps will
fully consider the Department of Interior (DOl) comments when determining compliance
with the National Environmental Policy Act, the 404(b)(l) Guidelines, and other relevant
statutes, regulations, and policies. The Corps will also fully consider the DOl’s views
when determining whether to issue the permit, to issue the permit with conditions and/or
mitigation, or to deny the permit.
2. It is recognized that the DOI has an important role in the Department of the Army
Regulatory Program under the Fish and Wildlife Coordination Act, the Clean Water Act,
National Environmental Policy Act, Endangered Species Act, and other relevant statutes.
When providing comments, only substantive, project-related information (within DOl’s
area of expertise and authority) on the impacts of activities being evaluated by the Corps
and appropriate and practicable measures to mitigate adverse impacts will be submitted.
The comments will be submitted within the time frames established in this agreement and
applicable regulations.
3. National or regional issues relating to resources, policy, procedures, and regulation
interpretation, can be elevated by either agency to their respective Washington
Headquarters for resolution as prescribed in Part III - ELEVATION OF POLICY
ISSUES. Individual permit decisions will not be delayed during the policy issue elevation
process. Elevation of issues related to specific individual permit cases will be limited to
those cases that involve aquatic resources of national importance. Procedures for
elevation of such specific cases are provided in PART IV - ELEVAflON OF
INDIVIDUAL PERMIT DECISIONS.
4. For projects of other Federal agencies and Federally assisted projects for which a
Federal agency takes responsibility for environmental analysis and documentation, Army
will accept, where appropriate and legally permissible, the environmental documentation
and decisions of those agencies.
5. This agreement does not diminish Army’s authority to decide whether a particular
individual permit should be granted, including determining whether the project is in
compliance with the Section 404(b)(1) Guidelines.
6. The officials identified in this MOA cannot delegate their responsibilities unless
specifically provided for in this MOA.
Clean Water Act Section 404(q) Memorandum of Agreement Between Page 2
The DepaMment of the InteH or and The Depamnent of the Anny
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7. Days referred to in this MOA are calendar days. If the end of the specified time
period falls on a weekend or holiday, the last calendar day will be the first business day
following the weekend or holiday. The end of the specified time period shall mean the
close of the business day on the last day of the specified time period.
8. This agreement is effective immediately upon the date of the last signature and will
continue in effect until modified or revoked by agreement of both parties, or revoked by
either party alone upon 30 calendar days written notice.
9. The Memorandum of Agreement between the Secretary of the Interior and the
Secretary of the Army on Section 404(q) of the Clean Water Act dated November 8,
1985, is terminated. Those permit applications which have been elevated to the Assistant
Secretary of the Army for Civil Works (ASA(CW)) under the November 8, 1985, MOA
shall be processed according to its terms. Those permit applications for which Notices
of Intent to Issue have been sent by the District Engineer in accordance with paragraph
7.b. of the November 8, 1985, MOA shall be governed by that MOA. All other permit
applications shall be governed by this agreement. For permit applications where the basic
or extended comment period has closed before the signature date of this MOA the Fish
and Wildlife Service (FWS) Regional Director has 15 calendar days from the date of the
last signature below to indicate which individual permit cases will be governed under Part
IV by sending the District Engineer the letter required in Part IV, paragraph 3(b).
PART II- COORDINATION PROCEDURES
1. Purpose: The purpose of Part II is to provide and encourage communication and full
consideration of each agencies’ views concerning proposed projects within the resource
limits of each agency and the time constraints of the regulatory process.
2. The Assistant Secretary for Fish and Wildlife and Parks, at the direction of the
Secretary of the Interior, will be the point of contact for coordination with DO! and will
provide comments, through the Director of the Fish and Wildlife Service, on behalf of
DO! on permit applications evaluated through the Army Regulatory Program.
3. District Engineers and the FWS Regional Directors as representatives of DO! will
direct the development, and approve, within six months of the date of this MOA, written
procedures to ensure effective interagency coordination and to discuss issues, expedite
comments, and foster strong professional partnerships and cooperative wor ng
Clean Waxer Act Section 404(q) Memorandum of Agreement Between Page 3
The Department of the Inte,ior and The Department of the Army
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relationships. These professional partnerships will be based on DOl providing
substantive, project specific comments and the Corps giving full consideration to FWS
recommendations as the Corps makes its determination of compliance with the Section
404(b)(l) Guidelines and the decision on the permit application. The procedures will
encourage, to the extent appropriate:
a. interagency pre-application consultation with prospective applicants;
b. interagency site visits;
c. interagency meeting(s) with applicants;
d. cooperation in acquiring and conveying site specific information needed by
either agency to fulfill its responsibilities;
e. consistent with the time frames setforth in this MOA, an informal process
for the timely resolution of issues at the field level to ensure that the permit
evaluation proceeds as rapidly as practical.
4. The FWS Regional Director will inform the District Engineer, in writing, of the FWS
officials who are authorized to provide official DOl comments, including, where
appropriate, by category of activity or geographic area. All official DOl comments will
be signed by either the FWS Regional Director or the designated official. Comments
signed by any of the above mentioned officials will be considered DOl’s response in
accordance with Part 11 of this MOA. Notwithstanding the above, certain actions
described in Part IV require the actual signature of the FWS Regional Director.
5. The Corps will ensure the timely receipt (within 2-3 days from the date of issuance)
of public notices by FWS. DOl comments will be submitted in writing during the basic
comment period specified in the public notice. To the maximum extent practical, DOl
will immediately provide the Corps project manager with a faxed copy of DOl signed
comments. Where the basic comment period is less than 30 calendar days and the
situation is not an emergency, the District Engineer (or designee) shall, upon written or
electronically transmitted request of an official authori.zed to provide official DOl
comments, extend the comment period to 30 calendar days. An extension beyond 30
calendar days from the date of the public notice, must be requested in writing by the
FWS Regional Director, Deputy Regional Director, or Assistant Regional
Director/Enhancement. The written request must be received three calendar days prior
to the end of the basic comment period and must demonstrate the reason for the extension
(e.g., a joint coordination meeting occurs near the end of the comment period and DOl
needs additional time to prepare substantive comments). The District Engineer or his
designee will respond, in writing, within three calendar days of receipt of the request
aean Water Act Section 404(q) Memorandum of Agreement Between Page 4
The Department of the Interior and The Depamnera of the Army
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letter. If the District Engineer or his designee denies the request for extension within
three calendar days prior to the end of the basic comment period, the FWS will have five
calendar days from the receipt of the denial letter to submit final DOl comments. . The
maximum comment period, including extension, will not exceed 60 calendar days, unless
sought by the applicant.
6. Consistent with the procedures in Part IV, at the conclusion of the comment period,
the Corps will proceed to final action on the permit application. The Corps will consider
all comments submitted by DOl pursuant to Part IV, paragraphs 3(a) and 3(b).
7. The Corps may, in certain cases, request additional comments from or discuss issues
relevant to the project with DOl after the close of the comment period to either clarify
matters or obtain information relevant to the permit decision.
8. Consistent with Part IV, if the District Engineer’s decision is to issue the permit over
the objections of DOl or to issue the permit without conditions recommended by the DOl,
the District Engineer will send a copy of the decision document to the DOl commenting
official.
9. Notwithstanding any other provision of this agreement, nothing in this agreement shall
be construed to affect the responsibility of the Corps of Engineers to comply with the
provisions of Section 7(a)(2) of the Endangered Species Act, including the procedural
provisions for interagency consultation established in 50 CFR 402.
PART III - ELEVATION OF POLICY ISSUES
1. Purpose: The purpose of Part UI is to provide procedures for policy issue
coordination and resolution.
2. If either agency considers that the nature of an action or series of actions raises
concerns regarding the application of existing policy or 5rocedure, or procedural failures
in agency coordination, the District or Division Engineer, or FWS Regional Director
acting on behalf of DOI, may initiate policy implementation review between the District
and/or Division Engineer (or designee) and the FWS Regional Director, Deputy Regional
Director, or Assistant Regional Director/Enhancement, through written notification. The
written notification will describe the issue in sufficient detail and provide
recommendations for resolving the issue. The District Engineer or Division Engineer (or
Clean Water Ac: Section 404(q) Memorandum of Agreement Between Page 5
The Depairment of the Interior and The Depaziment of the Army
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2o
designee), depending on the level of the issue, or the Regional Director, Deputy Regional
Director, or Assistant Regional Director/EriJ ancement will resolve the issue withj 60
calendar days of receipt of written notification to initiate policy implementation review.
3. In the context of Part III of this MOA, “resolve” means to reviev the issue, obtain
the views of the requesting party, discuss those views as appropriate, fully Consider those
views, and then make the final determination in writing, regarding the particular
resource, policy, procedure, or regulation interpretation.
4. If during consultation, the FWS Regional Director, Deputy Regional Director, or
Assistant Regional DirectortEnhancement, or the Corps (District Engineer or Division
Engineer, or designee) determine the issue cannot or should not be resolved at the field
level, or that an issue has broader implications beyond the Division, the FWS Regional
Director and Division Engineer will so notify the Assistant Secretary for Fish and
Wildlife and Parks (AJS-FWP) and the ASA(CW), through the Director of Fish and
Wildlife Service and the Director of Civil Works, respectively, in writing. Such
notification will describe the nature of the issue and the reasons why the issue cannot, or
should not, be resolved at the District or Division level or Regional level (e.g., national
policy issue).
5. Either the A/S-FWP or the ASA(CW) may initiate informal or formal consultation
concerning unresolved regional issues or national issues by meeting within 30 calendar
days of receipt of notification under paragraph 4. above, or within 30 calendar days of
receipt of notification of a policy or procedural issue or issues raised directly at
Headquarters level. Within 60 calendar days of that meeting, the agencies will agree to
provide direction, guidance, or joint guidance (e.g., general guidance on the Section
404(b)(1) Guidelines), where appropriate in response to the issues raised in 4., above.
6. At no time should individual permit decisions be delayed pending resolution of policy
issues pursuant to PART III of this MOA. Similarly, c hang in policy (i.e., new
policies) that occur as a result of PART In should not affect applicants who have
submitted a complete permit application prior to implementation of such policy change.
7. Upon resolving a particular policy or procedure, the Corps will determine if the
policy is of sufficient importance to warrant public comment. All decisions will be
implemented pursuant to the requirements of the Administrative Procedures Act,
including public notice and comment rulemaking as necessary.
aean Water Act Section 404(q) Memorandum of4greemera Between Page 6
The Department of the Interior and The Depan’mera of the Anny
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-7
PART IV - ELEVATION OF INDIVIDUAL PERMIT DECISiONS
1. Purpose: The purpose of PART IV is to provide the exclusive procedures for the
elevation of specific individual permit ca.ses. The elevation of spec F: individual permit
cases will be limited to those cases that involve aquatic resources of national importance .
For example, cases that do not meet this resource value threshold cannot be elevated
under this Part over a dispute concerning practicable alternatives. More specifically, the
elevation of individual permit cases should be limited to those cases where the net loss
(i.e., after considering mitigation) from the project (i.e., within the scope of impacts
being evaluated by the Corps), will result in unacceptable adverse effects to aquatic
resources of national importance. The final decision on the need to elevate a specific
individual permit case and any subsequent case specific policy guidance rest solely with
the ASA(CW).
2. Because delays associated with the process described within this Part IV can be costly
to the regulated public, every effort will be taken to ensure that the process under
paragraph 3(b) of this Part will be initiated only when absolutely necessary. Generic
issues concerning the use of this Part IV may be elevated by either party using the
procedures in Part ifi.
3. The following procedures will be utilized for the elevation of specific individual
permit cases:
FIELD LEVEL PROCEDURES
(a) Within the basic or extended comment period the FWS Regional Director (or
designee) must notify the District Engineer by letter that in the opinion of DOl the project
may result in substantial and unacceptable impacts to aquatic resources of national
importance as defined in paragraph 1 of this Part.
(b) For those individual permit cases identified in paragraph 3(a), within 25
calendar days after the end of the basic or extended comment period the FWS Regional
Director must notify the District Engineer by letter (signed by the FWS Regional
Director) that in the DOl’s opinion the discharge il1 have a substantial and unacceptable
impact on aquatic resources of national importance. The opinion will clearly state in
detail: (1) why there will be substantial and unacceptable impacts to aquatic resource of
national importance as defined in paragraph 1 of this Part and; (2) why the specific
permit must be modified,, conditioned, or denied to protect the aquatic resource of
Clean Water Act Sectf on 404(q) Memorundum of Agreement Between Page 7
The Department of the Inte,i or and The Department of the Army
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national importance. The opinion, which should explain how the agency determination
was made, should be based on site specific information arid relate directly to matters
within DOl’s authority and expertise. A signed copy of the FWS Regional Director’s
letter should be immediately faxed to the Corps regulatory project manager.
(c) Notice of Intent to Proceed:
(1) If, following the receipt of the notification in Part IV paragraph 3(b),
the District Engineer’s proposed permit decision is contrary to the stated
DOl written recommendation in paragraph 3(b), the District Engineer will,
within five calendar days of his proposed decision, forward a copy of the
draft permit and decision document by overnight mail to the FWS Regional
Director.
(2) If, following the receipt of the notification in Part IV paragraph 3(b),
the District Engineer believes that his proposed decision resolves the written
concerns raised by DOl pursuant to paragraph 3(b), the District Engineer
will, within five calendar days of his proposed decision, forward a copy of
the draft permit and decision document by overnight mail to the FWS
Regional Director.
(3) Alternatively, if the District Engineer, prior to reaching a decision on
the permit (e.g., the final decision is pending resolution of issues. not related
to the concerns raised by DOl), determines that the project has been
modified or conditioned sufficiently so there are no longer substantial
adverse impacts on aquatic resources of national importance, the District
Engineer will notify the FWS Regional Director, by letter including such
project modifications and/or conditions that resolve DOl’s concerns raised
in paragraph 3(b).
(d) Within 15 calendar days from receipt of the draft permit under paragraphs
3(c)(l) or 3(c)(2) or notification under paragraph 3(c)(3), the FWS Regional Director will
notify the District Engineer by faxed letter (signed by the FWS Regional Director) that:
(1) the FWS Regional Director will not request higher level review; or
(2) the FWS Regional Director has forwarded the issue to the A/S-FWP,
Clean Water Act Section 404(q) Memorandum of Agreement Between Page 8
The Depamnent of the Irae,ior and The Depanment of the Army
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2 (1
through the Director of the Fish and Wildlife Service with a
recommendation to request review by the ASA(CW).
(e) When the FWS Regional Director requests elevation pursuant to paragraph
3(d)(2) of this Part the District Engineer will hold in abeyance the issuance of a permit
pending completion of the Headquarters level review outlined below. Further, the
District Engineer will provide CECW-OR and ASA(CW) a copy of the FWS Regional
Director’s letter notifying the District Engineer of the intent to request higher level
review.
AGENCY HEADQUARTERS REViEW (AS NECESSARY1 )
(f) Within 20 calendar days from the FWS Regional Director’s letter notifying the
District Engineer of the intent to request higher level review (paragraph 3(d)(2)), the A/S-
FWP will either:
(1) notify the ASA(CW) that the A/S-FWP will not request further review
(the ASA(CW) will immediately notify CECW-OR of the A/S-FWP’s
decision, CECW-OR will immediately notify the district regulatory chief);
or
(2) request the ASA(CW) to review the permit decision document.
(g) Within 30 calendar days from the A/S-FWP’s request for review, the
ASA(CW), through the Director of Civil Works, will review the permit decision
document and either:
(1) inform the District Engineer to proceed with final action on the permit
decision; or
(2) inform the District Engineer to proceed with final action in accordance
with case specific policy guidance; or
(3) make the final permit decision in accordance with 33 CFR 325.8.
Clean Water Act Section 404(q) Memorandum of Agreement Between Page 9
The Deparrment of the Interior and The Depamnent of the Army
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LI
(h) The ASA(CW) will immediate’y notify the A/S-FWP in writing of its decision
in paragraph 3(g) above.
AssisT .nt Secretaiy’ for Fish and
Wildlife and Parks
Department of Interior
iiL
Date
Assistant Secretary of the Army
for Civil Works
Department of the Army
J ’i7e-’ .
Date
Clean W er Act Section 404(q) Memorandum of Agreement Between
The Department of the Interior and The Department of the Army
Page 10
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11-8. Field Level Memorandum of Agreement, COE (Pittsburgh District) and EPA
(Region III), “Concerning SurveillancefEnforcement Action Under Section 404
of the Clean Water Act. -
11-9. Field Level Memorandum of Agreement, COE (Baltimore District) and EPA
(Region III), “Concerning SurveillancefEnforcement Action Under Section 404
of the Clean Water Act.
11-10. Field Level Memorandum of Agreement, COE (Philadelphia District) and EPA
(Region III), “Concerning SurveillancefEnforcelfleflt Action Under Section 404
of the Clean Water Act.
1 1-11. Field Level Agreement, COE (New England Division) and EPA (Region I),
“Concerning Enforcement Under Section 404 of the Clean Water Act.”
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2 (4
FIELD LEVEL (ORA.NDUM OF ACREEMEN’r
BETWEEN
aE U.S. AR.M coRpS OF ENGINEERS, PITISB .TRGM DISTRICT
AND
flLZ U.S. E IRO NTAL PROTECTION AGENCY, REGION III
CONCERNING StYRVEILL NCE/ENFORCENENT ACTION UNDER
SECTION 404 OF T} CLEAN WATER ACT
I. Puroose Seo . and Authority
A. The January 19, 1989 Memorandum of Agreement (MOA)
between the Department of the Army and the U.S.
Environ.mentaj. Protection Agency (EPA) concerning
enforcement of the Section 404 program encourages the
Corps of Engineers (Corp.) and EPA to enter into field
level interagency enforcement agreement.. The
Pittsburgh District of the U.S. Army Corps of Engineers
and EPA Region III hereby establish policy and
procedures to undertake surveillance and enforcement of
Section 404 unpermitted discharges within the
Pittsburgh District boundaries of the Coamonw.alth of
Pennsylvania The purpose of this Field Level
Memorandum of Agreement (TUtOA) is to enable the Corps
and EPA to more effectively and efficiently utilize
their Section 404 enforcement resource, by establishing
a frameuor that will strengthen the enforcement
program and reduce overlapping interagency work
efforts.
B. EPA, Region III will supp]emsnt its surveillance and
•nforcement activities through an Interagency Agreement
(ZAG) with the U.S. Fish and Wildlife Service (FWS).
The EPA/FWS ZAG auth ri:ss th. FWS to act as the EPA’.
field representatives in identifying and investigating
unpermitted Section 404 activities.
C. The Corps and EPA have enforcement authorities for the
Section 404 program, as specified in Sections 301(a),
308, 309, 404(n) and 404( 5) of the Clean Water Act.
This agreement supplements the above referenced
anuary 19, 1989 MOA (National 140k) and establishes the
policy and procedures for implementation of this
agreement. Nothing in this agreement is intended to
diminish, modify or otherwise affect the policies and
procedures established in the National, 140k.
A. General Policy
1. EPA will, continue to act as the lead enforcement
agency throughout the Pittsburgh District on the
four categeriss of unauthorized discharges
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2t G’
referred to in the National MOA. These Categories
are as follows:
a. Rspsat violator(s);
b. 7lagrant violation(s)
c. Where EPA re iests a class Of cases or a
particular case:
4. The Corps recommends that an EPA
administrativ, penalty action may be
warranted.
2. The EPA viii serve as the lead enforcement agency
in Erie, Potter, Clearfield, Cambria, Indiana,
Armstrong, Elk, and Somerset Counties of
Pennsylvania. The Pittsburgh District viii serve
as the lead enforcement agency in all other
counties within their District. However, this
agreement does not preclude EPA from requesting
lead agency status on a particular case in the
other counties in the Pittsburgh District in which
the Pittsburgh District COE viii normally serve as
lead. EPA agrees to coordinate on all matters ___
prior to taking any action. In cases where EPA J
discovers the unauthorized discharge and voluntary
complianc, seems likely, EPA will assume that lead I
agency status has been granted by the Pittsburgh
District.
B. I rtvesti atiort
Both the Corps and EPA may conduct routine
investigations of unauthorized discharges and prepare
field reports in accordance with established
enforcement procedures throughout the district. If one
agency discovers an unauthorized discharge in the other
agency’s lead geographic region specified above, the
discovering agency viii collect the preliminary field
information necessary to document the existence of the
violation end may formally order the violator to cease
and desis from further unauthorized 404 activity. All
such written orders viii refer the violator to the
other agency for resolution, unless lead status is
requested by the discovering agency. This preliminary
information and subsequent cease and desist order (EPA
Administrative Order) will then be referred to the lead
agency responsible for that geographic region for
subsequent action to achieve compliance. If resources
or time do net allow for the collection of this
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2 7
III. .in* 2J’
preliminary infcration, the agency discovering the
unauthorized discharge will report the location and
natur. of th . violation to th. lead agency for that
region as soon as possible
A. The policy and procedures contained in this Yt2 0A do
not create any rights, either substantive or
procedural, enforceable by any party regarding an
enforce .nt action brought by either agency or by the
T nit.d States. Deviation or variance tram these FI1IOA
procedures will not constitute a defense for violators
or others concerned with any Section 404 enforcement
action.
3. This agreement shall tak. effect ten (10) days after
the date of the last signature below and will continue,
until modified or rsvo ed by agreement of any of the
parties or until revoksd by any party alone upon
written notice.
C. EPA or the Corps shall continue to be the lead agency
on all enforcement cases initiated by that agency prior
to the effective (a s of this FLMOA regardless of
geographic location.
Colonel, Corps of Engineers
District Engineer
Regional Adaini.trator
S. Environmental Protection Agency
Region III, Philadelphia, Pennsylvania
D 7 - ”
Da ’’ ’ f ’ .z ...
JJ’ 4 /f -..- .
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FIELD LEVEL ? OR)NDUM 0? AGREDCEN?
BETWEEN
TEE U.S. ARMY CORPS OF ENGINEERS, BALTIMORE DISTRICT
AND
TEE U.S. EVIROW NTAL PROTECTION AGENCY, REGION III
CONCERNING StYRVt ILLANCE/ ENFORCE1 NT ACTION UNDER
SECTION 404 07 THE CLEAN WATER ACT
1. Purpose, Scope and Authority
a. The January 19, 1989 Memorandum of Agreement (MOA) b.tween
the Department of the Army and the U.S. Environmental Protection
Agency (EPA) concerning enforcement of the Section 404 program
encourages the Corps of Engineers (Corps) and EPA to enter into field
level interagency ertforcement agreements. The Baltimore District of
thi U.S. Army Corps of Engineers and EPA Region III hereby establish
policy and procedures to undertake surveillance and enforcement of
Section 404 unpermitted discharges within the Baltimore District
boundaries of the Commonwealth of Pennsylvania and the State of
Maryland. Th. purpose of this Field Level Memorandum of Agreement
(FL2 OA) is to enable the Corps and EPA to more effectively and
efficiently utilize their Section 404 enforcement resources by
establishing a framework that viii strengthen the enforcement program
and reduc. overlapping interagency work efforts.
b. EPA will supplement its surveillanc, and enforcement
activities through an Interagency Agreement (ZAG) with the U.S. Fish
and Wildlife Service (TWS). The EPA/FWS ZAG will authorize the FWS
to act as the EPA ’s field representatives in identifying and
investigating unpermitted Section 404 activities.
c. The Corps and EPA hay, enforcement authorities for the
Section 404 program, as specified in Sections 301(a), 308, 309,
404(n) and 404(s) of the Clean Water Act. This agreement supplements
the above referenced January 19, 1989 MOA (National MOA) and
establishes the policy and procedures for implementation of this
agreement. Nothing in this agreement is intended to diminish,
modify or otherwise affect th. policies and procedures established
in the National MOA.
2. Policy
a. GsI erai Policy
ti) EPA viii continue to act as the lead enforcement
agency throughout the Baltimore District on the four categories of
unauthorized discharges referred to in the National MOA. These
categories are as fo]lovst
(a) Repeat violator(a)i
(b) Flagrant violation(s):
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-2-
(c) Where EPA r.qu.sts’a class of cases or a
particular C*5C1 or
(d) Th* Corps recommends that an EPA administrative
penalty action may be warranted.
(2) In addition, EPA viii serve as lead surveillance and
enforcement agency in the geographic regions id.ntified in Section
2.b.(l) of this agreement. The Corps viii serve as the lead
surveillartee and enforcement agency within the geographic region
identified in Section 2.b.(2) of this agreement. This agreement,
however, does not preclude either agency from requesting lead agency
status on a particular case even though the case may be located
outside of their geographic region; but each agency agrees to
coordinate en such matters prier to taking any formal enforcement
action.
b. Geographic Regions for Lead Enforcement Agency Action
(1.) EPA: Th. EPA viii act as the lead enforcement agency
for unauthorized discharges in the following counties: Chsster,
Lancaster, Lebanon, Barks, Schuylkill, Cambria, Indiana, Clearf i b id ,
Elk, Cameron, McKeart and Petter counties in Pennsylvania and the
District of Columbia and Montgomery, Howard, Anne Arundel, Prince
Georges, Charles, Calvert and St. Marys counties in Maryland. a
2) Corps: Th. Baltimore District viii be the lead
enforcement agency for unauthorized discharges in th. following
counties: Bradford, Susquehanrta, Clinton, Lycomirtg, Sullivan,
Wyoming, Lackawanna, Centre, tTnion, Montour, Columbia, Luzerne,
Blair, Muntingdon, Mifflin, Juniata, Snyder, Northumberland,
Somerset, Bedford, Fulton, Franklin, Perry, Cumberland, Dauphin,
Adams and York countSe in Pennsylvania and Baltimore City and
Garrett, Allegany, Washington, Frederick, Carroll, Baltimore,
Harford, Cecil, Kent, Queen Mites, Talbet, Caroline, Dorchester,
Wicoico, Somerset and Worcester counties in Maryland.
c. Investigation
The Corps and EPA viii conduct routine investigations of
unauthorized discharges and prepare field reports in accordance with
established enforcement procedures. If on. agency discovers an
unauthorized, discharge in the other agency’s geographic region the
discovering aqeitcy yili collect the preliminary field information
necessary tâ:d uae,it4hs existence of the violation and may verbally
notify the vio atot to cease and desist from further unauthorized 404
activity. ‘.T1Us ‘al’Lminary information viii then be referred to the
lead agency responsible for that geographic region for appropriate
enforcement action. If resources or time do not alloy for the
collection of this preliminary information, the agency discovering
the unauthorized discharge viii report th. location and nature of the
violation to the lead agency for that region as soon as possible.
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22)
3. Gen.ral
. The policy and procedures contain sd in thi’s 7 1 2 (0 k do not
create any rights, either substantive or proced ura 3 s enforceable by
any party regarding an enforcement action brought b either agency or
by the United States. Deviation or variance from the 712 (0k
procedures will not constitute a defense for violators or others
concerned with any S.ctiofl 404 enforcement action.
b. mis agreement shall take effect ten (10) days after the
date of the last signature below and will continue until modified or
revoked by agreement of any of the parties or until revoked by any
party alone upon written notice.
c 9 t’rps of Engineers
Engineer
ERICKSON
Regional Administrator
T3.S. Environmental protection
III. Philadelphia, Pen
-
Agency
nsylVan
ia
p L2 ?
4 1 Q 2 ‘
( kP ANx R .
Icolortsl,
/ District
27 1 AIuh4 /7O
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223
rrrn LLV ? AH ( OF
U. S. ) ps or A CA DIs ICr
U. S. 7IWTI21 Y, z I i III
I G ACIT i R
404 OF DN )
1. RLr Jos4 . S. xç e ard t rity
d. The JarL axy 19, 1989 ! rardL of qr erit (Natt a1 ?C?) bet the
ar nt of the Ar rj ard the U.S. wirr r ta1 P t.acti )qer y (WA) rwq
e for nt of the S ti 404 ptv ra er rag the of Dqineexi ( ) ard
A to enter into field level interagercy en.for nt agr nts ( cl g 1). -
RtUadel ia District of the U.S. Army of qfrieers aid A hereby
etablish pr ur to wderta3ce en.for r nt of r itt S ti 404 d.isd arges
with.th the P 1w 1 41 *Lta District b dari of the , alth of Penrsy1V rLia.
The p e of this Field Level ) rard of qr zTt (FtZ’ ) is to ,able the
O r 4 ard A to re affactively aid efficiently utilize their S ti % 404
enfoz nt by tab1ishirq a fra ork that will sterqt1 the
enZor nt pr gmm aid r -’ cver1a ?ir thtermgercy dc efforts.
b. Là.4 , Rd1 .lI ia District aid the A, P i III, uvi s1y entar
into a FI2 tablishirq the A as the 1 enfor nt ercy in the
list in article 2.b. (2). This FL1C b.e. - ’ m effactivu A st 26, 1989 aid
r ir in full for aid if fact (Eclc . 2).
a. * O z s, 1fl ’ .Lj.S District will l nt its zveillar a aid
en.for rit activiti thr 4% an Interagercy ?qr nt (DG) with the U.S. Fish aid
Wildlife S.rvi (1 ). - r /1 I wiLt authorize the P to act as the
x ’ field representative In idaritifylq aid thvest.i tizq z itt Secti 404
activities. D G will fwd by the O e s. b act to the
availability of
d. - . aid bave enfoz’ nt aut1’crittes for the Sact.t t 404
as iZie in Sacti m 301(a), 308, 309, 404(n) aid 404(s) of the .sen tar
Act. This age.er nt pl nts the above referer d )att ia1 !‘ , aid estab1is
the licy aid v res for i l ritat.t of this J7. . Nothirq in this
nt is int&d to dininish, ify or othezwiss affact the p Ucies aid
pr ires estab1ia in the Nati al 1’ .
2. Poli
a. t ne’ t(e!y
(1) A will 1ttTL* to act as the l emfor rtt cy thz 4 *zt the
ilade1t4 District the f categories of .wguthorjz. Siacti i 404 disd arges
rofer to In the Nati 1 ? .
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.2q.
—2-
. catecziea ar as fo1.l :
(a) t violat(s)
(b) T1 arit violatiat(s)
(c) fI ers A r ts a class of or a pa i 1ar s ; or
(d) rpa zri’. ni 5 that an inistratiVS panalty acti y
rrant .
(2) en rei. t by tha A will vs as l enfor t agar y
tly f wçsrmitt S ti !t 404 activiti in tha g ra iic r i i ar tifi in
S ti i 2.b. (1) of this agx’ —’it .
(3) O z 4 will tir A to sexy, as t l. xvsillar aM
.,Zox rrt ager y for all ‘ .rer itt. activitise within tha g ra LiC i *
idsntifl in $ ti i 2 .b. (2) of this are.” it .
(4) 2,is aqr nt d mt procl ..it cy £ r tirq l
cy staths at a paxti i1ar ‘ . r axd.1eas of tha g a .iC l atiat: 1 var,
eath er y to rdirat* at E t ttars pri to ta3cirq arty fv&ii&l
or ertt actiat.
b. Ge rath1C R ia for Lead .for r t ncv Actiat
(1) It t by tha C x a , A will act as the l for ertt Cy
for authorize Sextiat 404 disd argse in the foll .iirq tise: C lawax ,
!4 rtqa ry, aid L ti4t as id.ntifi at the clc6 _ (Ecl . !* 3).
(2) ay the TL1 rsf.rsr In it l.b. aboY ,, k is the l vsillar
aid eifor nt ercy in the foUa’ irq .witi: a t.r, !eria, Lar .stax,
Lthaxut, Northax ta% aid e rtiag of aid Pi) s as idmttifi at
clce p (DcL S 3).
(3) Q., j will. ztiria to l .. v.illar ai
y for all iz atzt riz activitt in the folla’irq ritiea:
r , sd yEd U, Iaci r &, tuzerT , , aM t e paxtia of aid
Pila as i ttifi a the c3 .e (D l zs 3).
C.
‘ , L- iK)
(1.) O. , s aid A will óxt r ztira jrwseti tia’g of i iut1 iZSd
Sacttat 404 disd rgea aid pr er. field r rts in ar with setablia
for 11t pro se. iwseti tta parfo i4 by the ! at alf of the
t der its I? G will bs tO the rd , ? i1 .1 1 Itt& Dis ict Of fics for
fxther enfor nt actiat refex al to for Zo . T It acti ’
w er the ta of this
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22ç
—3-.
( 2 ) Il ..lthar tha Q m or k dis .’srs an ut1xsriz activity in
otha a eny’$ e# ic tha dia ierfrq cy Vi i i pr .rs a p1i y
fiald r rt &c . ntirg tha d.st.r of tha vio1atl , aid y v 1’y cti .fy t *
violator to se ard d ist fr tiiq or paxmittirq
activity. Th.ia pralimirary r rt will rtf.rr to t l.ad cy ra ithl.
f that g a ic rWi % for açr riata aiifor nt actl . If ti
mt uU for tha pr zatl* of this p lisinazy fi.ld z cz t , th a ’&i y
d.t vsrirq ths w ut riz activity wtU r. rt tha 1 ti t aid nat s of a
vio1zti to tM l. a ercy for that r i as o t as p a ibis.
3. G ,ar l
a. Ths 1icy aid pr z ta3i in this 17.2’ do ict t arty d4rts,
sithar . tarttivs or pr . *l, for b2.s by arty party r x irq an ai .for nt
actia br 4 t by sithar a exry or by tha tJhit Stat . visti or vsriar * fr
t s vi i i rct titit. * dsfsr m for violators or athazs
with arty fo i acti t.
B. Thu agx rIt shall ta .ifact ta (10) days a.ftsr ti data of ths last
siçattrs aid v i i i tiria, w*.il iti or rsvo a by a ..sm -it of sr of
tha paxti or til revokad by ar party a1 i writt rcti .
1 rath a.
t t nt Q aOf qir xs
D ict r
n B. frid

U.S. wir ital Patia% y
, Pm r y1vsnia
/4 4i q O
I
c a.
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2.4 .
IV. RELATED MATrERS
A. Jsuer genCy Açeem nL. The 4 & y and EPA are encouraged to enter into
interagency agreements with other federal, state, tribal and Io l agencies which win
provide assistance to the Corps and EPA in pursuit of Section 404 enforcement
activities. For example, the preliminary enforcement site irtvest. gatzoos or post-case
monitoring activities required to ensure compliance with any enforcement order n be
delegated to third parties (e.g FWS) who agree to assist Corps/EPA in compliance
efforts. However, only the Corps or EPA may make a violation determination and/or
pursue art appropriate enforcement response based upon information received from a
third party.
B. Corps/EPA Field Agreemeiux. Corps DMsion or District offices and their
respective EPA Regional offices are encouraged to enter into field level agreements to
more spccifi illy implement the provisions of this MOA
C. Data Information Exchange. Data which would enhance either agency’s
enforcement efforts should be exchanged between the Corps and EPA where available.
At a minimum, each agency shall begin to develop a computerized data list of persona
receiving ATF permits or that have been subject to a Section 404 enforcement action
subsequent to February 4, 1987 (enactment date of the 1987 Clean Water Act
Amendments) in order to provide hi toric l compliance data on persons found to have
illeg illy discharged. Such information will help in an administrative penalty action to
evaluate the statutory factor concerning history of a violator and will help to determine
whether pursuit of a crimin il action is appropriate.
V. GENERAL
A. The procedures arid responsibilities of each agency specified in this MOA may
he delegated to subordinates consistent with established agency paocedures.
B. The policy arid procedures contained within this MOA do not create any rights,
either substantive or procedural, enforceable by any party regarding an enforcement
action brought by either agency or by the U.S. De 1atiou or variance from these MOA.
procedures will not constitute a defense for violators or others concerned with any
Section 404 enforcement action. -
C. Nothing in thiz document is intended to diminish, modify or otherwise affict
the statutory or reguiatory authorities of either agency. All formal guidance interpreting
this MOA shaU be issued jointly.
S
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2 -7
• D. This zgr cement haU take effect 60 days after the date of the last sigrtature
below jt4 will continue in effect for five years unless e tendcd, modified or revoked by
agreement of both parties., or revoked by either party alone upon six months wr ne
DoticC, prior to that umc.
P ( ‘i A .Lc q1 J .ii ii
(Date)
. istant Secretaty of
the Army (Civil Works)
1,-f __
(b )
Rebecca W. Haumer
Actmg Auistarn Mminlstritor
for Water
U.S. Environmental Protection Agency
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CORPS/F -PA ENFORCI.MF h7 ?RXZ.DUP S
FOA SEC7ION 404 Uh?F-RMJT7ZD )‘70L4TIONS
VIOLATION REPORTED TO OR
DETECTED BY THE CORPS OR EPA
NO IOU IN’VOLYZII
A. A WATER OF THE U.S. AND
B. A SECTION 404 DISCHARGE AND
I C. A K UUPERJ4IDTED ACTIVITY AND
0. AN ACTIVITY NOT EXEMPTED
BY SECTION 404(f)
$0 I
LV 101uulTb0N ] YES
IWVZ8TIG A?IO$ YES
ACTIVITY REQUIRES!
A. I)’O’IEDIATE ACTION OR
3. INITIAL CORRECTIVE )‘IEASTJRZS
______ ‘P____
NO 1 N”v’ESTIGA?ING AGZNC l
ISSUES C&D/AO (copy I
to other agency) ]
LEAD AGENCY $!LECTIO)I”
ACTIVITY INVOLVES ONE OF THE TOU.OWI G:
Yes A. REPEAT VIOLATOR NO
— 3. FLAGRANT VXOLJTOR(i.I., obvious prior
knowledge)
C. EPA REQUEST THE CASE OR
0. CORPS RECOPQ’(ZNDS ADMINISTRATIVE PENALTY
_____________________ ‘ p
[ EPA TOLL WS CWA I T cous rou. ws
3!C IOK 309 PROCEDURES] 33 CFR 326 PROCEDURES
• enforcement procedures for permit condition violation cases
are set forth at Part 111.0.3. and 111.0.4.
C. Procedures for investigating unpermitted activity cases are
set forth at Part 111.3.
• • Examples of situations in which U & • might arise
include cases ithich are important due to deterrent value,
due to the violatiofl occurring in a critical priority
resource or in an advanced id. tifiC$ttOfl area,. involving
an uncooperative individual, etc.
- 7
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22
FIELD LEVEL AGREEMENT
BETWEEN THE U.S. ARMY CORPS OF ENGINEERS.
NEW ENGLAND DIVISION AND THE U.S. ENVIRONMENTAL
PROTECTION AGENCY, REGION I CONCERNING ENFORCEMENT
UNDER SECTION 404 OF THE CLEAN WATER ACT
I. Purpose, Scone arid Authority
A. Purpose
The January 19, 1989 Memorandum of Agreement (MOA) between
the Department of Army and the U.S. Environmental Protection
Agency (EPA) concerning enforcement for the section 404 program
of the Clean Water Act (CWA) encourages Corps of Engineers
(Corps) Districts/Divisions and EPA Regional offices to enter
into field level agreements (see Attacrirnent). The New England
Division (NED) of the Corps and EPA Region I hereby establish
policy and procedures to undertake enforcement of section 404.
Th:s Field Level Agreement (FLA) complements the January 19, 1989
National Enforcement MOA. This FLA enables NED and Region I to
strengthen enforcement of section 404 by using the expertise,
nit ative and resources of both agencies in a more effective and
efficient manner :o achieve the goals of the CWA.
B. Scope
Th s FLA enccr passes the six New England states, ,ihich
comprise both EPA Region I and New England Division. EPA Region
I will fulfill it responsibilities under this FLA, in part,
througn an Interagency Agreement (tAG) with U.S. Fish and
Wildlife Service (FWS) Region 5 for enforcement support. The
EPA/FWS LAG authorizes FWS field office staff located in Concord,
New Hampshire to act as authorized field representatives of
Region I for enforcement investigations in the states of Vermont,
.ew : ampsn :e, - .:aine.
C. Author:ty
The Corps and EPA have enforcement authorities for the
section 404 program as provided in sections 301(a), 308, 309,
404(n), and 404(s) of the CWA. Nothing in this FLA is intended
to modify, diminish, or otherwise affect the policies and
procedures established in the National Enforcement MOA,
referenced above.
It. Polici
A. Lead Enforcement Agency
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dJo —-
1. pursuant to section III.D.1(a-d) of the National
Enforcement MOA, Region I will continue to actas the lead
enforcement agency for the categories ofunperinitted discharges
described.
2. In addition, Region I will act as lead enforcement agency
for unpermitted discharges which:
(a) involve or are related to agricultural or sii.vicultural
operations;
(b) occur in geographic areas where we completed an advance
-identification or 404(c) action;
(c) involve or are related to EPA—funded municipal facility
projects; -ändT
(d) fall within our responsibility under the EPA/Army
Definition of Fill MOA (i.e.-, solid waste cases).
3. NED will act as lead enforcement agency for all other
unpermitted discharges. -
4. Lead enforcement agency status for unpermitted discharges
which may also involve a violation of section 10 of the Rivers
and Harbors Act of 1899 will be determined by NED and Region I on
a case specific basis.
5. This agreement does not preclude either agency from
requesting lead agency status for a particular investigation even
though the case may not fall within their normal categorical
responsibilities described above. Each agency agrees to
coordinate closely on such matters prior to taking any
enforcement action. -
B. Field Investigations
NED and Region I will conduct routine field investigations
of unpermitted discharges and prepare field reports in accordance
with established enforcement procedures. tf one agency discovers
an unpermitted discharge falling within the other’s categorical
responsibilities the discovering agency will collect the
preliminary field information necessary to document the existence
of the violation and may verbally notify the violator to cease
and desist further unpermitt ed discharges in waters of the U.S.
If resources or time do not allow for the collection of
sufficient preliminary field information, the discovering agency
will document, at a minimum, the location and nature of the
violation, as well as any other information readily accessible.
In either case, this preliminarY field report will be transferred
expeditiously to the lead agency for appropriate follow-up
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L. I
action.
III. Coordination
A. Information Exchange
NED and Region c.. iii coordinate closely to maintain an
effective and efficient section 404 enforcement program. Each
agency will copy the other on all official correspondence, and
exchange file information as requested and able. Among other
things, monthly or quarterly enforcement case tracking system
reports will be exchanged.
I V. General
A. The policy and procedures contained in this FLA do not
create any rights, either substantive or procedural, enforceable
by any party regarding an enforcement action brought by either
agency or by the United States. Deviation or variance from these
FLA procedures shall not constitute a defense for v olators or
others concerned with any section 404 enforcement acti.on.
B. Nothing in this document is intended to diminish, modify
or otherwise affect the statutory or regulatory authorities of
NED or Region I.
C. This agreement shall take effect seven (7) days after the
date of the last signature below. Any modifications to the FLA
shall be made :olntly. This agreement ‘.ay be terminated by
either agency upon fourteen (14) days wr:tten notice.
Daniel M. Wilson Date
Colonel, Division Engineer
New England Division
U.S. Army Corps of Engineers
Julie Belaga Date
Regional Administrator
U.S. EPA Region I
Attachment
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___ —-
ATTACHED SCOPE OF WORK FOR
FWS FIELD OFFICE ENFORCEMENT ASSISTANCE lAG
PURPOSE: This lAG will improve the administration of the section
404 enforcement program in northern New England (Vermont, New
Hampshire, Maine) by providing field level cooperation between U.S.
EPA Region I (EPA) and U.S. Fish and Wildlife Service Field Office,
Concord, New Hampshire (FWS). FWS Field Office Enforcement
Assistance will provide site specific and generic technical and
programmatic assistance to EPA Region I for the administration of
section 404 enforcement program regulatory responsibilities. This
includes, but is not limited to, notifying EPA of suspected section
404 violations, conducting site inspections, and recommending
appropriate responses to remedy unpermitted wetland filling.
SCOPE OF WORK: Upon written request of the EPA Region I
Enforcement Coordinator (Coordinator) or in response to complaints
received from other sources, the FWS will initiate investigations
of reported unpermitted wetland filling in northern New England.
The FWS will document all enforcement field inspections using the
form entitled “Initial Field Inspection Report for Unpermitted
Discharges.” Field inspection reports will contain, among other
things:
a) site ownership/control information (as precise as
possible);
b) locus map and site sketch;
c) affected habitat and species description;
d) an approximation of fill dimensions and area of impact;
and,
e) labeled site photographs.
The FWS will contact the U.S. Army Corps of Engineers, New England
Division and the appropriate state and local agencies to ascertain
enforcement and/or permit actions that may be underway. The FWS
will consult with the EPA Enforcement Coordinator in deciding
appropriate follow-up action.
As appropriate, field inspection reports may include a draft
section 308(a) information request letter, draft section 309(a)
Administrative Order, or draft section 309(g) Administrative
Penalty Complaint. Model letters, Orders and Complaints will be
supplied to the FWS by the Coordinator.
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33
The FWS will attend monthly meetings to:
a) submit copies of all field inspection reports for the prior
month;
b) submit a brief summary report on the status of each major
enforcement investigation/action underway; and,
c) discuss follow—up activities for all investigations and
actions underway.
In deciding on follow-up activities for all cases referred to EPA
or for providing comments on submitted draft letters, orders or
complaints, the Coordinator will respond to the FWS no later than
the following monthly meeting.
In addition, assistance provided by the FWS shall include, but not
be limited to, the following functions:
o Providing technical support to, and coordinating with,
technical specialists, legal staff, and managers within EPA
Region I, within other Federal, state and local agencies, and
within private industry on matters relating to section 404
enforcement cases;
o Representing EPA in contacts with parties responsible for
section 404 violations;
o Participating lfl technical negotiations with parties
responsible for section 404 violations. Preparing
recommendations for action, providing technical assistance to
legal staff for case preparation, and when necessary serving
as a Federal government witness at administrative hearings and
judicial trials. With assistance from the Coordinator, the
FWS will ensure that adequate technical documentation is
obtained to support enforcement actions or to serve as
evidence in administrative or judicial litigation;
o overseeing and reporting to the Coordinator on the status of
removal and restoration efforts required of violators by EPA
administratiVe actions or judicial orders; and,
o Maintaining the high level of scientific quality and
programmatic consistency required in section 404 enforcement
cases.
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234
DEFINITIONS: “Technical Assistance” shall include, but is not
limited to, wetlands classification and mapping, wetland function
and value assessments, faunal and floral surveys, on-site and
aerial photographic analyses/interpretations, cumulative impact and
trend assessments, fish and wildlife inventories, descriptions of
habitat and community ecological relationships, and restoration!
mitigation plan evaluations.
JURISDICTIONAL DETERMINATIONS: At the request of the Coordinator,
the FWS shall provide site specific or generic technical assistance
to EPA for determiflatiOnS of the limits of section 404
jurisdiction.
TRAINING: The Coordinator will provide field level and
programmatic enforcement training to the FWS in the underlying
Clean Water Act enforcement authorities; standard investigatory
practices; reporting requirements; follow-up actions; and other
skills/expertise to effectively carry out the duties described
above.
FWS PROJECT MANAGER:
Gordon Beckett, Supervisor
USFWS Field Office
Ralph Pill Marketplace
22 Bridge Street
Concord, NH 03301-4901
FTS 834—4411
EPA ENFORCEMENT COORDINATOR:
Matthew Schweisberg
Wetland Protection Section
USEPA Region I
JFK Federal Building
Boston, MA 02203
FTS 835—4431
INDEPENDENT AUThORITIES: Nothing ifl the Agreement diminishes or
otherwise effects the independent authority or coordination
responsibility of each Agency in administration of the section 404
program, the Fish and Wildlife Coordination Act, or other
applicable statutes.
All written correspondence, meetings, and reporting shall be
arranged with or directed to the FWS Project Manager and EPA
Enforcement Coordinator. In addition, all written correspondence
and monthly status reports shall be copied to:
Ralph Pisapia
Assistant Regional Director
USFWS Region 5
One Gateway Center, Suite 700
Newton Corner, MA 02158
Ronald ManfredorLia, Chief
Water Quality Branch
USEPA Region I
JFK Federal Building
Boston, MA 02203
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11-12. Interagency Agreement, FWS (State College Field Office) and EPA (Region 111),
“Assistance in the administration of the Section 404 enforcement program.”
11-13. Interagency Agreement, FWS (Chesapeake Bay Field Office) and EPA (Region
Ill), “Assistance in the administration of the Section 404 enforcement
program.”
11-14. Interagency Agreement, FWS (Cortland Field Office) and EPA (Region II),
“Detail of FWS Personnel to EPA.”
11-15. Local Procedures Agreement, COE (Buffalo District) and EPA (Region II),
“The Cooperative Enforcement of Section 404 of the Clean Water Act.”
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73 C
-------
U
United States Department of the Interior i —
FISH 4 &- D WILDLiFE SERVICE —
One Gateway CenLer, Suite 700 —
Newton Corner, MA 02158
JJN 2 9 gg
Mr. William T. Wisrtjewskj
c/c Mr. Fredrick C. Warren, Chief
Grant Management Section (3PX71)
U.S. Environmental Protection Agency
Region III, 841 Chestnut Building
Philadelphia, Pennsylvania 19107
Dear Mr. Wisnievski:
Enclosed please find one signed original, copy of Interagency Agreement
DIJ 14943616.01.0 for $100,000. This authorizes the U.S. Fish and Wildlife
Service to assist in the administration of the Section 404 enforcement
program. This agreement is to be performed by our Chesapeake 8ay Field Office
in Annapolis, Maryland. Reports detailing the fund status of this project
will be ma e available to your Financial Management Center upon request. If
you have any questions regarding this project, please contact Lori Surabian in
our Fish and Wildlife Enhancement Office at (617) 965-5100, extension 298, FTS
700- 829 9 382
Sincerely yours,
Regiona1 4’ecto ”
Enclosures
Ju , JUL 2 1992
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232’
A’I”TAC ED SCOPE OF WORK
FOR EPA/FWS ENFORCE Nr
lAG
PurDose -
The purpose of this agreement is to enhance the
administration of the Section 404 enforcement program through
field level cooperation between US EPA Region III and US Fish and
Wildlife Service, Annapolis, Maryland. The Fish and Wildlife
Service will inspect reported violations pursuant to Section
301/404 of the Clean Water Act, negotiate voluntary compliance
when violations have been found to occur, and provide site
specific or generic technical and programmatic assistance to EPA
for its administration of the Section 404 enforcement program’s
requlatory responsibilities. This includes assistance for the
review of Section 404 enforcement actions and notifications to
EPA and the Corps of Engineers of suspected Section 404
violations.
Scope of Work
Within those counties of Maryland, Delaware, and Virginia
for which EPA has lead enforcement authority pursuant to the
National MOA between the COE and EPA, and under the Field Level
Memorandum of Agreement between EPA Region III and the
Philadelphia, Baltimore, and Norfolk District Offices of the U.S.
A.rmy Corps of Engineers, P&WS will inspect a minimum of 100
alleged violations reported to the Annapolis Office by EPA, the
state, the public and other public or private individuals or
organizations, or which may otherwise come to the attention of
the Annapolis Office. F&WS will determine if a violation has
occurred through accepted techniques for establishing
jurisdiction, quantify the extent of the violation, assess the
impact of the action on the environment, assess the culpability
of the violator, and negotiate for voluntary compliance (i.e.
restoration) with the responsible party(ies) when violations have
been found to occur. F&WS shall document all actions taken
regarding jurisdictional determinations, impacts, and compliance
efforts undertaken, as each violation may ultimately be subject
to EPA administrative action or litigation.
Within one month of determining that a violation has
-occurred, F&WS will attempt to achieve voluntary compliance with
the responsible party. Should voluntary compliance not be
negotiated, FWS will notify EPA of the Section 404—related
violation of the Clean Water Act at monthly coordination meetings
to be held on an alternating basis at the Annapolis F&WS office
and the Philadelp iia EPA office. The EPA viii coordinat, such
referrals with the U.S. Army Corps of Engineers and the
appropriate State agency to ascertain enforcement or remedial
actions that may be underway and also to determine whether an
after-the—fact permit may be appropriate and should be accepted.
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1 ’
EPA will, in consultation with FWS, exercise its discretiort to
initiate enforcement action in those cases that are either
insufficiently resolved or are not addressed by other agencies.
All FWS referrals shall normally contain: a) exact site
ownershiP informati0T b) site location map; c) affected habitat
and species description; a) a quantification of fill dimensions;
a) ia-baled site photographs; f)a wetland jurisdictional
determination, including all data sheets used in making a
jurisdictional determination and g) all information necessary for
EPA to prepare a draft AdministratiVe order, penalty Complaint,
or Section 308 letter. Assistance to be provided by FWS shall
include but not limited to the following functions:
.providing technical assistance to, and coordinating with,
technical specialists, legal staff, and managers within the EPA
Region, within other Federal agencies, State and local
governmentS and within private industry on matters relating to
wetlands jurisdictional wetlands restoration, and Section 404
enforcement issues.
.RepreSefltiflg EPA in contacts with parties responsible for
Section 404 violations. This may occur in stressful or hostile
conditions requiring tact and diplomacy of the highest order in
representing EPA’S viewpoint.
• participating in technical negotiations with parties
responsible for Section 404 violations, Preparing
recommendations for action, providing technical assistance to
legals aff in case preparation, and when required serving as a
government witness at hearings. FWS representatives should
insure that adequate technical documentation is obtained to
support enforcement actions or to serve as evidence in litigation
actions. This may involve coordination with EPA regarding the
number and types of field samples, and method of sampling and
analysis.
.overseeing and reporting to EPA on the status of efforts in
cases where responsible parties assume the restoration duties to
assure that remedial actions are completed in accordance with EPA
Administrative Order or Consent Agreements.
•Developing and participating in public outreach activities
aimed at creasing the efficiency of the Section 404 enforcement
program in Maryland and Delaware, and furthering the intent of
the lAG. Such activities may include, but ar. not limited to,
developing appropriate outreach materials; speaking to
professionals environmental, and other interest groups; and
organizing a wetland watch network of volunteers to report
unauthorized fill. activity.
yws representative shall be responsible for maintaining the
highest level of scientific quality and programmatic consistency
required at section 404 enforcement sites.
-------
24O
On a quarterly basis, F&WS will provide EPA with a report
detailing the number of inspections undertaken in that quarter,
the number of violations found, the number of violations that
have been resolved through voluntary compliance, the acreage of
wetlands or other waters of the U.S. restored through voluntary
compliance, and the number of cases referred to EPA.
Definitions
Technical Assistance includes, but is not limited to
jurisdictional determinations, wetlands classification and
mapping, faunal and floral surveys, on—site arid aerial
photography analyses, water quality analyses, cumulative impact
and trend analyses, HIP studies, wildlif, and fishery
inventories, description of habitat and community ecological
relationships, endangered species determinations, wetland data
base retrievals, and mitigation assessments.
Jurisdiction
Prior to taking any action, FWS will undertake site specific
analysis to determine limits of jurisdiction of regulated .Section
404 waters.
IndeDendent Authorities
Nothing in th.i Agreement diminishes the independent
authority or coordination responsibility of each agency in
administration of the Section 404 program, the Fish and Wildlife
Coordination Act and other pertinent statues.
Effective Date
This Agreement becomes effective upon approval by both FWS
and EPA.
-------
• 24(
TIJa
United States Department of the Interior
FISH AND WU.DLIFt SERVICE
One Gateway Cen r, Suite 700 — u
Newton Comer, MA 02158
t4 .A’ ’ 2 1 1°°
Mr. Willia.m T. Wisniewski
c/c Mr. Fredrick C. Warren, Chief
Crant Management Section (3PM7 1)
U.S. Environmental Protection Agency
Region III , 841 Chestnut Building
Philadelphia, PenrLsylvartia 19107
Dear Mr. Wisnievski:
Enclosed please find one signed origiital copy of Interagency Agreement
DW 14943610-01.0 for $100,000. This authorizes the U.S. Fish and Wildlife
Service to assist in the a inistration of the Section 404 enforcement
program. This agreement is to be performed by our State College Field Office
in State College, Pennsylvania. cailing the fund status of this
project will be made available to your Fi ncia1 M.anagemenr Center upon
request. If you have any qu.stionz r.garding thi. project, pleas. contact
Anastacia Rodriguez in our Fish and Wildlife Enhancement Offic. at
(617) 965-5100, extension 298. FTS 829-9332.
Si ere1y yours,
ACtI Ragjona]. Director
Enclosures
EC iVED
JUN 1 92
L*NØS P O1IC1*I MAY 2 8 92
£ 1 3 S42 E. P. A RS Qe UI
Grs to Ige SA%
-------
z4 2 -
ATTACBED SCOPE OF WORE
FOR EPA/FWS ENFORCE? NT
lAG
ir ose
The purpose of this agreement is to enhance the
administration of the Section 404 enforcement program through
field level cooperation between US EPA Region iii and US Fish and
wildlife service, State College, pennsylvania. The Fish and
wildlife Service viii inspect repoFted violations pursuant to
Section 301/404 of the Clean Water Act, negotiate voluntarY
compliance when violations have been found to occur, and provide
site specific or generic technical and programmatic assistance to
EPA for its administration of the Section 404 enforcement
program’s regulatorY responsibilities. This includes assistance
for the review of section 404 enforcement actions and
notifications to EPA and the Corps of Engineers of suspected
Section 404 violations.
Scope of Work
Within those counties of Pennsylvania for which EPA has lead
enforcement authority pursuant to the National MOA between the
COE and EPA, and under the Field Level Memorandum of Agreement
between EPA Region III and the Philadelphia and Baltimore
District Offices of the u.s. Army Corps of Engineers, F&WS will
inspect a minimum of 100 alleged violations reported to the State
College Office by EPA, the state, the public and other public or
private individuals or organizations, or which may otherwise come
to the attention of the State College office. F&WS will
determine if a violation has occurred through accepted techniques
for establishing jurisdiction, quantify the extent of the
violation, assess the impact of the action on the environment,
assess the culpability of the violator, and negotiate for
voluntary compliance (i.e. complete restoration) with the
responsible party(ies) when violations have been found to occur.
F&WS shall document all actions taken regarding jurisdictional
determinations, impacts, and compliance efforts undertaken, as
each violation may ultimately be subject to EPA administrative
action or litigation.
Within one month of determining that a violation has
occurred, F&WS will attempt to achieve voluntary compliance with
the responsible party. Should voluntary compliance not be
negotiated, FWS will notify EPA of the Section 404-related
violation of the Clean Water Act at monthly coordination meetings
to be held on an alternating basis at the State College F&WS
office and the Philadelphia EPA office. The EPA will coordinate
such referrals with the u.s. Army Corps of Engineers and the
appropriate State agency to ascertain enforcement or remedial
actions that may be underway and also to determine whether an
after-thefact permit may be appropriate and should be accepted.
-------
24
EPA will, in consultation with FWS, exercise its discretion to
initiate enforcement action in those cases that are either
insufficiently resolved or are not addressed by other agencies.
All FWS referrals shall normally contairt a) exact site
ownershiP information; b) site location map; c) affectea t abitat
and species description; e) a quantific&tiofl of fill dimensions;
e) labeled site photographs; f) a wetland jurisdictional
determination, including all data sheets used in making a
jurisdictional determination and g) all information neceSsarY for
EPA to prepare a draft Administrative Order, penalty Complaint,
or Section 308,letter. Assistance to be provided by FWS shall
include but not limited to the following functions:
.providing technical assistance to, and coordinating with,
technical specialists, legal staff, and managers within the EPA
Region, within other Federal agencies, State and local
governmeflts and within private industry on matters relating to
wetlands jurisdiCtioflal wetlands restoration, and Section 404
enforcement issues.
.RepreSentiT%g EPA in contacts with parties responsible for
Section 404 violations. This may occur in stressful or hostile
conditions requiring tact and diplomacy of the highest order in
representing EPA’S viewpoint.
.participating in technical negotiations with parties
responsible for Section 404 violatiOns, preparing
recommendations for action, providing technical assistance to
legal staff in case preparation 1 and when reguired serving as a
government witness at hearings. FWS representatives should
insure that adequate technical documentation is obtained to
support enforcement actions or to serve as evidence in litigation
actions. This may involve coordination with EPA regarding the
number and types of field samples, and method of sampling and
analysis.
.overseeing and reporting to EPA on the status of efforts in
cases where responsible parties assume the restoration duties to
assure that remedial actions are completed in accordance with EPA
Administrative Order or Consent Agreements.
FWS representative shall be responsible for maintaining the
highest level of scientific quality and programmatic consistency
required at Section enforcement sites.
On a quarterly basis, F&WS will provide EPA with a report
detailing the number of inspections undertaken in that quarter,
the number of violations found, the number of violations that
have been resolved through voluntary compliance, the acreage of
wetlands or other waters of the u.s. restored through voluntary
compliance, and the number of cases referred to EPA.
Deitions
-------
‘,. ‘1-
“TecbfliCal AssistanceN includes, but is not limited to
jurisdiCti0n determinationS, wetlands classification and
mapping, faurtal and floral surveys, on—site and aerial
photography analyses, water quality analyses, cumulative impact
and trend analyses, KEP studies, wildlife and fishery
inventories, description of habitat and community ecological
relationshiPS, endangered species determinations, wetland data
base retrievals, and mitigation assessments.
Jurisdiction
Prior to taking any action, FWS viii undertake site specific
analysis to detcrmine limits of jurisdiction of regulated Section
404 waters.
Independent Authorities
Nothing in this Agreement diminishes the independent
authority or coordination responsibility of each agency in
administration of the Section 404 program, the Fish and Wildlife
Coordi.natiofl Act and other ,ertinent statues.
-tive Date
This Agreement becomes effective U Ort approval by both FWS
and EPA.
-------
ROM:Ep ORP REGION 2
To: 912 2564e254
NOU ffL7. t994 12 .24PM 14 1 P 2
Ot eCt Cb l9stJon/Dsoblr9auon Aint
Qus $60,000
2507
$60,000
ted States En b0flmentai Prc eciron Agency
Washington.
2 EPA Interagency Agreement!
Amendment
£PA tAG tdentilscat or Number
DW1494 1572—01—1
4 Funding L cauort
9’°’ii
2 OthetAgenc tAGlDNumber (irkno )
Program Q1i c —
AbOfe naU 0 r
3TypeofAlion
- Part 1 - Genera) nformatIon
— Administrative Amendment
Meter
S Name and Address of EPA Otganizs.tlon
7 Name and Mdress of Other Agency
U.S. EPA — Region II
U.S. Fish & Wildlife Service — Region V
Marine and Wetlands Protection Branch
I Gateway Center
26 Federal Plaza
Suite 700
New York) New York 10278
Newton Corners, Massachusetts 02158
8. Pro 1 ect T W a
Detail of FWS Personnel to EPA, Region It) MWPB
9 EPA Project Otlic.er (NaA te. Address, T.tsphone Number)
10. Other Agency Project Orficer (Name, Address, Telephone Number)
Daniel Montella 212—264—5170
Len Corln 607—758—9334
FWS Cortland Field Office
EPA Region LI, MWPB
26 Federal Plaza
3817 Luker Road
New York, ew York 10278
Cortland, New York 13045
11. Project P,r od
7. Eucget Penod
April 15, 1990 — April 15, 1995
April 15, 1993 — April 15, 1995
13. Scope or Work (Attach add , ionat sheets, as needed)
This obligates an additional $120,000 to the FWS Cortland Field Office
to fund a liaison to EPA Region II. The liaison will provide technical
assistance for 404—related projects and violations in Upstate New York.
Services provided undet this LAG agreement are extended by this amendment
until April 15, 1995.
A Statement of Work is attached.
14 Statulary AuthorIty for Seth Transfer c i Funds an Project ActivIties 15. Other Ag.ncy Type
CWA Section 404 and the Economy Act of 1932 as amended Federal
(31 USC 1535)
Funds
PrevIous Amount —
AMtoejnt This Autlon
Amended Total
15 EPA Amount -
17. EPA hWQnd Amount
rIflO
S12 0_ 000
S1 O ,0OO
18 Other AO.ncy Amount
19 Other Agency .lGJtg A fl
20. total Proj.etCosi
c i rtr n
ti inn
51 50 .000
21 F scsl lnformencn
Program Element Appropnauà l Qoc. Ccnuot NO.
BCMB2D 93 683(40108 9302XE0097
,93p 683/40108 9302KE0098
Adocunt Number
3BGM02K022
3BML02K022
-------
FROM:EP OP RE rON 2
191 2ø2564 254
NOL) 17. 1994 1 224PM B 1 P. 3
ir Ag.ncys B IlrlQAddrns Aic1u . .ncyLacacon co s
ar$ n Søn d Nur tbe#j
.
Part_ii- Approved_Budget
EPA lAG ai W UoA Number
fl. Bud t Categories
It.mIu Qn of —

C —
nonlzsllon of Total P u
cost to oat.
a) Persorrn.I
S I fl, flOfl
(bJ Fr r e Benefits
( ) T veI -
—
—
( )_EquIpment
(e) Supplies
(f Procur.ment/MsIstan ,i
.
;) Construction
JQth.r
(fl Total Otreot tterQes
$
$
) dir.oi Core__P.esp_- S_BUs_$
) Totsj
(EPA$hsrs 100%) (CtPtsr A .ncy Sitars %)
$120.000
S
23 Is eqijuoment su.,mon sd tø be ene by EPA or t.es.d, purchessO or r.m.d wftrr EPA funds? D
(Identify iii equipment costing $1,000 c c mor•)
4 A . try of thala lurtOs bof Fig agreements? torn Z2f) Yes No
yp of Estrartiwai Agve.m.rn Grent - D Coo erith, Agreement lnc(udes Small Purthas . Ca .t)
ontraolw/FWdpuem 41m• f blown) —
Total Estramurai MiOunt unccc This Prcj
Psr*m Funded by EPA Qt knö )
S
-
Pan III Fundina Methods and BiWnq instructions
F t i. ij Agreement (Nots: EPA Agency Location Code (ALC) U010727)
Olsbijrsirn.m Agreement
Request for rtDa)meftt a? sotual costs must be ftem4z.d a r t SF foal or SF 1O and submitted to the
Fktancisi Msn.g.m.nt Cant.r, EPA. ne nnsU. Oil 45268:
Monthly O. srts,Iy Upon Completion of Work
E ‘tty ccaliabfe br uso by F.demJ sgend.s on or1dng cap Ital fund or wist .op oprists (us fiestIon c i
need lot this type .1 ps enem method. tjltozpsrtdid funds Ii corlipibort OIwOr* will D I returned to
EPA. Ousnerty cost reports will be focos,dsd te The Plnsn al Marwg.ment Center. EPA. Cin nr au.
OH 48 &
( Usia tO V’JIIII( HgitioitaJ Iuthorflv Or $itSISr of function bItWSOrI F,daral agariofis. Most rsoeius
approval by the Chico of the romp oIlv, dgst Olvisleri. Budget Fwnulsbon an Cornroi
Trjiofr. g icn. EPA $4quertvs. Fotw d a opItats reports to flr anc s’ Psxrts
Branch, Rnsrtbea Management ONIslon. PMW. EPA. WWUn tsrt. DC
AQTiamstfl
D Fund agt.em.m H
LJ
0 Jlocadort
If Agency’s 140 dsrtWtcallon Number - EPA Program Our A snee 4der/ResportalbiIIty Canter P4umbef —
Other Agency’s BIWn 9 k svuctions and Frequency
-------
FROM EP OR REGION 2
TO 912 2564 5
NOL ) 17. 1994 12:25PM u I P 4
Part IV - Acceptance Conditions lEP A?4 yr r 41?sr
27 O.r .r& CondrD nI
The Other agency covenants and agrees that It will expeditiously Initiate and complete the pr*ct for which
have been awarded under this agreement.
28 Sp.cJ l Cor øn ons A,t h iOJiII v.. Wn..d.c)
This agreement maybe terminated by either agency upon 60 days advance
written notice.
Funds obligated under this agreement viii cover the salary expense of
the FWS Field Office Liaison through April 15. 1995.
The funding amount include8 sick leave and travel.
Part V. Otter arid Acceptanes
Note: 1) For Furids.out actions, the agreement/amendment must be signed by the other agency official in duplicate
and one original returned to the Grams Administration DMsIon for Headquarters agreements or to the
appropriate EPA Regional lAG administration office within 3 calendar weeks after rbceipi or wtthln any
extension of time as may be granted by EPA. The agreement/amendment must be forwarded to the
address cited In Item 29 after acceptance signature.
Receipt of a written refusal or faflure to return the properly executed document within the prescribed time
may result in the withdrawal of the offer by EPA. Any change to the agreement/amendment by the other
agency subsequent to the document being signed by the EPA Action OffIclaJ. wtiich the Action Official
determines to materially altar the agreement/amendment, shall void the agreement/amendment
2) For Funds-In actions, the other agency wil Initiate the action and forward two ortgLnal
agreements/amendments to the appropriate EPA program office for signature. ThS
agreements/amendments wUI then be forwarded to the appropriate EPA lAG administration office tot
acceptance slgrlatLn on behalf of the EPA. One original copy will be returned to the other agency after
acceptance.
E PA lAG v j vajJ n Offi ff r adtninJiUath u$ sWio.)
EPA P o ram OMo.
o tothnieal u&stene.)
. gasuatio /)4driss
30. sntza on/Aø4tus
U.S. EPA Region I I
U.S. EPA Region II
2OPM—GAB, Rm 1714
Wetlands Protection
Section
16 Federal Plaza
2VM—MWPB
14ev York, NT 10278
26 Federal Plaza
New York, NT 10278
Certification
AJI signers certify that the statements made on this form arid all attachments thereto are true, accurate, arid
complete. Signers acknq A4edge that any knowingly false or misleading statement may be punishable by fine or
imprisonment or both under applicable law.
D.d.loii Oflielal .n B.MJf of the £svilronmsM& Ptut.c on £gonoy P ogrws Office
31. S.Øn i
/L {
Typed Name and lid. iOs*.
Richard t. Caspe, Director
Water Management Division
on B.l alf of 5 Si onmnlel P,otscdon Aoncy
/2-(
/43
gr r e

Typed Name end lid. Ott.
Wt lj,am S . .,Muszynaki
Acting Regional Administrator 2? P’ T
rt2II g Official on 8&ialf of the Other ooncy
1O’l ’l
33 S 9tlyf a V Typid Name in4 IrOl
- to OaldLambertson, Director
1
-------
FROM EPA O A REGION 2 TO 91222564@@54
NOL.J 17 1994 12 2SPM 4 @@1 P @5
INTERAGENCY AGREEMENT
BETWEEN U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION II
AND
U.S. FISH AND WILDLIFE SERVICE, REGION 5
STATEMENT OF WORK
The FWS Liaison to EPA Region ii will provide technical
assistance for 404 related projects and violations in Upstate New
York. “Technical Assistance” includes, but is not limited to,
Wetlands Classification and mapping, fauna], and floral surveys,
on-site and aerial photography analysis, water quality analyses,
fishery inventories, description of habitat and community
ecological relationships endangered species determinations, and
mitigation assessment. Specific tasks will generally fall
within, but not be limited to the following categories:
J irisdjctjonpi Determinations
At the request of EPA, FWS vi ] , ], provide site specific or generic
technical assistance to assist EPA’s determination of the limits
of jurisdiction under the 404 program. At the request of FWS,
EPA will assess any “Special Case” proposals when jurisdictional
determination inconsistencies are documented.
Enforcement
FwS vi],], notify EPA of Suspected Section 404-related violations
of the Clean Water Act. The EPA shall coordinate such referrals
with the U .S. Army Corps of Engineers and the appropriate State
agency to ascertain enforcement or remedial actions that may be
underway. EPA shall, in consultation with FWs, exercise its
discretion to initiate enforcement action in those cases that are
either insufficiently resolved or are not addressed by other
agencies.
A].l FWS referrals shall normally contain a) site ownership
information (if readily available); b) site location map;
C) affected habitat and species description; d) an approximation
of fill dimensions; a) labeled site photographs. When it is
determined that further EPA involvement is necessary, FWS shall
provide technical and field assistance in developing restoration
or compensation plans and site monitoring.
FWS may recommend immediate remedial action or restoration to
suspected Clean Water Act violators. All such recommendations
shall be reported by telephone to EPA within three working days
of the occurrence for EPA’s concurrence, with a written
confirmation to follow immediately.
-------
54 254 NDU 17. 1994 12:26PM 21 P 6
FROMEp REGiON 2 10 912 25
—2—
FWS shall perform compliance inspections relative to all remedial
actions or restoration plans with potential CWA Violators, norma,]
within 30 days or negotiatj 5 . FWS shall report the results of
such inspections to EPA. Those instances where agreed upon
remedial, actions have not been performed shall be documented and
sent to EPA within five working days.
Ma-jor Prolect Reviews
To the extent practical, FWS will provide technical and field
assiStance-to assist EPA in fulfilling its responsibilities to
assure proper utilization of the Section 404(b) (1) guidelines and
Section 404(c) authority, FWS field and technical assistance as
described above will be provided upon EPA request.
In instances where FWS believes that the deposition of dredged of
fill material at a specific site would result in unacceptable
impacts to fish and wildlife resources, the FWS will provide a
technical evaluation of such impact to the Director of the Water
Management Djvj j 0 , EPA Region II, within 30 days of initial
project review.
In determining the appropriateness of Section 404(c) actions, EPA
shall give great weight to the recommendations of FWS when
considering a project potential, to impact fish and wildlife
resources. -
EPA and FWS shall provide to one another advance notification of
decisions to refer projects under 404(q). Technical information
supporting project elevations shall be shared as appropriate.
Upon request of the FWS, EPA will provide technical evaluations
of water quality issues including, asp appropriate, review of
State Section 401 certification actions and other applicable
provisions of EPA water quality standards.
Advanced Identification of Areas Suitable or Unsuitable for
DeDositio of Dredged or Fill Material
FWS and EPA shall consult to determine areas that are candidates
for the Advanced Identification Program. FWS will provide field
and technical support as outlined above to assist in selected
area designation.
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FROM:EPA o REGiON 2 TO:912 @25642 @54 NDLJ 17. j994 12.27PM . @ @1 P @7
LOCAL PROCEDURES AGREEMENT
BETWEEN
THE
U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION II
AND THE
U.S. ARMY ENGINEER DISTRICT, BUFFALO
FOR
THE COOPERATIVE ENFORCEMENT OF SECTION 404 OF THE CLEAN
WATER ACT
1. Purvpse. Scope and Authority .
a. Subsection IV. B. of the National Interagency Agreement
dated January 19, 1989, between the Department of the Army and
the U.S. Environmental Protection Agency (hereafter referred to
as “the National MOA”) establishes certain policies and
procedures that will promote effective enforcement of the
provisions of Section 404 of the Clean Water Act (33 .U.S.C.
Section 1344). The National MOA, in addition to its many other
provisions, encourages the establishment of interagency
enforcement agreements in the field that are aimed at more
effective and efficient use of enforcement resources. In
accordance with the provisions of the National MOA, the U.S.
Environmental Protection Agency (hereafter referred to as the
“EPA”) and the U.S. Army Engineer District, Buffalo (hereafter
referred to as the “Corps”) have entered into this Local
Procedures Agreement (hereafter referred to as the “Agreement”)
to establish field policy that achieves maximum utilization of
available resources for the enforcement of Section 404 of the
Clean Water Act. By establishing the policies and procedures
contained herein it is expected that public knowledge of the
Corps regulatory program and the water resources it protects will
significantly increase and may serve to deter future violations
over the long term.
b. The EPA and the Corps have enforcement authority
pursuant to Sections 301(a), 308, 309, 404(n), and 404(s) of the
Clean Water Act. This Agreement supplements the National MOA and
serves to define in greater detail various policies and
procedures that will promote more effective and efficient
enforcement of Section 404 of the Clean Water Act. Nothing in
this Agreement is intended to diminish, modify, or otherwise
foreclose any of the policies and procedures contained in the
National MOA.
-------
FROtI.EPP ORA REGION 2 yo912g25G4 54 NOL) 17. 1994 12.27PM P. B
c. Under the terms of this Agreement the EPA will fulfill
its enforcement responsibilities discussed within this agreement
with the assistance of, and support from, the U.S. Fish and
Wildlife Service office in Cortland, New York (hereafter referred
to as the “FWS”). The specific details of this arrangement are
set forth in a separate agreement between the EPA and the FWS
(hereafter referred to as the EPA/FWS lAG). The FWS is
authorized to act as the field representative of the EPA on
enforcement actions. The scope of responsibility of the FWS is
limited to the detection, investigation and reporting of
violations of Section 404 of the Clean Water Act within the
geographic area of Cortland and Tompkins Counties in the State of
New York and in other New York State Counties when requested by
the Corps. This geographic area can be modified in size and
location at any time with the mutual consent of both parties.
2. Policy
. General
(1) Except as defined in Subsections (2) (a) (3) and (2)
(a) (4) below, EPA will continue to act as the lead P’ederal
enforcement agency for unpermitted discharges within the
geographic area of New York State that is under the regulatory
control, of the U.S. Army Engineer District, Buffalo. There are
four categories of unpermitted discharges over which the EPA
exercises lead responsibility pursuant to Subsection 111.0.1. of
the National MOA, namely:
(a) repeat violators;
(b) flagrant violators;
(C) instances where EPA requests a particular case or class
of cases; and
(d) cases in which the Corps recommends that an EPA
administrative penalty may be warranted.
(2) Under the provisions of the Agreement the EPA will
additionally serve as the lead agency for all unpermitted
discharges associated with the enforcement of Section 404 of the
Clean Water Act within the county boundaries of Cortland and
Tompkins counties in the State of New York.
-------
Wri: EPA D R REGION 2 To ’912e2564e 54 NOLJ 17. 994 12.29PM P
(3) The Corps will exercise lead surveillance and
enforcement responsibility under Section 404 for all unpermitted
discharges that do not fall into the four categories specified in
Subsection (2) (a) (1) above with the exception of those
occurring in Cortland and Tompkins counties. The Corps will
continue to be the lead enforcement agency for detection and
investigation of discharges occurring as a result of
noncompliance with the terms and conditions of all issued
permits, including those occurring in the counties cited in
Subsection (1) (C) of this Agreement.
(4) Under no circumstances shall the provisions of this
Agreement apply to any unauthorized activity that would otherwise
be regulated by the Corps under Section 10 of the Rivers and
Harbors Act of 1899 (33 U.S.C. 403).
. Investigations
(1) The EPA and the Corps will conduct routine
investigations of reported or detected violations of Section 404
of the Clean Water Act consistent with the responsibilities set
forth in subparagraph 2.a. above., The investigators will prepare
applicable field reports in accordance with established internal
procedures and applicable guidelines and regulations of their
respective agencies. At an appropriate time, the investigative
report will be forwarded to either EPA or the Corps for final
disposition.
(2) If during the course of these investigations, one of
the parties to this Agreement discovers a potential violation in
a category or geographic area which is under the direct
responsibility of the other, the discovering party will
coordinate the complaint with the lead agency. In come instances
the parties may by mutual agreement elect to have the discovering
agency pursue the unpermitted discharge when prompt action is
deemed necessary to protect important public resources or such
results in the more efficient utilization of staff time and
resources.
c. Coordination
(1) In the interest of promoting efficiency and maintaining
consistency with regard to the investigation and dispositiQn of
violations of Section 404 of the Clean Water Act, the EPA will
work closely with the Corps before taking any independent
enforcement action and the ‘WS will work closely with the Corps
before reporting any potential violation to determine if:
-------
FROMEP OR REGION 2 TO912 25G4 54 NOU 17 1994 12:28PM P 1
(a) the observed activity is already permitted or if the
party or parties responsible for the activity have made
application for a Department of the Army permit; or
(b) the observed activity is authorized by a nationwide or
regional permit or is a candidate for such authorization; or
(c) the disposition of the case would be best resolved
through initiation of an after—the—fact application evaluation
process by the Corps: or
(d) it would be more effective and efficient for the Corps
to handle the investigation and subsequent disposition of the
reported violation.
(2) To maintain the best possible level of coordination and
expand the EPA’s field investigation coverage, the FWS field
representative of EPA will spend a minimum of forty percent of
their time supporting the Corps investigator in the Auburn Field
Office. A work activity report will be submitted by the FWS
field representative to the EPA and the Corps on a monthly basis.
(3) To monitor the efficiency of this agreement, the EPA
and the Corps will exchange yearly listings of all enforcement
actions involving the EPA Field Representative, completed during
the preceding year. The report shall at a minimum contain the
following information:
(a) the name and enforcement number of the violator,
(b) location of the violation by latitude/longitude, county
and waterway,
(C) a description of the violation and the resolution
achieved,
(d) the date the violation was detected and subsequently
resolved.
(4) To facilitate evaluation and any necessary
modification of this agreement, semi—annual coordination meetings
will be held with field investigators and appropriate supervisors
from the Corp , FWS and EPA in attendance.
d. Prohibitions
The parties to this Agreement understand and agree that all
legally binding orders to stop work and restore damaged public
resources will be issued by the EPA and/or the Corps exclusively.
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FROMEP ORA EG1ON 2 TO912Ø25G4 54 ND’S) 17 1994 12 29PM P 11
Under the provisions of this Agreement, the FWS action with
regard to violators is limited to the detection, investigation
and reporting of Section 404 violations.
3. General Information
a. The policies and procedures set forth in this Agreement
between the EPA and the Corps do not create any rights, either
substantive or procedural, enforceable by any party in relation
to an enforcement action brought by either agency or by the
United States. Deviation or variation from the MOA procedures
will not constitute a defense for violators or others involved in
or concerned with any enforcement action pursued under Section
404 of the Clean Water Act.
b. This Agreement shall take effect ten (10) days after
the date of the last signature below and will continue until
April 1, 1995 or until modified or revoked by written agreement
or upon 10 days written notice of either party alone.
c. Prior to expiration of this Agreement, but no later
than 30 days before, the Corps and the EPA will meet to discuss
issues relating to the implementation of this Agreement and
determine if it should be modified and/or renewed.
3 ‘%kl J4d(L / g
Walter C# itzke Date
Colonel corps of Engineers
District Commander
Jeanne M. Fox Date
Regional Administrator
U.S. Environmental Protection Agency
Region II
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Ill. WETLAND PROTECTION REGULATORY AUTHORITIES
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hI-i
Department of Defense - Corps of Engineers
33 CFR 320-330 (51 41206, 56 59110)
33 CFR 230 (53 3127)
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59110 Federal Register / Vol. 56, No. 226 I Friday. November 22, 1991 / Rules and Regulations
DEPARTMENT OF DEFENSE
Corps of Engineers, Department of
the Army
t3 CFR Part 330
Final Rule for Nationwide Permit
Program Regulations and issue,
Reissue, and Modify Nationwide
Permits
AGENCY: U.S. Army Corps of Engineers.
DOD.
ACTION: Final rule.
5UMMARY The Corps of Engineers is
hereby amending its nationwide permit
program regulations at 33 CFR part 330.
The amendments will simplify and
rianfy the nationwide permit program
and reduce the effort expended in
egulating activities with minimal
•npacts.
The Corps is also reissuing the
existing nationwide permits. some with
.nodifications. issuing 10 new
twtionwide permits, and adding new
conditions to all of the nationwide
permits.
EFFEC11VE DATE: January 21. 1992.
ADDRESSES Information can be
obtained by writing to: The Chief of
Engineers. U.S. Army Corps of
Engineers. AUN: CECW-OR.
Washington. DC 20314—1000.
FOR FURTHER INFORMATION CONTACT
Mr. Sam Collinson or Mr. John Studt at
(202) 272—1782.
SUPPlEMENTARY INFORMATION On April
10. 1991, the Corps published its
proposed revision to the Nationwide
Permit Program regulations and its
proposal to issue, reissue, and modify
the nationwide permits (50 FR 14598).
The changes were proposed with the
mtentio simplify and clarify the
nationwide permit program and to
reduce the effort expended in regulating
activities with minimal impacts. In
addition, we proposed to reissue the
existing 28 natIonwide permits. some
with modifIcations, to issue 13 new
nationwide permits. to add new
conditions to all of the nationwide
permits. A public hearing on the
proposed rule and nationwide permits
i as held on May 10. 1991, In
Washington. DC. We received over 700
comments in response to the proposed
regulations and there were 17 speakers
at the public hearing. In response to
these comments, we made a number of
revisions to the nationwide permit
program regulations and to the
nationwide permits.
The Corps is restructuring the
regulations governing the nationwide
permit (NWP) program. In addition, the
Corps is adopting changes that will
allow the district engineer (DE)lo assert
a discretionary authority to modify.
suspend, or revoke NWPs for individual
activities, broaden the basis for
asserting discretionary authority to
include all public interest factors;
provide that the DE require an
individual permit whenever he
determines that an activity would have
more than minimal adverse
environmental effects, either
individuaUy or cumulatively, or would
be contrary to the public interest and.
modify the predischarge notification
(PDN) process required by some NWPs.
The Corps is also reissuing the
existing NWPs; issuing 10 new NWPs
modifying some of the existing NWPs.
converting the best management
practices (BMPs) to permit conditions to
increase their enforceability; and.
clarifying recurring questions about the
applicability of some of the NWP5 to
certain situations
Upon the expiration of the NWPs in
five years from their effective date, we
will remove appendix A from the CFR
and issue the NWPs separately from the
regulations governing their use. In this
way. issuance of the NWPs will follow
procedures similar to those for
individual permits and regional general
permits. Until the NIIVPs in appendix A
are removed from the CFR. the proposed
issuance. reissuance. modification, and
revocation of NWPs would be puhIiah d
in the Federal Register concurrent with
regional public notices issued by dlsfrict
engineer’s, to solicit comments and to
provide the opportunity to request a
public hearing. All comments would be
included in the administrative mcord.
and substantive comments addme.ed in
a decision document for each NWP. The
final decisions on the NWPs will be
announced by publication in the Fe’ 1 ” 1
Regimer concurrent with regional public
notices issued by district engineers.
All the changes taken together should
result in an overall Increase in
protection of the aquatic envirient
end an overall decrease in workload.
Any workload savings will be devoted
to more efficient individual permit
evaluation and increased enforcement
and compliance activities.
Discussion of Public Comments and
Changes
General Comments.
Part 330—Nationwide Permit Program
Section 330.1(a)(b)(c): Most
commenters agree that the nationwide
permits are a valuable tool In the
regulatory program. The vast majority of
comments were directed toward the
procedures developed for Implementing
this program. Our responses to the
comments we received are listed in the
appropriate sections of this preamble.
Comments and responses to specific
procedures and terms and conditions
are addressed in the following sections
df this preamble.
Section 330.1(d): We received a
considerable number of comments on
this portion of the proposed regulation.
Many commenters supported our
proposal to allow the Division and
District Engineers to modify, suspend or
revoke nationwide permits on a regional
basis, or on a case-by-case basis for
specific activities where the adverse
environmental effects may be more than
minimal or otherwise warranted by
other factors of the public interest. A
few commenters thought this would lead
to a further expansion of the nationwide
permit program. This was never our
intent. In response to this concern we
have made it clear in the regulation that
the Division and District Engineers can
not expand a nationwide permit but
rather this provision can only be used to
restrict or further limit a nationwide
permit.
Many commenters thought that the
provision to allow the District Engineer
to consider all factors in the public
Interest as well as concerns for the
aquatic environment would overly
restrict the utility of the nationwide
permits. Many of these same
comnienters recommended that we
include an appeal procedure to the
Division Engineer or Chief of Engineers
in those cases where a District or
Division Engineer has asserted
discretionary authority, or that we
should establish standards or a clear
definition of the term “public interest
factors.” We believe that neither of
these are necessary since the public
Interest factors are discussed at length
in the Corps’ regulations at 33 CFR parts
320 and 325. We have full confidence in
each District Engineer’s ability to apply
the public interest factors fairly, since
these factors are routinely considered in
nil individual permit applications.
Further. In those cases where a District
or Division Engineer has asserted
dlscreti ry authority, the proposed
activity would still have an opportunitY
to receive approval through the
individual permit process. However, we
have revised the language of § 330.1(d)
10 clarify that the authority of Division
and District Engineers is limited to
restricting or limiting the use of
nationwide permits where there is
emicem for the environment or other
lactors af the public interest.
.Disaetionary authority is also discussed
a183 CFR 330.4(e) and 330.5.
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Federal Register I Vol 56. No. 228 / Friday . November 22. 1991 f Rules and Regnlations 59111
Section 330.1(e): Many commenters
supported eliminating the natural
resource agencies from the PUN review
process while many others strongly
objected to exclusion of state and
federal agency rei-iew Some felt that
the “resource agencies” have
professionals who are knowledgeable
about local resources and that
eliminating agency comments could
adversely impact wetlands, wildlife and
other aquatic resources Other
commenters Indicated that the Corps is
the most knowledgeable office
conversing impacts from NWPe and is
well equipped to conduct PUN reviews
on its own. A few commenters hiid other
suggestions regarding alternative
..otiflcatlon procedures
We continue to believe that the
existing prediscbarge notification
process (PUN) must be modified
becd use it has become extremely
burdensome and that the natural
resource agencies are generally not
providing substantive, site-specific
comments. Agency comments fr ueiitly
merely cite regulations or policies
governing alternatives analysis and/or
mitigation policy Furthermore, we
believe that the interdisciplinary Corps
regulatory staff is extremely
knowledgeable of resource values and
fully capable of evaluating impacts
resulting from NWP activities Over 70%
(700) of the Corps regulatory personnel.
nationwide, are natural resource
scientists, many with advanced degrees
However, to assure that potential
environmental Impacts are not
overlooked, the Corps is instituting at
the “Notification” general condition
(number 13) a mandatory process
requiring notification of the natural
resource agencies and solicitation of
their comments. DEs are required upon
receipt of a PUN to provide immediately
(e g fax, overnight mail or other
expeditious manner) a copy to the
appropriate offices of the Fish and
Wildlife Service. State natural resource
or water quality agency, EPA, and (if
appropriate) National Marine Fisheries
Service. With the exception of NWP 37,
these agencies will then have 5 calendar
days from the date the material is
transmitted to telephone the DE if they
intend to provide substantive, site-
specific comments. If so contacted by an
agency, the DE will wait an additional
10 calendar days before making a
decision on the PUN. The DE will fully
consider agency comments received
within the specified time frame, but will
provide no response to the resource
agency. Applicants are encouraged to
provide the Corps multiple copies of
PDNs to expedite agency notification
Some commenters Indicated that the
number of PUNs is expanding and that
this fact makes the NWP program more
complex, confusing, and flute-
consuming Other comnienters stated
that the PUN process Will add to the
burden already experienced by Corps
staff Another commenter felt that it
would speed review by reducing the
number of parties Involved.
We agree that the increased number
of PDNs will increase workload for
Corps regulatory staff. However, this
increase will be offset by a reduction in
the number of actions requiring
individual permits, by a simplified PUN
procedure, by eliminating proposed PUN
requirements for two proposed NWPs,
and by eliminating two proposed NWPs
which would have required a PUN.
Many coinmenters supported the 30-
day requirement for a decision on PDNs
However, some felt that a specific time
limit should be established for
requesting additional Information to
complete the notification and several
asked for darificatlon of the information
required for a PUN. A few commeriters
reques ted a 60-day review period.
Another commenter requested that any
decision to take discretionary authority
be in a written letter which provides
specific reasons for the decision
We believe that the language as
adopte4 is reasonable and provides
adequate protection against
unreasonable delays. The provision for
a decision within 30 days has been
retained. The requirements for a PUN
are found in General Condition 13 and
further clarification is not needed
A few commenters indicated that the
requirement for a wetland delineation
on NWPs imposes an unreasonable
burden on applicants and it is the
government’s responsibility to
determine the scope of its jurisdiction
Some commenters stated that the Corps
should provide a delineation within 30
days. if the applicant’s delineation is
disputed. Another commenter
recommended that a delineation report
be submitted with all wetland
delineations furnished by the
prospective permittee. Several
conimenters suggested deleting
reference to the Federal Manual since it
is controversial and has not been
adopted by public notice and comment
for rule making
We agree in principle that determining
jurisdiction is, ultimately, the
government’s responsibility. However,
the Corps does not have the resources to
provide timely wetland delineations in
all cases. Accordingly, the applicant
must submit a wetland delineation to
assure a timely decision. Further, we
disagree that all wetland delineations
submitted to the Corps should include
detailed report. We believe that the
degree of documentation necessary to
review a wetland delineation will be
dependent upon the site conditions of
the property wider review. Further, the
amount of data collection necessary to
prepare a wetland delmeation report is
appropriately discussed in the Federal
Manual. We also disagree with deleting
reference to the Federal Manual, since
we have specifically included the phrase
“or current method being used by the
Corps” to recognize and ensure that the
appropriate method will be utilized if
the current wetland delineation manual
is revised.
Some commenters recommended that
the Corps institute a simple reporting
requirement to provide data necessary
to determine cumulative impacts of
NWPs and whether PUNs should be
required in the future. Another
commenter suggested that PUNs should
be voluntary to allow proponents to
determine applicability of NWPs to their
projects, while others favored adding
PUN requirements to all NWPs.
We disagree that a sini ple reporting
requirement would be successful in
obtaining necessary data for cumulative
impact assessment. We also disagree
with adding PUN requirements to all
NWPs. We believe that neither
approach would be reasonable or
practical, since they add significant
workload requirements to our limited
staff resources and unnecessarily
burden the public with reporting
activities that clearly have only minimal
atherse effects on the environment.
Applicants can request a determination
of the applicability of NWPs at any time
regardless of PUN requirements.
The PUN process is necessary for
certain NWPs and we have retamed it.
where appropriate, to ensure that only
minimal adverse environmental effects
will occur.
A number of coinmenters objected to
the language advising applicants that an
activity may proceed, in most cases,
without notifying the DE because they
fear an increase in unauthorized
activities. Other comrnenters stated that
specific enforcement provisions should
be included In this section to address
the failure of applicants to provide
requt red notification prior to starting the
discharge.
We disagree that advising applicants
that they may proceed, in most cases,
without notifying the DE will increase
the number of unauthorized activities.
This procedure has been in effect since
the NWPs were first issued by the Corps
in 1975 Further, there is no evidence
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59112 Federal Register / Vol. 56. No. 226 I Friday. November 22. 1991 / Rules and Regulations
that this has resulted in a substantial
number of unauthorized activities. We
agree. however, that language should be
included in 330.1(c) which addresses
failure to provide timely and accurate
notification. This Section has been
amended to specifically allow the DE
the discretion to authorize a discharge
after-the-fact, after considering whether
the failure to provide notification was
knowing or intentional or other
indications of the need for a penalty.
A few commenters suggested that
§ 330.4(c)(6) and 330.4(d)(6) be modified
to require that the 30 day notification
period begin when the notification is
submitted rather than after Section 401
certification or coastal zone
management consistency is received. An
NWP decision would then be
conditional upon receipt of the
appropriate state determination
We agree with this approach. The
denial of Section 401 certification or
coastal zone management consistency
results in denial of authorization under
NWPs without prejudice until the state
has provided an Individual certification
or consistency determination
concurrence. The Corps will begin and
complete its review of a PDN within 30
days and notify the prospective
permittee that the proposed activity
qualifies for the NWP. is denied without
prejudice, and will be authorized when
the prospective permittee furnishes the
Corps with an individual 401 water
quality certification or waiver and/or
with a CZM consistency concurrence or
presumed concurrence. Sections
330.4(c)(6) and 330.4(d)(6) are being
adopted accordingly.
Section 330.1(1 ): A few commenters
objected to requiring the DE to review
all incoming applications to determine if
they comply with a nationwide permit.
However, this procedure is currently a
routine aspect of the DE’s review of an
application package for completeness.
Furthermore, it is unreasonable to
require an applicant to proceed through
the individual permit process where the
activity can be appropriately authorized
by a general permit
As such, we have retained the
language of this section.
Section 330.1(g): We received no
substantive comments on this section,
and we have retained the language as
proposed.
Section 330.2(a): Several commenters
requested that we define the term
“public interest factors”. We believe this
term Is sufficiently described at 33 CFR
320.4. In addition, a few commenters
recommended that we include a
definition of “ordinary high water” in
this section. This term is currently
defined at 33 CFR 328.3(e) and is
applicable to this part. Therefore, we
have not included a definition of that
term in this section.
Several commenters requested that
we define the term “minimal” as used in
the context of the regulatory program.
The word “minimal” is not defined
anywhere within the regulatory
program. The determination of
“minimal” adverse environmental
effects is left to the discretion of the DE.
The District represents the most
knowledgeable office concerning the
aquatic resources within that particular
region. and the DE is therefore the most
capable of assessing relative impacts
that would result from activities
authorized under the NWP program.
Each District is unique in regard to its
aquatic resources and the effect of
regulated activities. As such, what
constitutes minimal adverse
environmental effects can vary
significantly from state to state, county
to county, watershed to watershed as
well as district to district. Obviously, the
factors utilized by the DE in the decision
making process must be evaluated
based upon the environmental setting of
the Distnct and the project itself. Given
this variability, the term “minimal”
would be difficult to define with any
utility on a nationwide basis
Section 330.2(b) Nationwide Permit:
We received no substantive comments
on this section. We have retained the
language as proposed.
Section 330.2(c) Authorization: A few
commenters favored the procedures in
the regulation for written verification of
NWP compliance: however, they
recommended that the notification
procedure at 330.1(e) be modified to
include a requirement for a response
from the DE within 30 days. A few
commenters suggested that this
verification of compliance with the
terms and conditions of all NWPs
should be mandatory. We have not
included this requirement for all NWPs,
since we believe it is unnecessary.
Furthermore, this recommendation
would defeat the purpose of the NWP
program, which is to reduce the effort
expended In regulating activities with
minimal adverse environmental effects.
One commenter referred to the addition
of activity-specific conditions or
regional conditions as being the
equivalent of discretionary authority.
This is correct, and we agree with this
conclusion. Regional or project specific
conditions can be added by a Division
or District Engineer to ensure
compliance with the terms and
conditions of an NWP or to assure that
the adverse environmental effects both
Individually and cumulatively are
minimal (see 33 CFR 330 5(c)&(d) and 33
CFR 330.6(a)).
Section 330.2(d) Headwaters Some
commenters from the Southwestern
United States expressed concern that
the current and proposed definition of
headwaters does not adequately protect
ephemeral and intermittent waters
Among these commenters there was
confusion as to whether the
establishment of five cubic feet per
second (5 cfs) for 50 percent of the time
represented when a dry stream is
flowing or on an annual basis. A
recommendation was made to calculate
headwaters during those periods when
flow Is occurring, and not on an annual
basis. This option for the District
Engineer was adopted on July 19, 1977,
to allow the DE to establish the
demarcation point for the headwaters
based on the median rather than the
average flow. A median flow of five
cubic feet per second means that 50% of
the time the flow is greater than five
cubic feet per second and 50% of the
time the flow is less than this value. This
approach was added to recognize that
streams with highly irregular flows, such
as those occurring in the western
portion of the country, could be dry at
the “headwaters” point for most of the
year and still average, on an annual
basis, a flow of five cubic feet per
second because of high volumes, flash
flood type flows which greatly distort
the average. Furthermore, we recognize
that using the median flow for an entire
year in streams that have no stream
flow for over half the year but with
flows greater than 5 cfs for several
months would also distort the average
Accordingly. we have modified the
wording under the definition of
headwaters to clarify the intent of the
headwaters calculation for such streams
is to be based on the median flow, but
including a provision that the median be
based on the six wettest months (they
do not have to be consecutive) to more
realistically represent the headwaters.
In addition, regarding the concern
expressed over the protection of
ephemeral and intermittent streams we
encourage District and Division
Engineers, where Individual and
cumulative adverse environmental
effects would be more than minimal, to
exercise discretionary authority to
require individual permits and thereby
effectively move the point for
authorization by NWP 28 upstream of
the 5 cfs point. It should also be noted
that precision is not required in
establishing the five cubic feet per
second point. The definition allows the
DE to use approximate means to
compute it. The drainage area that will
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Federal Register / VoL 56 No. 226 / Friday. November 22. 1991 / Rules and Regulations 59113
contribute an a rage annual flow of
five cubic per second can be estimated
by approximating the proportion of the
average annual precipitation that is
expected to find its way into the stream
I laying the area that wall produce this
flow, the five cubic feet per second point
can be approximated from drainage area
maps.
As stated in the definition found at
§ 330.2(d), headwaters are those waters.
including adjacent wetlands, upstream
of the point on the river or stream (i.e. a
surface tributary) at which the average
annual flow Is less than 5 cubic feet per
second (S cfs).
A surface tributary system may
consist of either. a.) defined channel or
dendritic (tree-like, branching)
arrangement of channels with adjacent
wetlands, orb.) part of a large
continuum of waters or wetlands. In
tributary systems where there exists one
or more defined channels, any wetlands
which are not isolated should be
considered adjacent to the
waterbody(s). In these cases, the
determining factor as to which of the
waterbodies the wetland should be
considered adjacent to should be the
level of influence between the
waterbody and the adjacent wetland
The waterbody which has the greatest
hydrologic Influence or exchange with
the wetland is the one to which it is
considered adjacent
In systems where there is a broad
continuum of wetlands, all are
considered adjacent to the major
waterbody to which it is contiguous.
This type of broad system should not be
dissected for purposes of determining
where the 5 cfa point does or does not
exist as it Is all hydrologically and
ecologically part of the same system and
shculd be treated as a whole. Where
linear wetlands with defined stream
channels connect to a stream of greater
than 5 cfs or to a broad continuum of
wetlands adjacent to a stream of greater
than 5 cfs, the portion of the linear
wetlands that are to be considered
headwaters Is that portion which has
the greatest influence or exchange with
the defined strewn channel upstream of
the5cfspoint.
Section 330.2(e) Isolated Waters: Two
commenters recommended that we
establish a distance limit for adjacency.
We believe that this would be an
unreasonable approach due to the
potential variability of the factors
utilized in establishing adjacency for
each individual project such as man-
made barriers and natural river berms.
Some commenters recommended that
the term “interstate waters or” be
included within the definition of isolated
waters to be consistent with the current
definition. We agree with this
sacommenda lion. Furthermore, we
believe our proposal was not entirely
clear in defining isolated waters.
Accordingly, we have not adopted the
proposed definition of the term “isolated
waters”. Instead, we have decided to
retain the existing definition, which does
include the phrase “interstate waters
or”. However, we did further clarify the
existing definition to more dearly state
what we intended in the proposed rule.
For the purposes of NWP 26. we have
defined isolated waters to be waters of
the United States that are not part of a
“surface tributary system to interstate
waters or navigable waters of the
United States. A surface tributary
system includes the waterbody itself, as
well as any waters of the United States,
including wetlands, that are adjacent to
the waterbody. Adjacent wetlands
include those that are separated from
the river, stream, or other waterbody by
man-made or natural bathers such as
dikes, roads, river beims, or beach
dunes. Thus. a waterof the United
States is isolated only when it meets the
following conditions: it is nontidal, not
part of an interstate or navigable waler
or tributary thereof, and not adjacent to
such waters.
Section 330.2(f) Filled Area: Some
commenters appear to have
misinterpreted the intent of this
definition, particularly in regard to
pipeline installation. They interpret the
phrase ‘elimmate or cover” to imply
permanency, and this may lead to
misapplication of the definition to
pipeline projects where fill is only
temporarily sidecast. A filled area which
is eliminated or covered as a direct
result of a discharge, whether
permanent or temporary, is the focus of
the jurisdictional determination. In the
case of pipeline installation in a section
404 water, the filled area is the wetland
or water covered by utility line backfill
or bedding material and the area
covered by the temporary sidecasting of
trench material. We have carefully
considered all comments we received
concerning this section. and have
determined that the language is
sufficiently clear and appropriate
Accordingly, we have retained the
language as proposed.
Section 330.2(g) Discretionary
authority: Two commenters requested
clarification of the term “modification”.
within the context of discretionary
authority, to clarify that modification
results an additional conditioning of the
permit making it more restrictive.
Although we never intended the
language found at Section 330.1 to allow
expansion of NWP coverage, we have
added language to clarify this term (See
section 330.1(d)).
Section 330.2(h) Terms and cq
We received no substantive cod
on this section and have retaine
language as proposed.
Currently serviceable (proposed at
section 330.2(i)): Several commenters
requested clai’iflcation of the two-year
limit expressed In NWP 3. We have
decided to delete this definition since
the term is only applicable to NWP 3,
and we believe that It Is sufficiently
defined within the text of that NWP.
Additionally, the language within NWP
3 has been reworded to cianfy the
phrase “two years”, as It applies to that
NWP.
Section 330.2(i) Single and complete
project (proposed at section 330.2(jfl
One commenter objected to the
statement that multiple crossings of the
same waterbody could be considered a
single arid complete project, aid further
that all the crossings should be totaled
to determine the affected acreage for
compliance with the NWP. Some
commenters fe1t the definition of single
and complete was biased against large
scale development. They recommended
that we allow districts to develop
separate guidelines for large scale
projects which would define separate
sections or phases of a developir’ ’ ‘s
single and complete. provided 1
a separate time schedule for
development, consisted of at leai,
acres of land, and did not impact the
same headwater or Isolated water more
than once. A recommendation was also
made to develop an acceptable ratio
calculation on the acreage filled to the
project acreage. These
recommendations were determined to
be unreasonable, due to the variability
in the quantity and quality of aquatic
resources between regions and
individual projects. Many commenters
objected to the definition of single and
complete, particularly as It pertains to
linear projects. The basis for their
objections involved the potential for
cumulative adverse environmental -
effects associated with multiple
crossings along a single waterway or
wetland, resulting in a cumulative loss
of habitat and wetland fragmentation.
Suggested recommendations to
eliminate cinnulative impacts under the
NWP included deleting the latter portic’
of the definition which discusses linear
projects. Another suggestion was to
entirely re-define “single and complete
Several commenters requested that we
define “distant locations,” or exclude it
from the definition as it is an ar”’
term. We do not agree with the
practicability of defining “dista..
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59114 Federal Register / Vol. 56, No. 226 / Friday. Novemoei Z2. 199i / t
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Federal Register I Vol. 56, No. 226 I Friday , November 22, 1991 I Rules and Regulations 59115
Section 330.4(d): Several states
indicated that a final determination
could not be made until the final
regulations have been published or the
Corps submits a final consistency
determination for review and comment.
in response to these comments. it should
be noted that the states will have an
opportunity to make a decision on
consistency determination of the NWPs
upon publication of the final regulation
Several commenters objected to any
activities being authorized under an
NWP in states which have previously
disagreed with the coastal zone
management consistency determination
for that NWP. We believe that a
disagreement with coastal zone
management consistency should not be
the sole basis for requiring an individual
permit application for activities which
would otherwise comply with the terms
and conditions of a nationwide permit.
We have made only minor revisions to
this section since it is specifically noted
that the DE may exercise his
discretionary authority in those cases
where the adverse effects on the
environment would be more than
minimal or where the DE has concerns
for other factors of the public interest.
Several commenters requested that
for those NWPs requiring notification,
the 30-day review period should
commence immediately upon receipt of
an individual coastal zone management
consistency determination. We agree
with this recommendation as previously
discussed in section 330.1(e) and have
so modified the language of this section.
In 1990, section 307(c)(1) of the CZMA
was amended to require that Federal
agency activities within or outside the
coastal zone that affect any land or
water use or natural resource of the
coastal zone shall be carried out in a
manner which is consistent to the
maximum extent practicable with the
enforceable policies of the approved
state coastal zone management
programs. Ths amendment was
intended to reverse the Supreme Court
decision in California v. Watt which
found that an activity must be within the
coastal zone in order to “directly affect”
the coastal zone. However, this
amendment does not change the long
standing position of the Department of
the Army that, for the purposes of the
NWPs, activities occurring wholely
within one state need not receive CZM
consistency agreement from adjacent
states.
Section 330.4(e): Many commenters
recommended that we include an appeal
procedure to the Division Engineer or
Chief of Engineers in those cases where
a District or Division Engineer has
asserted discretionary authority. We
believe that an appeal process would be
unmanageable and burdensome to both
the Corps and the public. Furthermore,
even where discretionary authority has
been asserted to require an individual
permit, the activity would still have an
opportunity to receive approval through
the individual permit process. As such,
we have not provided any appeal
procedures for this section.
Section 330.4(f): Some commenters
requested that we enter into section 7
consultation relative to the Nationwide
Permit Program. We have decided that a
section 7 consultation is not required
since the program specifically does not
authorize any activity that jeopardizes
the continued existence of a threatened
or endangered species, or destroys or
adversely modifies the critical habitat of
such species. The regulations as written
provide the appropriate procedure
where the permittee, or other source.
notifies the DE that such impacts might
occur.
Several commenters requested that
for those NWPs with notification
requirements that the resource agencies
should be included in that process. We
have decided to provide notice to the
resource agencies during the notification
process. Further discussion of this issue
can be found in our discussion for
Appendix A.
Many commenters objected to the use
of the word “proposed” in the phrase
“species proposed for such designation”
as being too vague and undefined.
However, this term is used in the
Endangered Species Act and is used in
that contexL
Section 330.4(g): Several commenters
considered that the NWP program is
inconsistent with the National Historic
Preservation Act (NHPA) or 36 CFR 800.
Protection of Historic Properties. We
have determined that the NWP
condition at appendix A complies with
the requirements of the NI-EPA and is
consistent wIth 38 CFR 800 as
implemented by 33 CFR 325 appendix C.
Several comnienters requested a
definition of a “reasonable opportunity
to comment” for awaiting replies from
the SHPO. The procedures for providing
the SHPO and the ACHP a reasonable
opportunity to comment on the effects of
Corps permit actions on historic
properties are addressed in 33 CFR 325
appendix C. To be consistent with
appendix C we have reworded this
section to clarify that compliance with
appendix C is required.
Several commenters objected to the
term “potentially eligible for listing” as
being too ambiguous and uncertain and
requested clarification. It is our intent to
require reporting on important
properties that the prospective permittee
has reason to believe may be eligible for
the National Register of Historic Places
so that we could take into account ‘
eligibility and the impacts on such
properties. We do not believe that
reporting should be limited to properti
that were listed or determined eligible
for the National Register. In an effort to
clarify this point we have decided to use
the phrase ‘which the prospective
permittee has reason to believe may be
eligible for listing.” We recognize there
is still some uncertainty in this term.
However, if the prospective permittee
has any doubt about the historic
significance of the property to be
affected by the proposed project, he
should contact the State Historic
Preservation Officer (SHPO) for more
information. If the SHPO believes that
the property may be eligible, the
prospective permittee must notify the
DE. Appendix A has been revised to
reflect this change.
A few commenters questioned why
we made a distinction between Federal
permittees and non-federal perinittees in
this section. It should be noted that
Federal permittees must comply with the
provisions of SectIon 106 of the National
Historic Preservation Act and will
follow their own procedures to comply
with the Act While the Federal
permittee’s procedures will normally
satisfy the NI-EPA. this does not reir
the Corps responsibility to ensure t
the Federal permittee’s action also -
satisfies the Corps responsibilities under
the NI-EPA.
Section 330.5(a One commenter
suggested that 330.5 should be placed
in appendix A with the NWPs. The
inference was that the format was
confusing and applicants would only
read appendix A regardless of
references. One commenter requested
that an NWPcould not be modified
without input from resource agencies.
We do not agree that applicants will
only read appendix A. And further, If an
NWP is modified, the modification must
comply with the procedures specified in
330.5, which provides for public
review and comment.
Section 330.5(b): Two comnienters
stated that the date of issuance and the
effective date were unclear. One -
commenter requested that the notice,
procedure, and proposals to issue,
modify, or reissue NWPs should Include
the state agency responsible for water
quality certification. One comrnenter
suggested that it should be just as easy
to ask for revocation of a permit as it is
to issue the permit. One commenter
suggested that the Chief of Engineers
should respond in writing within 30
with the results of his consideration’
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newly proposed NWPs to the person
who proposes a new permit. conditions.
or changes to existing NWPs. One
commenter stated that the procedures
appear unworkable and recommended a
sequential procedure to finalize the
NWPs before regional conditions are
developed.
The effective date of the NWPs will
be clearly stated when they are
published by the Chief of Engineers. We
see no need to require the state agency
responsible for water quality
certification to be included in the public
notice. We will leave this decision to the
Division Engineer if he determines it is
beneficial to Include the state agency in
the public notice. The procedure for
revocation of an NVV’P. should this be
deemed appropriate, are actually easier
than issuance since documentation
under NEPA and 404(b)(1) compliance
analysis would not be required. A public
notice and opportunity for a public
hearing would be required to obtain
public comment. We do not agree that
the Chief of Engineers should be
required to respond within 30 days to
the person who proposes a new permit.
conditions, or changes to existing
NWPs. The correspondence will be
acknowledged but not necessanly
within 30 days or by the Chief of
Engineers. We do not agree that
sequencing is required to include
regional conditions to the NWP. Any
conflicts that may develop during final
issuance of an NWP can be resolved
and regional conditions modifIed.
deleted, or added before final
publication of the NWPs.
Section 330.5(c): Several commenters
requested that a grand-fathering period
from one to two years be specified for
those who have commenced work or
made substantial commitments in
reliance on an existing NWP. One
commenter suggested that the Division
Engineer retain the authority to modify.
suspend, or revoke an NWP for a
specific geographic area while another
commenter suggested that only the Chief
of Engineers could revoke an NWP on a
state level. One commenter requested
that Executive Order 12830 should be
followed. stating that the NWP being
modified, suspended. or revoked could
be considered a taking where an
applicant may have established vested
rights In a project based on the NWP
authorization.
We agree that the grandfather period
needs to be specified to avoid confusion
and to be consistent. Therefore, the
word equitable ’ has been deleted and
a grand-fathering period. if appropriats.
will be is specified in I 330.6(b). We do
not agree that discretionary authority
should not be delegated to either the
Division Engineer or District Engineer.
The Division Engineer and the District
Engineer are capable of making these
decisions as demonstrated by previous
determinations. Exercising discretionary
authority does not constitute a taking of
property for which compensation is due
The decision by a Division or District
Engineer to assert discretionary
authonty is based on a determination
that the adverse environmental effects
either individually or cumulatively
would be more than minimal or that
there are other concerns for the public
interest that would be more
appropriately evaluated in a regional
general permit or an individual permit
application. Further, asserting
discretionary authority is not a final
decision since the proposed project
would have the opportunity to receive
approval as a regional general permit or
an individual permit.
Section 330.5(d): Several commenters
were in favor of the District Engineer’s
authority to modify, suspend, or revoke
a specific activity’s authorization under
an NWP. Several commenters requested
that the Division Engineer retain
d.scretionary authority as a check and
balance. Several commenters were
concerned that no public notice was
being issued when the District Engineer
exercised his discretionary authority.
Several commenters requested that an
appeal process should be included in the
NWP program when the District
Engineer exercises discretionary
authority.
We disagree that the exclusive right
to exercise discretionary authority
should be retained with the Division
Engineer. Division Engineers have
agreed with the District Engineers’
recommendation . ninety-five percent of
the time. The five percent where the
Division Engineer has not agreed with
the District Engineer is not sufficient
reason to retain discretionary authority
with the D I vision Engineer. There seems
to be some confusion as to the District
Engineer’s exercisIng dlscreiionary
authority for a specific activity’.
authorization under an NWP. The
exercising of discretionary authority is
for an individual activity and not
regional or statewide. Therefore, there is
no need to issue a public notice. in the
event that a DE asserts discretionary
authority to require an individual permit
application, a public notice of the
subsequent application would be
published by the DE. We have not
included an appeal procedure for
discretionary authority. We believe that
an appeal procedure would be
unnecessary and burdensome. and
further, the assertion of discretionary
authority by a DE does not represent a
final decision, since the activity in
question may still be authorized by an
individual permit.
Section 330.8(a): Most commenters
recommended that when a DE is
requested to verify an NWP
authorization by a permttee. that the DE
should be requ!red to respond to the
permittee with a written confirmation
within 30 days of receipt of such
request. Other commenters incorrectly
assumed that notification for all NWPs
was mandatory.
Since all NWP activities (except those
requiring PDNs) are authorized without
the requirement to notify the Corps, the
DE’s written verification is considered a
service to the public. Therefore, we have
not provided a specific time limit for DE
verification of NWPs However, we
have indicated that the DE will respond
as promptly as his workload priorities
allow. Because of the dynamic nature of
the section 404 program, the intent of the
two-year time limit on written
verifications is to allow for appropriate
adjustments or clarifications in
jurisdiction, policy and procedure
Furthermore, we are changing the
wording of the paragraph to clarify thdt
the verification is valid for a period of
no more than two years, unless the NWP
is modified. suspended. or revoked. such
that the activity would no longer comply
with the terms and conditions of the
NWP. In these cases the provisions of
§ 330 6(b) will apply for those activities
which have commenced or are under
contract to commence.
Another commenter suggested that we
add a “grandfather” provision to
§ 330.6(b) for activities authorized by
NWP #28 so that re-verification of the
NWP authorization would not be
reqwred as a result of the NWP
reissuance; unless the proposed activity
would no longer comply with the terms
and conditions of any modifications (i.e.
acreage limits) in the final regulations.
We recognize that many activities
authorized by the existing NWPs will be
unaffected by any changes in this
regulation. As such, we have included
language in this section to clanfy that a
verification letter written by the DE
confirming authorization under an NWP
continues to be valid beyond the date of
the NWP expiration and any subsequent
reissuance or modification, provided the
reissuance or modification does not
affect the activity’s compliance with the
NWP. It should be further noted that this
provision will be applicable to all
activities authorized by NWPs. We have
also added a subparagraph to this
section to provide. in situations where a
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Federal Register I VoL 56. No. 226 I Friday, November 22. 1991 L 1es and Regulations 59117
state has denied 401 water quality
certification and/or did not agree with
the Corps CZM consistency
determination, for verification of
activities subject to the prospective
permittee satisfying the 401 water
quality certification and/or CZM
consistency concurrence requirements
of 33 CFR 330.4(c) and/or 33 CFR
330.4(d).
Section 330 6(b): Two commenters
indicated that the language concernmg
expiration of the NWPs In this section is
not consistent with the language found
in 33 CFR 330 5(b). These commenters
also questioned the need for the
language stating that work completed
under the authorization of an NWP
continued to be authorized under the
NWP. One commenter requested that
the DE should be allowed to extend the
expiration date for a project that has
been commenced beyond the 12 month
time limit. If acreage limits are revised,
the commenter indicated that previously
approved projects that exceed the
revised acreage limits would have to
apply for a new individual permit.
We agree that the language
concerning expiration of the NWPs may
have been confusing. To clarify this
point, we have clarified the language of
this regulation to indicate that the NWPs
will expire five years from the effective
date, unless sooner modified or revoked.
At the time of publication, the effective
date of the NWPs will be specified. The
commenters appear to have mistakenly
believed that the NWPs only authorize
construction. As with individual permits.
the NWPs authorize not only
construction, but also continued
maintenance and operation of any
structure or fill completed under such
authorization. We believe that 12
months from the expiration,
modification, or revocation of an NI/VP
is a reasonable amount of time to
complete a project that has been
previously authorized, and as such, we
have not extended this time limit.
Section 330.6(c): Most commenters
objected to multiple use of NWPs
(“stacking”) saying that the policy
would allow more than minimal adverse
environmental effects by piecemeal and
cumulative filling. Some cominenters
objected because allowing multiple use
of NWPs on a single project site would
prejuchce future applications on the
same property. Still others believed that
the concept of more than minimal and
single and complete project were not
adequately defined. Reference is made
to 33 CFR 330.2 for the definition of
single and complete project and the
preamble language on 330.2(i).
We disagree with the commenters and
are retaining the proposed wording of
330.6(c). If an activity authorized by an
NWP is likely to occur Independently of
a large single and complete project.
considerations of fairness and equity
require that it be allowed. The Corps is
involved in regulating many projects
where there is, In fact. independent
utility for a portion of a project where an
NWP would authorize activities which
would allow the activity to go forward.
In such cases there Is often an
additional portion of the project which
would need an individual permit.
However, the portion that would be
allowed by NI/VP would proceed
whether or not the additional portion of
the overall project were authorized. We
believe this position is supported by the
NEPA case law. Those commenters’
concerns that adverse environmental
effects may be more than minimal
should be alleviated by the requirement
that the same NWP can only be used
once for a single and complete project,
except for linear projects. Furthermore.
where a DE believes that adverse
environmental effects are more than
minimal he may invoke his discretionary
authority to add project specific
conditions or to require an individual
permit application.
Section 330.6(d): Many commenters
objected to this section. suggesting that
combining NWPs and individual permits
would constitute piecemealing. and
requested that activities with portions
requiring an individual permit should be
evaluated as a whole under the
individual permit review. They
suggested that fragmentation would
increase cumulative adverse impacts
and eliminate options for improvement
to proposed projects. Several
commenters suggested that combining
the NI/VP would preclude decisions on
individual permits based on complaints
of “substantial commitments” with
regard to financial obligations. We do
not agree that the combining of NWPs
and Individual permits necessarily
constitutes piecemealing. There are
many situations where a portion of an
overall project that only involves
adverse environmental effects covered
by an NVcITP would be built (i.e., have
independent utility) with or without
associated activities that may require an
individual permit. In such cases it would
be inequitable to delay a decision on the
N’WP pending a decision on the
individual permit. The proposed
language requires that the individual
permit documentation must include a
discussion of the adverse environmental
effects of the entire project, including
related activities authorized by NI/VP.
The applicant must understand that
authorization of an NWP will not
prejudice the decision on an individual
permit regardless of financiaj
commitments.
Appendix A to Part 330—Nationwith
Permits and Conditions
We have moved the nationwide
permits and their required conditions
from 33 CFR 330.5 (a) and (b) to a new
appendix A. We have reissued the 26
existing nationwide permits, some with
modifications, and have issued 10 new
nationwide permits, rather than the 13
proposed. In addition, we have added
the existing best management practices
now found at 33 CFR 330.6 as conditions
to the nationwide permits and have
added two new conditions. We have
reserved the NWP numbers 29,30.31,
and 39. They will be used for any new
proposed NWPs after notice and
opportunity for public comment in
accordance with 33 CFR 330.5.
Nationwide permits (NWPs) are a
type of general permit issued by the
Chief of Engineers and designed to
regulate certain activities having
minimal adverse effects on the
environment both individually and
cumulatively, in a manner entailing
little, if any, delay or paperwork. If the
project does not comply with the terms
and conditions of the NWP and can not
be or is not modified to comply with the
terms and conditions of the NWP, then
the proposed project is not authorized,
by NWP but may be evaluated for
authorization under a regional general -
permit or an individual permit. These
nationwide permits are proposed.
issued, modified, reissued (extended)
and revoked from time to time after
opportunity for public notice and
comment. Proposed new NWPs or
modification to or reissuance of existing
NWPs will be adopted only after public
comment, the opportunity to request a
public hearing, and a finding of
compliance with applicable standards.
The Corps will give full consideration to
all comments received prior to reaching
a final decision.
General Comments
Many commenters generally
supported the NWP program because it
allows the Corps to focus resources on
activities with greater adverse
environmental effects. Some disagreed
that the NWPs will result in a decrease
in overall workload, Many commenters
felt that the terms and conditions of
some of the NWPs were too vague and
needed to be clarified. Some felt that
clear standards for the use of mitigation
are needed. One commenter requested
that forms should be used for the
information required for condition 13.
Many of the NWPs are being clarified.
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, ..- ..--J, -
“S. ’. ”— :“ “o ”. - I -
Form ENG 4345 may be used for
notification.
A majority of the commenters who
were opposed to the NWP program were
opposed because they believe that the
program will contribute to wetland
l’sses and the destruction of wildlife
habitat, and that the program is contrary
to the President’s goal of no net loss of
wetlands. We support the President’s
goal of no net loss of wetlands. Wetland
losses under the nationwide permit
program have been substantially
reduced from the program’s inception in
1977. This reduction in adverse effects
continues and the proposed changes will
result in additional substantial reduction
in adverse effects over the 1988
nationwide permit program. Although
there will be continued small losses of
wetlands under the nationwide permit
program, the net losses of wetlands and
wildlife habitat will be minimal.
Concerns for local types or areas of
wetlands and other local concerns
should be directed to the appropriate
DEs for possible exclusion through the
use of discretionary authority or
regional conditions.
Many of the commenters
recommended that the Corps develop a
system to monitor and assess
cumulative adverse environmental
effects to wetlands under the NWP
program. The Corps has enhanced its
efforts in recent years to monitor and
assess cumulative adverse effects to
wetlands under the NWP program and
we intend to continue to improve this
effort.
Several of the commenters were
concerned that removing the NWPs from
the CFR would complicate the
administration of the NWP program.
make it less enforceable, confuse the
public, and might not comply with the
Admini ti’ative Procedure Act. We
disagree. and upon the expiration of the
NWPS in five years from their effective
date, will remove appendix A from the
CFR and issue the NWP, separately
from the regulations governing their use.
Until the NWPs in appendix A are
removed from the CFR. the proposed
issuance, reissuance, modification, and
revocation of NWPs will be published in
the Federal Register concurrent with
regional public notices issued by district
engineers. After the NWP are removed
from the CFR. the Chief of Engineers
and district engineers will issue public
notices to solicit comments and to
provide the opportunity to request a
public hearing. All comments will be
included In the administrative record,
and substantive comments addressed in
a decision document for each NWP. The
final decisions on the NWPs will be
announced by the Chief of Engineers
concurrent with regional public notices
issued by district engineers.
One cominenter suggested that we
change the language in the first sentence
of appendix A from “optional” to
“mandatory.” One commenter thought
that the changes to the NWP program.
including the addition of new NWPs.
would undermine state and local efforts
to regulate activities and that
consistency is needed. Another was
concerned about the applicability of old
RGLS when the new NWPs are issued
The term “optional” nationwide permit
is intended to indicate that a
prospective permuttee is not necessarily
reqwred to proceed under the terms of
an NWP but at his option may apply for
an individual or regional general permit.
It should be noted, however, that the
introduction to appendix A has been
rewntten to clarify the mandatory
nature of the permit conditions if a
prospective perrnittee chooses to
undertake an activity authorized by an
NWP. We believe that the program will
not undermine any state or local efforts
to regulate wetlands and that
consistency is enhanced by the
nationwide permit program. RGLs
addressing NWP matters have been
captured in the nationwide permit
regulation and are no longer applicable.
All the changes taken together should
result in an overall increase in
protection of the aquatic environment
and an overall decrease in workload.
Any workload savings will be devoted
to more efficient individual permit
.processing and increased enforcement
and compliance activities.
Mit 1 gation
Many comnientera objected to
allowing the DE to consider mitigation
to reduce. “buy down” or “write down”
the adverse environmental effects of a
proposed NWP activity to the minimum
impact leveL Many cominenters
Indicated that requiring mitigation is
contradictory with the presumption that
NWP actions do not have more than
minimal hidividual or cumulative
adverse environmental effects. Many
commenters further requested that the
DE should be required to make the
minimal impact determination prior to
considering any proposed mitigation.
Many commenters objected that the
sequencing requirement (to consider
avoidance, minimization and only then
compensation) has not been included in
the NWP Program. Others also objected
that the mitigation requirements of the
NWP Program are not consistent with
the Army/EPA Memorandum of
Agreement on Mitigation, dated
February 1, 1990.
Concerning the Mitigation Options
discussed in the April 10. 1991 Federal
Register notice, three times as many
commenters favored Mitigation Option 2
over Mitigation Option 1. Many of the
commenters who favored Option 2
supported the concept that mitigation
should only be required if the DE
determines that resources need to be
conserved. Some commenters
recommended that mitigation
development should be left to the
discretion of the applicant Others
requested that the DE should be
required to coordinate with other
Federal and state resource agencies to
determine what Is appropriate and
practicable mitigation.
Many commenters requested that
criteria for appropriate and practicable
mitigation should be included in the
m .tigation discussion. Others requested
a discussion of how to determine when
mitigation is practicable. Many other
commenters requested that guidance be
included to assist prospective permittees
in developing appropriate mitigation
proposals.
In response to the comments
concerning whether the DE should allow
an activity to proceed under a relevant
NWP when the mitigation reduces the
adverse environmental effects to the
minimal level (the “buy down” or “write
down” concept), we believe it is indeed
appropriate for the DE to consider
mitigation in determining whether the
proposed activity will result in no more
than a minimal level of adverse
environmental effects. While the
Memorandum of Agreement on
Mitigation between the Army and the
EPA applies only to standard
(individual) permits. It specifically
provides for the concept of mitigation to
reduce adverse environmental effects.
The Council of Environmental Quality’s
National Environmental Policy Act
implementing Regulations and the
section 401(b)(1) Guidelines also provide
for using mitigation to reduce adverse
environmental effects prior to
determining whether the effects are
significant. Section 230 ,7(bRl) of the
section 404(b)(1) Guidelines do not
require that general permits (Including
nationwide permits) comply with
230.10(a) (alternatives analysis) of the
404(b)(1) Guidelines. An alternative
analysis which Includes consideration of
off.site alternatives Is not required for
evaluating projects under the
nationwide permit process. On the other
hand, it is appropriate to avoid and
minimize impacts on-site and to use
other forms of mitigation to reduce
adverse environmental effects of
nationwide permit activities to the
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Federal Register / Vol. 56, No. 226 / Friday. November 22, 1991 / Rules and Regulations 59119
minimal impact level in summary, the
net Impact concept regarding the
determination of mininial is consistent
with NEPA. the Army/EPA Mitigation
MOA and the section 404(b)(1)
Guidelines as they pertain to general
permits.
After considering the comments
received on Mitigation Options, we have
determined that a modified version of
Mitigation Option 2 i v appropriate for
the nationwide permit program. DEs
should use the following procedure in
evaluating nationwide permit proposals
that might require a mitigation analysis
prior to determining whether the
proposed activity is authorized by a
particular nationwide permit.
In reviewing an activity under the
notification procedure, the DR will first
determine whether the activity will
result in more than minimal adverse
environmental effects. The prospective
permittee may. at his option, submit a
proposed mitigation plan with the
predischarge notification to expedite the
process, and the DE will consider any
optional mitigation the applicant has
included in the proposal in determining
whether the net effect of the proposed
work is minimal. The DE will follow the
notification procedures end will
consider any comments from Federal
and state agencies concerning the need
for mitigation to reduce the project’s
adverse environmental effects to a
minimal level. If the DE determines that
the activity complies with the terms and
r.onthtions of the NWP. he will notify the
nationwide permittee and include any
conditions he deems necessary.
If the DR determines that the adverse
effects of the proposed work are more
than minimal, then he will notify the
prospective permittee either: (1) That the
project does not qualify for
authorization under the NWP and
instruct the applicant on the procedures
o seek authorization under an
individual permit; or (2) that the project
is authorized under the nationwide
permit subject to the permittee
submitting a mitigation proposal that
would reduce the adverse
environmental effects to the minimal
leveL This mitigation proposal must be
approved by the DE in writing prior to
commencing work. It will be optional
whether the DE notifies the Federal and
state resource agencies of the mitigation
nroposal. These agencies will submit
iheir comments on what they consider to
be appropriate mitigation in their
response to the original predischarge
‘ otification. The DE will not be required
I o commence a second 30-day
notification procedure. If the net adverse
invironmental effects of the project
(with the mitigation proposal) are
minimal, the DR will provide a timely
response to the applicant informing him
that the project can proceed under the
terms and conditions of the nationwide
permit.
DEs are encouraged to provide
information in appropriate
circumstances to the public on what
they will normally consider to be
appropriate mitigation for determining
what constitutes minimum adverse
environmental effects in certain
situations and/or for certain wetland
types.
Several commenters supported
mitigation banking and the trust fund
concept, while several other
commenters objected to one or both
concepts. One comineriter requested
that dear guidelines should be required
for the use of mitigation banks or trust
funds. Another comnienter suggested
that regional mitigation banking
strategies should be developed. Several
commenters indicated that mitigation
banking should only be considered as a
last resort after minimization,
restoration, creation and enhancement
have been exhausted. One commenter
recommended that monitoring and
utilizing evaluation methodologies
should be performed regularly to
account for losses and gains at banks.
Finally one commenter favored
mitigation banks because they are better
than having numerous small wetland
mitigation projects.
We believe that mitigation banking
and utilizing trust funds are acceptable
methods of mitigating for adverse
impacts that might result from the use of
nationwide permits. Due to the minor
nature of adverse environmental effects
caused by activities authorized by
nationwide permits, both of these
concepts are excellent methods of
mitigating for numerous small projects.
Furthermore, appropriate utilization of
mitigation banks for numerous small
discharges is better for the environment
because mitigation banks can result in
large blocks of contiguous wetlands that
perform many functions. Appropriate
methods of utilizing these concepts
should be determined regionally,
although we expect to provide further
national guidance in the future.
Need for EIS
A few commenters felt that the
nationwide permit program as a whole
is a major Federal action significantly
affecting the quality of the human
environment and that an EIS should be
prepared. Some felt that all or some of
the nationwide permits would result in
more than minimal adverse
environmental effects, and that the
Corps had no evidence to support its
preliminary determination otherwise.
One commenter was concerned t!
secondary impacts have not beer
considered. In response, we have ..
a final detenninathm that this action
does not constitute a major Federal
action significantly affecting the quality
of the human environment. In addition.
environmental documentation has been
prepared for each proposed nationwide
permit. This documentation Includes an
environmental assessment and, where
relevant. a section 404(bXl) Guidelines
compliance review. Copies of these
documents are available for inspection
at the officeofthechlefofEngrneers
and at each Corp. district office. The
NEPA documents demonstrate that the
NWP comply with the requirements for
issuance under general permit authority.
This includes consideration that the
nationwide permits which may have a
potential to cause more than mmlmal
adverse effects on the environment have
been conditioned to require notification
to the DR. In this way, we have insured
that activities will not occur under the
NWPs which would cause more than
minimal adverse effects on the
environment. Secondary and cumulative
impacts have been considered in the
documentation
Nationwide Permits
I Aids to Navigation. One com .
requested that this NWP be conditioned
to comply with its state CZM plan.
Another cominenter requested that
predischarge notification be added to
this NWP so that applicants could be
advised that a permit is required from
that State. 33 CFR 330.4(a)(2) states that
the NWPS do not obviate the need to
obtain other Federal, state, or local
authorizations required by law. We
disagree that there is a need to add
further conditions. As such we have
retained the proposed wording.
2. Structures in Artificial Canals One
commenter suggested that the term
“artificial canal” is interpreted by some
to Indude channelized natural areas and
these should be dearly excluded in the
proposed language. Another commenter
supported limiting the NWP to
structures serving only single-family
residences and suggested that structures
which interfere with water circulation
be excluded. Another commenter stated
that artificial canals may support
important habitats for fish and wildlife
and suggested that the NWP should
state that structures that may directly
impact vegetated wetlands or
productive water bottoms are not
authorized.
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it is a valid concern that the term
artificial canal may be interpreted by
some to include channelized natural
areas. However, we believe that our
district personnel will have the
resources to distinguish between the
two In accordance with 33 CFR 322.5(g)
structures in previously authorized
canals would have been considered
under applications for the original canal
work. in grandfathered canals Or in
cases where structures may not have
been considered, the District Engmeer
may use discretionary authority to
evaluate structures if more than minimal
impacts are anticipated. Therefore, we
do not find it necessary to limit
structures to those only serving single-
family residences. General condition 4
of appendix A to part 330 states, in part.
that “no activity may substantially
disrupt the movement of those species of
aquatic life indigenous to the
waterbody. We believe that this
condition will ensure that adverse
impacts to aquatic life will not occur or
if they may occur will be a basis for
discretionary authority by the DE.
3. Maintenance: We received a wide
range of comments on this proposed
nationwide permit. While a few
commenters objected to this nationwide
permit stating that It was too broad.
others commented that it was too
restrictive. However, the majority of
comments were generally supportive of
our proposed changes. Many favored the
clarification of “currently serviceable”
to allow two years for the repair or
replacement of those structures and fills
damaged or destroyed by storms. fire.
floods or other discrete events. Several
commenters indicated that the proposed
NWPs contained confusing language
and requested that we define or clarify
the terms “current safety standards”.
“substantial change”. “minor
deviations” and “within the past two
years”. We agree that the two-year time
limit and the term ‘substantlal change”
may have been confusing to some so we
have reworded the provision for the
two-year time lImit for repair or
replacement for certain structures and
fills to clarify our Intent, and we have
deleted the term “substantial change”.
However, experience has shown that all
structures and fills require maintenance
periodically. As a part of this
maintenance effort it I. important to
note that Improvements in technology
and concerns for public safety warrant
minor deviations for repair and
replacement activities. As such, we have
retained the terms “current safety
standards” and “minor deviations” to
provide the flexibility necessary for this
nationwide permit to keep pace with
construction technology and public
safety. As with all nationwide permits.
activities performed under this
nationwide permit must comply with the
terms and conditions of the nationwide
permit. Further, it should be noted that
the DE has the authority to further
modify or restrict this nationwide permit
or to assert discretionary authority over
any specific activity where the adverse
environmental effects are more than
minimal.
4 Fish and Wildlife Harvesting.
Enhancement, and Attraction Devices
and Activities. As a part of the proposed
modification of this nationwide permit,
we were seeking comments on whether
to add small aquaculture activities to
this nationwide permit. In response to
this, we received many comments that
objected to the addition of small
aquaculture activities to this nationwide
permit, while other commenters,
including some state agencies requested
that we define this term before we seek
public comments. However, a few
commenters suggested that we include
small-scale shellfish aquaculture
activities since this activity has a long
and successful tradition We agree that
traditional dam and oyster farming and
harvesting activities have only minimal
adverse environmental effects. in fact,
these activities themselves are
environmentally sensitive and are
dependent upon a healthy aquatic
environment for their continued success
As such, we have added shellfish
seeding to this nationwide permit
provided this activity does not occur in
wetlands or vegetated shallows.
However, after reviewing the comments
we received in response to the term
“small aquaculture activities.” we have
decided not added other aquaculture
activities to this nationwide permit.
However, we believe that these types of
activities can be accomplished in most
cases with minimal adverse effects on
the environment, including the aquatic
environment, and may be appropriate
for a regional general permit under
certain conditions.
5. Scientific Measurement Devices:
Most of those who commented on this
permit agreed to the added activities. A
few were concerned that there was no
description of what would be
considered as a “small” weir or flume,
and structures might be permitted that
would interfere with migratory fish. To
address these issues we have limited the
quantity of fill for small weirs and
flumes to 25 cubic yards consistent with
the limits imposed by nationwide permit
18. Also we have required a notification
on those small weire and flumes
requiring a discharge of more than 10
cubic yards of fill material. Such
notification requirement should provide
the opportunity for a review of those
activities large enough to affect
migratory fish. Furthermore, general
condition 4 has been modified to reduce
potential disruption of migratory fish.
8. Sw’vey Activities. Some of those
commenting misunderstood that the
nationwide permit specifically does not
authorize discharges associated with
drilling, roads, and well pads. A second
concern was killing aquatic organisms.
especially endangered species, by the
blast shock during seismic tests. The
NWP is clear that drilling, roadway and
well pads are not authorized. The
district engineer must be guided by the
presence or absence of endangered
species habitat in his consideration to
regionally condition or take
discretionary authority over seismic test
operations involving discharges.
General condition II requires that the
permittee notify the DE if any listed
species or critical habitat might be
affected or is in the vicinity of the
project. In such cases, no work shall
begin on the activity authorized by the
NWP until the permittee is notified by
the DE.
7. Outfall Structures: Several
commenters recommended that this
nationwide permit should not apply to
activities exempt under NPDES. such as
some stormwater outfalls. or in states
that have not assumed responsibilities
under NPDES from the EPA. Others
stated that review of outfall structures
under both NPDES and this nationwide
permit were negligent in recognizing the
requirements for review under the
NHPA. It was recommended that the
Corp obtain clearance from the
appropriate SHPO prior to any written
nationwide permit verification.
In response to the above comments.
we refer to the “notification” procedure
required for this N1AJP. The DE may add
conditions on a case-by-case basis for
any activity where it is determined that
conditions are necessary to satisfy the
terms and conditions of the nationwide
permit. Further, general condition 12
requires the permittee to Inform the DE
if the authorized activity may adversely
affect any historic properties. Where
such properties may be affected, the
permittee may not begin work until the
DE has satisfied the procedures at 33
CFR 330.4(g).
A few commenters agreed with the
proposed revisions to this NI/VP. since it
would authorize outfalls. previously
authorized in compliance with, or
otherwise exempt from NPDE&
Some comnientera objected to the
advance “notification”, as they felt it to
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Federal Register I Vol. 56, No. 226 f Ftiday, November 22. 1991 / Rules and Regulations 59121
be a duplication of reporting Systems
since the Corps is presently notified of
pending NPDES permit application.. Of
these cornmecters, one also objected to
the DE’s ability to add conditions
without division approval.
Many commenters objected to the
proposed revisions for this NWP. The
stated concerns included: a lack of citing
cntena, no design specifications for the
outfall structure itself, or associated
construction methodologies: reliance on
NPDES regulation is inappropriate since
it focuses primarily on impacts
associated with effluent, and does not
satisfactorily review activities subject to
section 404 regulations application of
the section 404(b)(1) Guidelines should
be required since they are not addressed
under NPDES regulations. Further,
concern was expressed over impacts
relating to structures, fills, and effluent
discharges into special aquatic sites.
We believe that the Incorporation of
specific design criteria for outfall
structures in the NWP would be
impractical, due to the variability In the
size of structures, preparatory work
required and construction materials
utilized. However, the concerns raised
by these comments can be addressed
through the required notification
procedure at 330.1(e). Under the
notification procedure the DE will
ensure that the activity complies with
the terms and conditions of the NWP
end further, that the adverse impacts on
the aquatic environment, and other
aspects of the public Interest are
individually and cumulatively minimaL
It is the responsibility of EPA pursuant
to section 402 of the Clean Water Act to
regulate the effluent of outfall structures.
The Corps has responsibility for those
activities associated with the
construction of these structures. These
activities can be effectively regulated by
this NWP through the notification
procedure, which does address
construction impacts to special aquatic
sites. We have considered all comments
received In response to this nationwide
permit and have retained the wording as
proposed.
a Oil and Gas SLrvcture s. Many
commenters objected to this NWP on
the basis of general environmental
concerns associated with oil drilling
structures. Others suggested that this
NWP not apply in sensitive areas such
as wetlands. riverbeds, mudflats, and
marine sanctuaries. One commenter
supported this NWP but suggested that
notification procedures be Implemented.
This NWP authorizes oil and gas
structures only within areas leased for
such purposes by the Department of
Interior. Minerals Management Service.
In addition to the Corps NEPA
documentation for this NWP, the Service
prepares NEPA documentation before
Issuing a lease which also addresses the
environmental Impacts of oil drilling, in
accordance with 33 CFR 322.S(f), the
Corps review is limited to the effects on
navigation and national security.
Consistent with this review we are
therefore retaining the proposed
wording of the paragraph to exclude
established danger zones and Corps/
EPA Dredged Material Management
Areas.
9. Structures in Fleeting and
Anchoruge Areas: Two commenters
inquired whether “structures” indude
filling activities under section 404
authority. Only section 10 structures
which do not involve filling activities
are authorized by this NWP. Other
NWPs (i.e. NWP 18. NWP 25. etc.) may
be applicable if the terms and conditions
of those NWPs are met. One commenter
asked If NWP 9 applied to established
or proposed to be established fleeting or
anchorage areas. NWP 9 applies to all
fleeting or anchorage area that have
been established by the U.S. Coast
Guard. One commenter expressed
concern that no limits were proposed on
the size and design of the structures. We
disagree that size and design limits are
needed. NWP General Condition 1.
Navigation, will not allow any structures
that would cause more than a minimal
adverse effect on navigation.
10. Mooring Buoys: Two cornmentors
suggested that restrictions be placed on
water depths and type of anchors to be
used under this NWP. Another
commenter listed specific sensitive
regional areas that should be excluded
from the NWP or have mooring limits
established. Two commenters expressed
concerns about cumulative impacts from
the installation and/or use of mooring
buoys. Comments regarding specific
areas that should be excluded or other
special restrictions that are needcd to
protect special areas such as shellfish
beds or submerged aquatic vegetation
can, and should, be more appropriately
dealt with by the addition of regional
conditions. Based on our experience, we
do not anticipate that the mooring buoys
and anchorage systems will have more
than minimal adverse effects either
individually or cumulatively.
11. Temporazy Recreational
Structures. Several commenters
suggested that the terms “temporary”
and “seasonal” should be replaced with
a specific time limitation and that the
size of structures be more clearly
defined. Several commenters favored
excluding the use of the NWP in shallow
water areas or vegetated shallows. Two
commenters recommended that the
NWP be used only for discrete events.
Two commenters expressed concerns
about navigation safety and with
water related recreation. Several
commenters indicated that state
approval must be obtained for these
structures. We disagree with the
approach of placing time limitations on
temporary or seasonal structures
because of the seasonal variations for
recreation from region to region.
Regional conditions can be developed
for the NWP and/or District Engineers
may use discretionary authority on a
case-by-case basis if duration, structure
size or location require such action.
Limiting the NWP to discrete events
would greatly reduce its utility. In
appendix A to part 330. general
condition C. 1 states that no activity
may cause more than a minimal adverse
effect on navigation. Section 330.4(b)(2)
states that NWPa do not obviate the
need to obtain other Federal, state, or
local authorizations required by law.
12. Utihty Line Badtfil! and Bedding.
We are clarifying that this NWP does
not apply to tile or similar drainage
works (although It does apply to pipes
conveying drainage collected from
another area) and that material resulting
from trench excavation can be
temporarily sidecast into waters of the
United States, provided there is little or
no flow to disperse the excavated
materiaL Also all exposed slopes
streambanks must be stabilized
Immediately upon completion of the
utility line In addition, the area of
waters of the United States that can be
disturbed must be limited to the
minimum necessary to construct the
utility line. We have received frequert
questions as to whether this NWP was
restricted to crossing-type situations, as
is typically the case in NWP 14. There is
nothing In the language of the NWP to
restrict use of this NWP to crossings. nor
was there any intention to do so.
Adverse environmental effects will be
minimized by compliance with the terms
and conditions of the NWP, induding
the requirement to restore the area to its
preconstruction contours and the
requirements to avoid and minimize
discharges of dredged or fill material to
the maximum extent practicable.
Furthermore, In wetlands the top 6” to
12” of the trench should generally be
backfilled with topsoil from the trench.
Many commenters objected to the six
months that sidecast material may
remain in waters of the United States
and suggested shorter periods ranging
from 14 to 60 days. We considered that
these suggestions have some validity
and have reduced temporary sideca
to three months. Furthermore,
considering the variation in terrain
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591Z t’ecierai egister / vot. u, i’ u. ho / rituay, i ’ u t n1ueL i-’-, u. -’
conditions throughout the country we
encourage the DEs to further address
this issue, as appropriate, with a
regional condition.
Many commenters requested that a
PDN should be required for this NWP
based on the fact that these could be
major projects affecting large areas of
wetlands of varied types with the
potential for significant impacts to fish
and wildlife, endangered species, or
water quality.
We believe that major utility lines will
have little opportunity to escape our
notice and this fact will allow the DE to
assert discretionary authority, where
appropriate. This will minimize the type
of losses described by the commenters.
This would also apply to several
comments requesting a limit on the size!
length of the project that may be
considered under this NWP.
Several commenters noted the
potential for a french drain effect caused
by backfill being more permeable than
the native soil which may drain
wetlands. This appears to be a valid
concern. However, we believe this
condition would be controlled through
normal construction techniques. Further.
this condition should normally cease
after the disturbed soils have an
opportunity to settle and compact. It
should be further noted that this
problem as well as other difficult soil
management characteristics will vary
throughout the country and can be
easily addressed by regional conditions.
if necessary.
Several commenters suggested that
sidecasting in special aquatic sites be
prohibited. We believe that the NWP. as
written, has the affect of minimizing the
adverse effects to special aquatic sites.
This, combined with the ability of the
DE to condition the NWP and assert
discretionary authority, assures minimal
impact.
Many commenLers had concern over
the requirements to replace the top 6” to
12” of topsoil. In approximately equal
numbers they either considered it
impractical to strip, store and retrieve
this thin veneer of sod or they wished
that at least a minimum of 12” should be
replaced with even more stringent
conditions for protecting stored soil
material from erosion, dehydration etc.
We believe that 6 to 12 Inches is
sufficient for restoration of a wetland
condition. However, the permittee may
replace more than 12 inches at his
option.
Several commenters requested that
this NWP be modified to include
overhead utility lines. Overhead utility
lines have traditionally been installed
on towers or similar structures that do
not involve discharges of dredged or fill
material into waters of the United
States. However, discharges associated
with the construction of such structures
may be authorized by one, or more,
other nationwide permits. To assure
adequate evaluation of navigation and
other factors of the public interest, we
have not expanded this nationwide
permit to include structures in Section
10 waters.
13. Bank Stabilization. Many
commenters favored the expansion of
the NWP 13. believing the environment
was reasonably protected. However,
some commenters were opposed to
expanding the NW!’ 13. These
commenters were concerned about
piecemeal cumulative impacts, loss of
special aquatic sites, use of unsuitable
materials, such as asphalt, car bodies.
and trees, secondary impacts to
adjacent upland riparian areas, and lack
of need. Many commenters
recommended that vegetative shoreline
stabilization techniques be encouraged
in lieu of bulkheads, while a few
recommended that NWP 13 only allow
the use of rip-rap. Some commenters
recommended that more than I cubic
yard of discharge and some sparse
vegetation impacts be allowed, while
others favored limiting the NWP 13 to
less than 200 feet.
Shoreline stabilization devices and
methods (e.g., bulkheads, seawalls, rip-
rap, vegetative plantings) are typically
constructed to prevent the loss of upland
property from erosion. However, the
rate of erosion can vary substantially
from shoreline to shoreline. In some
cases there may be rio apparent erosion.
In other cases there may be accretion. In
low wave energy areas, wetland
vegetation often exists and functions as
a shoreline stabilizer and erosion
prevention. In view of the above, we are
retaining the proposed wording of the
paragraph. The commenters’ concerns
should be alleviated by the terms and
conditions which prohibit discharges in
special aquatic sites, including
wetlands, the use of unsuitable and
toxic materials, and the requirement
that the proposed stabilization be the
minimum necessary. In some cases,
where the Impacts may be more than
minimal (i.e., shorelines greater than 500
feet, and/or greater than 1 cubic yard
per linear foot of shoreline), notification
to the DE Is required as per the general
condition in part C (13). The intent Is to
accommodate a wide range of users.
techniques and materials with minimal
time delay and maximum protection of
valuable wetland resources.
It Road Crossing: Many commenters
indicated that this NWP should be
eliminated or reduced in scope for a
number of reasons including the
following: it is not consistent with
section 404(e) of the Clean Water Act.
the section 404(b)(1) guidelines, and the
mitigation MOA. should include
notification for all crossings; lacks
careful consideration of the term “single
and complete project”; does not address
low flows in the movement of aquatic
organisms; lacks compensation for lost
flood storage; a lack of resource agency
review; cumulative and secondary
impacts are not adequately addressed;
and that it should include mitigation for
all wetland acreage loss.
Several commenters expressed
support for this NWP. stating that there
should be no limit on the length or
acreage of a crossing. They further
indicated that mitigation should not be
required and that the delineation of
special aquatic sites would be
burdensome.
We have carefully considered these
comments and have decided to modify
this NWP to assure that projects
authorized by this NWP have only
minimal adverse effects on the
environment. We have revised the
language of this NIATP to provide for the
maintenance of low flow and the
movement of aquatic organisms. The
notification procedures have been
revised to include a review by the
appropriate resource agencies. Based
upon our evaluation of this NWP, we
believe it is consistent with the Clean
Water Act.
15. US. Coast Guard Approved
Badges: Several commenters expressed
concern over the absence of limits on
the size of fills that may be addressed
by this NWP. Based on the requirement
for notification on this NWP and the
ability of the DE to assert discretionary
authority should the nature of the
impacts warrant, it was decided not to
impose such limits.
The resource agencies should be
included in the notification process. This
has been changed to include the
resource agencies in the notification
process.
Several commenters expressed
concern over the inclusion of approach
fills in this NWP. It was our belief that
the Coast Guard permit process
combined with the DE’s independent
review of the required notification
would provide adequate safeguards and
ensure minimization of impacts to
special aquatic sites. However, upon
further consideration, we believe that
given the potential Impacts of some
approach fills it Is more appropriate to
conduct an individual permit review.
Accordingly. approach fills have been
deleted from NWP 15.
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Federal Register I Vol. 58, No . 228 / Friday, November 22, 1991 / Rules and Regulations 59123
16. Return Water From Upland
Contained Disposal Areas: Some
commenters requested that the states
should be given an opportunity to issue
generic water quality certification as
well as a site-specific certification or
waiver. Based upon the Corps’
experience and knowledge of dredging
and disposal operations, we believe that
technology Is readily available to
control the quality of return water from
contained upland disposal sites. Any
adverse environmental effects resulting
from this type of activity would be
minimal provided the effluent meets
established water quality standards and
adequate monitoring of the activity is
performed to assure compliance with
these standards. With this in mind, it
was our intent with the proposed
language of this NWP to clearly provide
the states an opportunity to review each
activity under this NWP authorization to
assure compliance with the state’s
standards. This is clearly a requirement
in those states that have denied water
quality certification for this NWP
authorization. However, in some Corps
districts the standards for such effluent
have been established jointly by the
Federal and state agencies and are
readily available for public Information.
In cases, where water quality standards
are established, we see no need to
require additional state review unless
the state has denied certification for the
NWP authorization As such, we have
deleted the provision requiring a site-
specific certification or waiver under
section 401. However, we reiterate that
a prospective permittee must receive an
individual certification or waiver from
the state in those states that have
denied water quality certification for the
NWP authorization.
Several commenters indicated that
this NWP was not appropriate since it
would not allow adequate review of
containment design. quality of the
effluent and the potential to cause
irreversible damage. We believe that
these issues will be thoroughly
addressed, as they have been in the
past, by the state water quality
certification process.
One commenter suggested that since
dredging and upland disposal are
considered “de minimis” and do not
require 401 certification, this activity
should not require authorization. This
NWP is responding to the return of
effluent to waters of the United States
and Is not intended to address dredging.
The effluent has been administratively
defined as a discharge of dredged
material.
A few commenters requested that
wetlands which develop on disposal
sites should not be considered
jurisdictional wetlands. We do not
consider that such a condition is
appropriate. Rather, such cases should
be evaluated on a case by case basis to
determine whether jurisdictional
wetlands are present. In accordance
with our regulations, such areas
generally are not jurisdictional wetlands
unless the disposal operation has been
abandoned.
17. Hydropower Projects. Many
conunenters expressed concern with
regard to the expansion of this NWP to
include all hydropower projects
authorized by the Federal Energ ’
Regulatory Commission (FERC). noting
that very large projects with the
potential for major imp icts could be
authorized without adequate review.
There was considerable concern that the
FERC process was not compatible with
the Corps process. Concern was also
expressed that the broad nature of the
types of projects that could be
authorized was contrary to the intent of
the nationwide permit program to
simplify permitting of minimal impact
activities of a similar nature. Several
commenters had expressed support for
the expanded NWP considering that it
would eliminate regulatory duplication
and that the FERC process would
adequately address environmental
concerns. In addition, there were a
variety of other comments
recommending conditions or
modifications of the proposed NWP.
After careful consideration of all
comments, we have decided to reissue
this existing NWP with only minor
changes In addition to the Corps NEPA
documentation for this NWP the FERC
also addresses environmental concerns
for those small hydropower projects at
existing reservoirs, which are covered
by this NWP. We have expanded this
NWP to include those projects which
FERC has granted an exemption from
licensing pursuant to section 408 of the
Energy Security Act of 1980 and section
30 of the Federal Power Act, as
amended. This exemption can apply to
hydropower projects up to 5000KW. We
have also Included hydropower projects.
at existing reservoirs requiring
Individual licenses, up to 5000KW, the
same limit that applies to exemption
projects. We have retained the
notification requirement for this NWP,
since we believe that a notification
requirement for small hydropower
projects under the revised limits may be
necessary to ensure that some of these
projects have minimal adverse effects.
We believe that this expansion of the
NWP Is only minor and only those
activities with minimal adverse
environmental effects can be authorize . 4
by this NWP.
18. Minor Discharges Many
cornmenters objected to the expan
of NWP 18 from 10 to 25 cubic yaras
including fill in wetland areas and othpr
special aquatic sites; and eliminating I e
stream diversion restriction. Many other
commenters requested that greater
quantities of material (over 25 cubic
yards) or unlimited quantities be
authorized, while resthcting use of the
NWP to Vio acre in special aquatic sit.is.
including wetlands. We disagree with
any changes to the quantities specified
in the proposed regulations because we
believe they are reasonable levels. We
are requiring notification for all
proposals over 10 cubic yards and for all
projects involving special aquatic sites,
including wetlands. DEs will be able to
exert discretionary authority or add
appropriate conditions to reduce any
adverse impacts in special aquatic Sites.
or determine the project to have more
than mimmal impacts. We have changed
the wording of this NWP to clarify that
discharging material for the purpose of
stream diversion is prohibited. One
commenter requested a restriction th .it
upland property or fastland couldn’t be
created by this NWP. We disagree that
such a restriction should be included.
Many commenters requested that ti
notification requirement be dropp
because the actions are minimal b
definition of an NI/VP. We disagree
because a DE should be given the
opportunity to review proposals over 10
cubic yards and those in special aquatic
sites. Several commenters requested
that mitigation be required in special
aquatic sites and that “flooded” be
defined. Mitigation should be required if
it is deemed necessary by a DE. See
section 330.2 for more information on
flooding Finally, several commenters
rcquested more uniformity in the
quantities and acreage impacted
between the various NWPs such as
NWP 14. 18, 19 and 26. We agree and
have adjusted NWP 19 to be consistent
with NWP 18 by increasing the
quantities of NWP 19 to 25 cubic yards.
We have made one additional change in
wording by combining the second
sentence of “d” with “b”, so that it is
clarified that the Yio acre limit applies
to the footprint of the discharge as well
as the area flooded or drained. We do
not agree that the Yjo limit should be
changed.
19. Minor Dredging: Several
commenters supported the proposed
increase in the quantity limitations from
10 to 20 cubic yards while several q
commenters also favored increasin
quantity and making the yardage
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59124 kederal Kegister 1 VOL. ti, i’io. .hu / riludy. i uveuLuvt , i i
limitations consistent with NWP is.
Several commenters recommended that
dredging should not be allowed in
special aquatic sites. A few commenters
also expressed concerns about potential
sediment toxicity and requested testing
of the sediments prior to dredging Three
cornxnenters indicated that they believe
this proposed NWP involves a discharge
and that section 401 water quality
certification should be required.
We have reviewed the comments and
agree that making the volume limitations
of NWPs 18 and 19 consistent has merit.
The maximum quantity of dredging
authorized by this NWP has been
increased to 25 cubic yards. We agree
that some types of special aquatic sites
such as coral reefs, submerged aquatic
vegetation beds, and wetlands as well
as anadromous fish spawning areas
should be excluded from this NWP and
to further ensure the impacts will be
minimal we are including activities that
would degrade such sites through
siltation in this exclusion. However, we
believe that dredging quantities of 25
cubic yards or less In other special
aquatic sites (i.e., riffle and pools.
sanctuaries, and mud flats) would result
in only minimal adverse effects on
environment, provided the activity
complies with the terms and conditions
of the NWP. With the exclusion of coral
reefs, submerged aquatic vegetation
beds, and wetlands, we believe that
increasing the dredging limitation to 25
cubic yards would still result In only
minimal adverse environmental effects
both individually and cumulatively.
Areas containing contaminated
sediments have generally been
previously identified. We believe that
this Issue can be addressed through by a
regional condition of this NWP or by
activity-specific conditions required by
the DE. if necessary. Regional conditions
can be developed to exclude known
contaminated areas (such as sites on the
NPL) or to require testing in areas of
suspected contamination. Furthermore,
we are encouraging DEL where there is
reason to believe the material to be
dredged is contRmlna ted. to consider
exercising discretionary authority. The
assertion that “de minimis” soil
movement associated with dredging
operations conetitutes a discharge under
section 40418 specifically addressed In
the Corps’ regulations at 33 CFR 323.2.
Since 1977, the Corps has consistently
held that section 404 does not apply to
Incidental soil movements during
normal dredging operations. In order to
be more consistent with NWP 18. we
have changed the title of this NWP to
“Minoi Dredging”.
20.011 Spill Cleanup: We have
determined, based on our evaluations.
that fills discharged under this NWP are
very small, infrequent, and at widely
scattered locations. Therefore, the
benefits to be accrued from expeditious
oil spill cleanup far outweigh the
impacts resulting from minor fills
associated with cleanup operations. In
addition to compliance with Federal
regulations at 40 CFR 300 and 40 CFR
112 3 and a State Contingency Plan (if
one exists), NWP 20 also requires
approval by the Regional Response
Team, which further safeguards
implementation of cleanup operations
on a case by case basis. Further, we
believe those parties responsible for
overseeing implementation of the
National Oil and Hazardous Substances
Pollution Contingency Plan and the Spill
Control and Countermeasure Plan insure
environmental compliance and re-
establishment of pre-existing conditions.
While most cominenters agreed with
the revisions proposed for NWP 20. one
commenter recommended that State
representatives be contacted. regarding
concurrence with State contingency
plans, while another commenter
similarly recommended that cleanup be
in compliance with State and Federal
Contingency Plans. We agree with this
recommendation as it acknowledges the
potential requirement for compliance
with the State Contingency Plan, if one
exists, without overburdening the
application with compliance under the
terms and conditions of the NWP.
Therefore, we have reworded this NVI!P
to include any State Contingency Plan.
21. Surface Coal Mining ActiviLies.’
Many commenters expressed concern
that the Department of the Interior’s
Surface Mining Control and Reclamation
Act (SMCRA) environmental procedures
were inadequate as the procedures did
not afford protection to existing
wetlands and other aquatic resources
and therefore opposed this NWP. There
were concerns that surface mining
projects resulted In large impacts to
wetlands and water quality. A few
cominenters recommended that impacts
to special aquatic sites not be
authorized by the NWP. One commenter
stated that the NWP should be revised
to allow Impacts to special aquatic sites
where they constitute only a minor
portion of the total mining area or within
other threshold limitations. Some
commenters were concerned that
Section 106 of the National Historic
Preservation Act was not being
complied with on these mining
activities.
Several commenters believed that the
Department of the Interior’s Office of
Surface Mining and states with
approved programs were capable of
protecting wetlands and aquatic areas
and opposed the notification and
wetland delineation requirements as
unnecessary duplication of effort. One
commenter proposed that the notice
under 30 CFR 773.13 could satisfy the
notification requirement or that the
Corps should notify DOI after final rule
and urge them to amend their rule to
avoid duplication. Some commenters
requested that coordination with the
resource agencies be required.
Other commenters recommended 1:1
mitigation of functions and values for
aquatic resources, requiring notification
for mining activities impacting greater
than one acre of waters of the United
States, and revising the title of the NWP
to “Surface Coal Mining Activities”.
In addition to the Corps NEPA
documentation for this NWP the
Department of the Interior’s SMCRA
program also addresses environmental
concerns for activities under its
program. The SMCRA program sets up
requirements for the use of “best
technology currently available” to
minimize impacts to fish and wildlife
resources and water quality. Wetlands
are defined as In the Corps regulations.
Also, wetlands and riparian vegetation
are specifically designated in SMCRA
regulations as resources for which
protection Is required. DOl and SMCRA
permittees must consider impacts on
historic properties. endangered species.
and coordinate with the U.S. Fish and
Wildlife Service under the FWCA. Also,
in accordance with SMCRA other
Federal and state agencies are provided
notification well In advance of the
applicant’s notification to the Corps.
Therefore, we believe additional
coordination with agencies would be
unnecessary duplication. However, we
believe the 30-day notification and
delineation of affected special aquatic
sites. including wetlands, are necessary
to insure that the DE has the opportunity
to assert discretionary authority when
he believes impacts are more than
minimal and mitigation is not proposed
to reduce these impacts. We believe the
amount of mitigation that may be
required should be determined by the
DE, The DE is better able to determine
impacts and appropriate and practicable
mitigation for his geographical region.
We believe revising the title of the NWP
to “Surface Coal Mining Activities”
would provide clarification concerning
activities authorized, and we have
adopted that recommendation.
22. Removal of Vessels One
commenter requested that the terms
“minor fills”. “temporary structures”.
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Federal Register / Vol. 56. No. 226 I Friday, November 22. 1991 / Rules and Regulations 59125
and “structures” be defined and one
commenter suggested that the definition
of “minor fill” be the same as the
requirements of * 330.6(B)(18). Several
commenters were pleased to see the
requirement to coordinate to ensure
compliance with the National Historical
Preservation Act (NHPA) and the State
Historic Preservation Officer (SHPO).
One commenter suggested that vessels
greater than 50 years of age be
evaluated, in consultation with the
SHPO, for listing in the National
Register and those eligible or listed on
the National Register could be evaluated
as an individual permit. One commenter
requested that the NWP be added to the
list of activities requiring pre-discharge
notification, since affected parties may
not receive sufficient notification that a
state permit may be needed.
We do not agree the terms “minor
fills.” “temporary structures,” and
‘structures” require defining since these
terms are intended to be subject to the
DE’s interpretation on a case-by-case
basis as a project is being evaluated.
The criteria described in 330 6(B)(18)
for minor discharges of dredged or fill
material could be used as a guide in
evaluating the environmental impacts,
but Is not meant to be a definition of
“minor fill”. Requiring the applicant to
check the Register of Historic Places to
determine if the vessel or structure is
listed or eligible for listing prior to
removal should ensure against
unauthorized removal. We do not agree
that vessels at least 50 years of age
should not qualify for the NWP and be
evaluated as an individual permit Any
vessel listed or eligible for listing in the
National Register may be removed
under the NWP as long as they have
complied with the NI-IPA and consulted
with SHPO. We do not agree that a pre-
discharge notification procedure should
be added to ensure the applicant
complies with state permit requirements.
23. Approved Categorical Exclusions
Several commenters were opposed to
the proposed NWP. A few commenters
indicated that the NWP allows Federal
agencies to circumvent the
environmental review process and
suggested that their activities should be
evaluated under Individual permit
review One commenter requested that
the NWP language clearly indicate that
the Chief of Engineers does not approve
another agency’s Categorical Exclusion
but rather approves application of the
NWP. A few commenters indicated that
the notification requirement is self-
defeating, unnecessary and negates the
utility of the NWP. Several commenters
favored excluding fill In special aquatic
sites.
The establishment of categorical
exclusions is consistent with the Council
on Environmental Quality Regulation for
implementing the Procedural Provisions
of the National Environmental Policy
Act (40 CFR part 1500). Prior to an
agency’s categorical exclusion being
approved for inclusion in the NWP, the
Chief of Engineers will conduct a public
interest review by soliciting public
comment, Not all agency categorical
exclusions are accepted under this
NWP. In some cases only parts of
categorical exclusions are accepted or
they may be accepted with certain
conditions for approval under the NWP.
We can and have required notification
to DEs where appropriate and necessary
for specific categorical exclusions.
However, we do not believe It is
appropriate to require notification
across the board and therefore have
deleted the last paragraph of the
proposed NWP. which requires
notification for fills in special aquatic
sites, including wetlands.
24. State Administered Section 401
Programs: Although only two comments
were received, both comxnenters
supported the NWP 24. One commenter
requested that the Corps retain the right
to veto or modify the State
Administered section 404 permits This
NWP authorizes only section 10
activities within the jurisdiction of the
state 404 program (i.e. historic navigable
waters). Therefore, It is inappropriate
for the Corps to modify, suspend, or
revoke individual state-administered
section 404 permits. However, it is noted
that the EPA has the right to conduct
programmatic reviews of the state-
administered section 404 programs
25 Structural Discharge: Several
commenters expressed support for this
NWP as a means of reducing regulatory
burdens on the public. Several
commenters requested that this NWP
specifically exclude non-water
dependent structures, except those
listed. We believe the wording
restricting this NIATP to structural
members for standard pile supported
structures, with the exclusions already
in place are adequate.
A few commenters requested an upper
limit on the area of impact authorized
under this NWP be included. Given the
limited actual footprint of Impact typical
of the types discussed in the NWP we
consider that such a limit is not
required.
A couple of commenters requested
that the structures referenced in RGL
90-8 be authorized in this NWP. The
appropriate inclusions from previous
RGLs have been Incorporated In these
NWPs and reflect the experience gained
in implementing the program in the past
Those not Included were conside
inappropriate for an NWP.
A couple of comments requesti
bulkheads and fill In special aquatic
sites be excluded from this NWP. We
believe that the NWP, as written,
excludes actual fill in special aquatic
sites and that bulkheads are not
standard pile supported structures
26, Headwaters and Isolated Waters
Discharges: In the Federal Register
notice of April10. 1991, we stated th ’t
we were considering changing the
acreage limits of NWP 28. Presently.
discharges of dredged or fill material
that cause the loss or substantial
adverse modification of one to 10 acres
of waters of the United States require a
predischarge notification. Activities th,it
affect less than one acre may proceed
without notifying the Corps. We
proposed 3 options for the acreage limits
that would define when a predischarge
notification must be submitted, and e
sought comments on these options
These options were:
Option 1 1 to 10 acres.
Option 2: 1 to 5 acres.
Option 3: Vs to 5 acres.
There are other acreage limits thai
could have been adopted and the Corps
sought comments on those as well
A great many comments were
received concerning the acreagr
appropriate for this NWP.
Approximately half the commenters
favored retaining the I to 10 acres
stating that many projects, including
those still in the planning stages, ha e
relied upon the flexibility offered by this
NWP. An equally large number of
commenters favored reducing the
acreage of this NWP stating that it
represents an unacceptable cumula ti ‘e
loss of wetlands. Some commenters
favored the total elimination of this
NWP since, in their view, it does not
conform with the provisions of section
404(e) of the Clean Water Act.
Based upon review of the comments,
and based on our experience and
judgement concerning the potential fur
adverse effects on the environment
associated with the various alternatives,
we determined that the appropriate
limits for this NWP at this time should
continue to be one (1) to ten (10) acres.
subject to the predischarge notification
and requiring mitigation to ensure that
adverse environmental effects are
minimal. Activities that affect less than
one (1) acre may proceed without
notifying the Corps. Those that affect
over 10 acres require authorizatlo.L
an individual or regional genera
Mitigation cannot be used to by
acreage limits (e.g., if a project au ts h
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acres of wetlands a prospective
permittee cannot create 1.1 acres to get
below the I acre limit). The Corps will
continue to monitor the effects of NWP
26 and the appropriateness of the
acreage limits as well as the categories
of waters that are appropriate for
coverage under NWP 28. If. in the future.
the Corps determines that lowering the
acreage limits or eliminating categories
of waters may be appropriate, the Corps
will propose such changes for public
comment. It must also be noted that the
Division Engineers and District
Engineers have, and will exercise.
discretionary authority to require
individual permits for activities in
certain water of the United States such
as high quality wetlands.
Many commenters recommended that
the resource agencies be included in the
notification process for this NWP. We
have decided to aolicst comments from
the resource agencies during our
notification process. This process is
discussed In the preamble language at
section 330.1(e). There were several
recommendations for minor revisions to
the language of this NWP and where
they would simplify or clarify the
meaning these changes were made.
The predischarge notification (PDN)
process and the requirement to make an
immediate determination of what
constitutes a loss or substantial
adverse modification” has made use of
this permit so complicated that it has
defeated the purpose of this NWP that
is. to reduce regulatory delays and
burdens on the public. to place greater
reliance on state and local controls, and
to free our limited resources for more
effective regulation of other activities
with greater potential for adverse effects
on the aquatic environment. As a part of
this regulation. we have modified the
complex 20-day PDN process currently
required for this NWP and replaced it
with a simple 30-day PON. Furthermore.
we have modified the acreage measured
from the “loss or substantial adverse
modification” to the filled area plus
flooded, excavated, or drained areas
These changes should reduce public
confusion and make adminIstration of
this NWP simpler by making the
determination of Its general applicability
clear-cut, while ensuring that large fills
in these waters with greater than
minima! adverse effects on the
environment are not authorized by this
NWP.
The term “filled area” refers to the
area of waters of the United States
actually covered by fill, and was
adopted rather than the area of
“substantial adverse modification.” in
order to simplify administration of this
permit. However, by including in the
acreage measurement of NWP 28,
waters of the United States that are
flooded, excavated. or drained, those
projects that would cause a “substantial
adverse modification” would no longer
qualify for the NWP. The notification
requirement would ensure that the DE
has the opportunity to consider such
indirect impacts from the discharge. If
the combined effect of direct and such
indirect adverse impacts would cause
more than minimal adverse effects on
the environment, the DE will assert
discretionary authority and not allow
authorization under the NWP unless the
prospective permittee elects to propose
mitigation so that the adverse
environmental effects would be
minimal
We believe that the activities
authorized by this NWP will have only
minimal adverse effects on the
environment both individually and
cumulatively, provided the terms and
conditions of the NWP are satisfied.
However, we recognize that there are
circumstances where authorization of a
specific activity under this NWP would
not be appropriate. Examples of this
type of situation may include certain
types of wetlands or other aquatic
resources, or aquatic resources in
certain parts of the country, or generally,
any areas where the Division or District
Engineer may have concerns for the
environment that are not satisfied by the
terms and conditions of this NWP. In
those cases, the Division or District
Engineer should assert discretionary
authority to add regional conditions or
to revoke the NWP authorization for
activities in such areas. We believe that
the Division and District Engineers are
more familiar with the wetlands and
other aquatic resources in their area and
can best determine which of these
should be subject to individual permit
evaluations or regional conditions. On
the other hand, we are encouraging
districts that have wetland types of low
value, where greater than ten (10) acres
of fill would result In no more than
minimal adverse environmental effects,
or where the wetlands are adequately
regulated by state or local agencies, to
develop regional general permits for
these areas.
We believe that our expanded basis
for allowing District and Division
Engineers to assert discretionary
authority, the modified notificatioo
procedures, the requirement for
mitigation, where appropriate, and the
revised language for this NWP. will
assure that only those projects with
minimal adverse effects on the
environment will be authorized by this
NWP. Moreover, we believe that
providing the District Engineers with a
clear message to protect the
environment while maintaining the
flexibility to use NWP 26 for acreage up
to 10 acres, particularly in low value
areas, is consistent with the
Administration’s desire to fully protect
our environment with the least burden
on the regulated public.
We have added a provision to NWP
26 which provides for certain
subdivisions to be treated as a single
and complete project for the purposes of
determ nang the acreage Jimrts of this
NWP. This provision was discussed
previously in the Preamble at Section
330.2(i).
27. Wetland Riporian, Restoration
and Creation Activities: Many
commenters opposed future discharges
of dredged and fill material associated
with reversion of a restored wetland on
private lands to its prior condition and
use. Several commenters stated they
believed these activities would result in
a waste of time and money. We believe
that allowing restoration of altered and
degraded wetlands that might not have
occurred without allowing the option of
reversion to its prior use and condition
is a good opportunity to increase aquatic
habitat even if it would be temporary.
We are of the opinion that many of
these projects would not be reverted
and therefore would provide increases
in permanent habitat over what
presently exists. We also clarify that
Federal surplus lands. Farmers Home
Administration inventory properties and
Resolution Trust Corporation inventory
properties that are under Federal control
prior to being transferred to the private
sector are not subject to reversion to
their prior condition under this NWP.
Several commenters recommended that
the Corps require the notification and
wetland delineation requirements and
conduct the monitoring and tracking of
these actions. We believe that a
notification requirement for this NWP
would be unnecessarily burdensome
since the activities authorized by this
NWP would be discussed in a contract
between the Federal government and a
landowner. We also believe that the
monitoring and tracking associated with
any future restoration or reversion is
best left with the federal contract
agency (USFWS, USFS, SCS, BLM),
since these agencies would possess
greater knowledge of the site and the
terms of the contract.
One conimenter believed that wetland
restoration projects would be difficult
and complicated and recommended an
individual permit be required for these
activities, We do not agree with this
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Federal Register / VoL 56. No. 220 / Friday. November 22. 1991 / Rules and Regulations 591Z,
comment because there have been many
sUccessful wetland restoration projects
around the nation. One comnienter
stated concerns for the degradation and
elimination of protected uses In
wetlands associated with the U. S.
Environmental Protection Agency’s anti-
degradation policy and whether the
NWP would apply to agreements In
effect before the Issuance of the final
rule. We believe that the purpose of
these restoration projects would not
conflict with uses associated with EPA’s
anti-degradation policy. One comnienter
recommended only applying the NWP to
activities involving 10 acres or less of
wetlands We believe this would greatly
limit the participation and opportunity
to provide enhancement of altered and
degraded wetlands.
Many commenters recommended
expanding the scope of the NWP to
include wetlands restoration projects
proposed by all Federal, state, local and
private entities. We believe that all
entities should be encouraged to
participate In wetland restoration
projects. We are concerned that
expanding this NWP to all entities could
provide for misuse since this is a
relatively new regulatory approach to
addressing these types of activities.
However, we did review other Federal
programs and believe it is appropriate to
include the wetland and nparlan
restoration projects of the U.S. Forest
Service IFS) and the Bureau of Land
Management (BLM) under this N’WP.
We believe the established
procedures of the USFWS, F’S, BLM and
the SCS are appropriate for this NWP.
The USF’VVS has restored approximately
55,000 acres of wetlands through
activities associated with private land
wetland restoration and protection
initiatives since 1987 and is presently
restoring wetlands on approximately
2,000 to 2,500 sites per year. Under the
1900 Farm Bill and other associated
private land wetland restoration
activities approved by Congress. it is
expected that the USFWS and the SCS
will accomplish 8,000 to 10.000 wetland
restoration projects per year. We would
encourage other entities that are
considering wetland restoration and
creation projects to enter into a contact
with the IJSFWS or the SCS, If
applicable, for authorization under this
NWP. We also encourage our DEs to
develop regional general permits to
reduce the regulatory burden and
paperwork associated with evaluating
other Federal. state, local and private
wetland restoration projects.
A few commenters requested that
tidal wetlands be included, particularly
those tidal wetlands in Federal, state
and municipal ownership. The present
programs of the USFWS, SCS, F’S, and
BLM apply primarily to non-tidal
wetlands. As a result, we believe only
non-tidal wetland restoration projects
are appropriate at this time. Some
commenters recommended that we
include wetlands that have not been
degraded or altered If subject to a
USFWS or SCS contract. We do not
believe It would be appropriate to
expand the scope of this NWP to include
wetland areas that are not altered or
degraded. A few commenters suggested
that the NWP would encourage
mitigation banking and serve to meet
the goal of no net loss of wetlands. We
agree that an Increase In wetland
restoration activities may generate
interest In mitigation banking. However,
we do not believe that the activities
authorized by this NWP can be
considered a mitigation bank, since the
restoration activities are generally for a
specified period of tune with a provision
for reversion of the area, and further, the
participating parties are generally
compensated by the USFWS or SCS.
One commenter recommended
expanding the scope to the creation of
wetlands in uplands areas where
discharge. of dredged and fill material
Into waters of the United States were
necessary for the creation. We agree
with this recommendation to include
wetland creation In certain upland
areas. It appears to us that appropriate
upland areas for consideration under
this NWP would be cropland. pasture
land, and other upland areas designated
suitable by the IJSFWS and the Corps.
We believe it would be appropriate to
authorize discharges of dredged and fill
material into waters of the United States
associated with the creation of wetlands
on above specified uplands and the
future discharges of dredged and fill
material associated with the reversion
of the area to its prior condition and use,
If subject to a contract with the USFWS,
F’S, BLM or SCS.
A few commenters recommended that
the Corps define “binding wetland
restoration contract”, “altered”, and
“degraded” to prevent potential abuse
of this N’VITP. One commenter stated that
activities under this NWP should be
coordinated with the resource agencies.
We believe the terms are clear when
consideration Is given to the wetland
and riparian restoration programs of the
USFWS, SCS, F’S, and BLM. We believe
that additional coordination with the
resource agencies is unnecessary given
the expertise of the agencies involved.
Additionally, with the inclusions of
ripartan and upland areas we believe a
more accurate title for this NWP would
be “Wetland Rlparlan, Restoration
Creation Activities”.
The term riparlan has not been
defined in this regulation. Since this
term is only referenced in this NWP
with applicability for those projects
funded or proposed by the U.S. Forest
Service, we have relied upon the
definition developed by the U.S. Forest
Service.
2& Mod,fica ions of F.x,sLing Marinas:
Several comrnenters requested that
notification be required to assure that
proposed activities are Indeed covered
activities. Notification should be
required by a regional condition if this is
warranted for a specific area. Two
commentere requested that additional
slips and docks formed from existing
floats, wIth no additional surface area
coverage, should be allowed. We
disagree with this request because the
intent Is not to allow any additional
slips or docks that could result In more
nioorage resulting in additional water
quality and navigational or safety
impacts. Several commenters objected
to the use of this NWP in required
mitigation areas. We believe that it
would be appropriate to add a special
condition to any individual permit
authorizing the marina and mitigatio”
areas to prevent future impacts to E
mitigation areas. if warranted. Few,
marinas contain such mitigation area .
Several commenters requested that the
movement of fuel handling and sewage
pump-out facilities be specifically
prohibited from being authorized by this
NWP. Again it would be more
appropriate to regionally condition this
NWP to prevent relocation of these
facilities, if warranted. Two commenters
objected because the use of this NWP
might impact design and safety
standards of previously authorized
marinas. If problems occurred, a DE
could use the modification procedures in
Section 330.5(d) to rectify the situation.
Also NWP General Condition I on
Navi8ation must be followed for the
NWP to be utilized.
29. Reserved.’ A few commenters
indicated that the reservation of NWP
29 was confusing. Some thought there
was a “hidden agenda”, (I.e., that we
might issue an NWP without public
review). We have been preparing the
revisions to the regulations and the
NWPs over the past 4 years. During that
period we have considered many
possible NWPs and deleted and added
several NWPs for possible proposal. To
avoid confusion, especially for recor -
keeping reasons, we decided not to
renumber those NWPs which were a
affected. For the same reason we are not
renumbering the proposed NWPs that
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we are not issuing. In addition to NWP
29. those NWP numbers will be
reserved, as well. When we prepare new
NWPs, they will be proposed at the
reserved numbers and will go through
the same public review process codified
at 33 CFR 330.
30. Reserved.
Dewatering Construction Sites
(Proposed as NWP 30): The acti ities
proposed for authorization by this NWP
are similar to the activities proposed for
NWP 33 and so they have been
combined.
32. Reserved.
Small Docks and Piers (Proposed as
NWP 31): Several commenters
expressed concerns about potential
cumulative impacts and opposed
issuance of this proposed NWP. Several
commenters also indicated that the
proposed NWP would have adverse
impacts on cultural resources, wildlife
habitat, and special aquatic sites A few
commenters proposed that special
aquatic sites within the vicinity of the
proposed dock/pier be delineated
Technical requirements such as size
limitations and construction materials
were the subject of several comments. A
few commenters Indicated that existing
Regional Permits are preferable to the
proposed NWP 31.
This NWP was proposed to authonze
relatively small docks and piers which
overall would have only minimal
impacts. This determination was made
in consideration of the limitations set
forth in the proposed NWP. We ha e
reviewed the comments received and
further discussed this proposed NWP
with Corps’ District staff. Out of
necessity, dock dimensions and
construction techniques vary widely to
meet special regional conditions and
needs. Consequently. we have
determined that this NW?, as written.
would be only minimally utilized on a
national basis. We also do not believe
that it is feasible to propose a
“universal” NWP (with appropriate
limitations) to authorize the various
types of small docks and piers that are
typically constructed. We agree with the
comnienters that regional permits are
the most appropriate mechanism for
streamlined permitting of these types of
structures. Therefore. we have deleted
this proposed NWP. Where regional
permits (RPs) have not been developed.
District Engineers will be encouraged to
develop RPs and/or to utilize the Letter
of Permission process to authorize small
docks and piers.
32. Completed Enforcement Actions:
Several coinmenters suggested that this
nationwide permit should be eliminated
and the violation be processed as an
individual permit. Some felt that
authorizing enforcement actions by
NWP would circumvent the intent of
Section 404 of the Clean Water Act.
Several commenters requested that the
NWP be rescinded unless provisions for
State input are included. Several
commentera requested that the NWP be
expanded to include all settlements and
not restricted to judicial determinations
Several commenters went so far as to
suggest that once the Corps/EPA have
decided on the appropriate restoration!
mitigation and/or administrative fine.
the remaining fill or structures and any
new work to accomplish the ordered
restoration/mitigation should be eligible
for this permit. Several commenters
suggested that the language be clarified
to ensure the nationwide permit was
intended only for those agreements
settled by the Corps or the EPA to
prevent local court decisions from tying
the hands of the federal government.
Several commenters felt the NWP
language was too vague as to the type of
activities covered and that in order to
understand the intent, the preamble had
to be read.
We do not agree that the NWP should
be eliminated and after.the-fact permits
be processed after a Federal judicial
decision has been made. In order to
reach an equitable environmentally
sound decision to resolve en illegal
activity, extensive coordination among
the Corps/EPA/U.S. Fish and Wildlife
Service/National Marine Fisheries
Service and the U.S. Department of
justice is required. The judicial decision
is binding and can only be changed by a
judicial modification to the document or
by a higher court. For this reason, this
nationwide permit Is not applicable to
non.judicial agreements since they are
subject to modification following a full
public interest review. In addition.
allowing non .judlclal agreements to be
included in the NWP could encourage
unauthorized activities. We do not agree
that in order for the NWP to apply, a
State’s approval would have to be
obtained. However, the fill or structure
authorized by the NW? has been
determined to have minimal impact on
the environment and the NWP is only
valid if the State has granted/waived
water quality certification and
determined the fill/structure complies
with their coastal zone management
program. However we have reworded
the language of this NW? to clarify that
it applies only to Federal court decisions
or settlements initiated by the Corps or
EPA. We believe that the adopted
language has clarified our intent and
that repeating the language of the
preamble in the NW? itself would be
redundant and unnecessary. We also
believe that the NWP is dear as to the
type and extent of activities it covers.
The NIATP would cover any section 404
and/or Section 10 activity that is
allowed to remain as part of a court-
ordered settlement or agreement agreed
to by the United States.
33. Tempomry Construction and
Access: The majority of the commenters
suggested establishing specific
limitations to the size, volume, and
duration of discharges or structures
authorized under this NWP and the
proposed NWP 30. Others objected to
the use of this permit to authorize fill in
wetlands and special aquatic sites.
Several of the commenters
recommended elimination of the
notification requirements. Others
indicated that the NW? might be used to
authorize mining activities or
excavation of manna basins. We have
combined NWPs 30 and 33 and have
clarified that they only apply to
construction fills associated with
projects that have already been
authorized by the Corps or the U.S.
Coast Guard and not to construction
activities in waters of the U S. which
would not otherwise be regulated. We
disagree with the suggestion to Include
specific limitations. The requirement for
notification will prevent any activities
from occurring under this NWP that
have more than minimal adverse effects
on the environment For this reason, the
proposed limitation on cofferdams not to
exceed 55% of the width of a waterway
has been deleted.
34. Cranberry Production Activities.:
In the Federal Register notice of April
10. 1991. the Corps sought comments on
the detriments and benefits of cranberry
production activities. possible
conditions or limits that could reduce
any adverse impacts, and types of
cranberry production activities that
should or should not be authorized by
nationwide permit. The overwhelming
majority of comments received were
from those involved in the cranberry
industry in support of a nationally
issued permit for cranberry operations.
The most commonly suggested language
included provisions for discharges that
would result in the expansion of existing
cranberry operations for 10 acres or less
per year per operator notification to the
DE in accordance with the notification
procedures; and provisions that the
expansion would not cause a net loss of
wetland acreage. Those commenting in
opposition to the proposed permit did
not provide alternative suggestions but
rather requested elimination of the
permit from consideration because
cranberry operations, both individually
and cumulatively, would result In more
than minimal adverse environmental
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Federal Register / Vol. 56, No. 226 / Friday, November 22. 1991 / Rules and Regulations 59129
effects. Their position was that
individual permit review was more
acceptable as the mechanism for
evaluating the Impacts of cranberry
related permit applications.
Consequently, most negative comments
did not even address the limited
suggestions used in requesting
conditions or limits under which a
nationwide permit might be issued.
There has been considerable Interest
from the cranberry growing industry in
developing a nationwide permit for
activities a8sociated with the production
of cranberries. There has also been
considerable concern expressed by state
and Federal resource agencies regarding
potential adverse impacts on aquatic
resources of cranberry production
activities, such as convertIng existing
natural wetlands into cranberry bogs.
The typical cranberry operation
involves clearing and leveling of
wetlands, conafructi on of dikes and
berms, Installation of water control
structures, ditching, and flooding. In
some circumstances, up to fifteen aces
of reservoir are set aside for each ace
of actual bed/bog. However, every
cranberry operation Is unique. There are
no standard sizes for cranberry beds
and no established water management
techniques. It is further recognized that
the commercial cultivation of
cranberries requires large quantities of
readily-available water. Some
commenters expressed concern over the
potential impacts to water quality
resulting from cranberry operations. We
believe that the DE will be able to
identify these potentially adverse
situations and assert discretionary
authority by adding activity-specific
conditions or requiring an individual
permit, if he feels that the adverse
environmental effects are more than
minimal or that the activity is contrary
to the public Interest We also believe
that it is In the best interest of the
cranberry growers themselves that they
strive to maintain water quality for the
benefit of their crops. This Is
particularly important for those
cranberry operations that recirculate
water within their beds for repeated use.
We believe that by limiting this NWP to
existing operations and requiring
notification to the DE, any adverse
effects to water quality resulting from
the actual discharges authorized by this
NWP, as well as the operation of these
facilities, will be mtnimaLFurthermore,
water quality standards are specifically
evaluated by the states through the
Section 401 Water Quality Certification -
process, which may generate additional
conditions on a regional basis.
Our difficulty in developing this
nationwide permit I . related to the
diversity of circumstances affecting
cranberry operations, and the difficulty
thus engendered in determining what is
a nationally acceptable permit. Some
activities associated with ongoing
cranberry growing operations have been
exempted by section 404(f) of the Clean
Water Act, leaving primarily
construction discharges associated with
expansions and new operations as
EctiVities to be regulated. The
nationwide permit Issued by this
regulation applies to discharges of
dredged or fill material for dikes, berm.,
pumps, water control structures or
clearing and grading of ‘beds associated
with expansion, enhancement or
modification activities at existing
cranberry production operations only
and does not authorize new cranberry
operations. This NWP Is in tended to
address those operations which exist at
the time this NWP Is effective. Any
changes in management or ownership of
existing operations to seek additional
use of this NI /lIP is not appropriate. With
regard to what we Identify as a single
operation, we believe that the definition
of the term “single and complete
project” found at 33 CFR 330.2 should
provide adequate guidance. Due to the
variability of cranberry cultivation
operations, we believe that the DE can
best determine what constitutes a single
and complete cultivation operation.
Generally, the expansion of an existing
operation would be contiguous or in
cose proximity to the existing
operation, It should be further noted that
this NWP only applies to discharges
required for the cultivation of
cranberries and does not apply to
related activities audi as warehouses,
processing plants, or parking areas.
We believe that new cranberry
operations are not burdened with
previous Investments and technology.
Accordingly, we have not included new
cranberry cultivation operations under
this NWP.
The scope of the nationwide permit
recommended by the cranberry Industry
is greater than the scope which we have
adopted for this nationwide permit.
However, we considered the potential
adverse effects on the environment, both
Individually and cumulatively, other
factors of the public interest, and the
utility of this nationwide permit
considering regional differences and the
likelihood of discretionary authority
being exercised at the time a district
was notified about a pending activity.
For those activities exceeding 10 acres
we believe It may be appropriate for
Division and District Engineers to
consider a regionally based generetd
permit. That type of negotiation w
exceed the scope of the investIgati
options used In developing this
nationwide permit
Several commenters expressed
concern over the impacts to fish and
wildlife resources resulting from the
removal of natural vegetation, it is
recognized by both wildlife experts and
the cranberry industry that the
replacement of natural vegetation with a
monocultw’e of cranberries will have an
adverse effect on wildlife values. The
diversity of wildlife is generally reduced
by a inonoculture environment.
However, wildlife values will not be
eliminated by cranberry beds and
reservoirs. Some species will be
encouraged in these areas. Pond or
reservoir modification could result in
increased wetland acreage by flooding
adjacent uplands. Reservoirs may also
support submerged aquatic vegetation
and open water areas to benefit
fisheries resources. By limiting this NWP
to expansion of existing facilities, we
believe that pristine wildlife habitat is
less likely to be adversely impacted.
Furthermore, we believe that
appropriate mitigation measures can be
developed during the notification
process to minimize the adverse dr
to wildlife resources.
Several commenters expressed air
objection to any nationwide permit for
cranberry activities. However, we have
determined that the activities that will
be authorized by this nationwide permit
are similar In nature and will be
properly conditioned so that they will.
both individually and cumulatively,
have only minimal adverse effects on
th” environment As with all NWPs, we
wilt hq monitoring the use of this NWP
anti if it appears that a modification or
rr,.ot-o -.on is appropriate, we will
int,a’e such action. Furthermore, we
iil have data upon which to reevaluate
this permit when it expires after 5 years.
F:nally, to address regional
difii-’rences in cranberry production
act!vpties we are encouraging the DEs to
w rk with the states and industry
coiicermng the need for and
accep abldity of regional conditions
ana/or general permits.
35. Main Lenance Dredging of Existing
Basms Many commenters indicated
that the proposed language is too vague.
Many commenters requested that
dredging volumes be limited and that
the NWP only apply to uncontaminated
sediments. Several commenters
requested a better understanding of
what constitutes a Corps approved
disposal site and whether or not this —
would indude any other site other than
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an upland site. Many cominenters
indicated that maintenance dredging
should only occur to previous
documented depths. Some commenters
requested that notification be Included
in the NWP. Some cominenters
requested that the NWP exclude
dredging in specia’ aquatic sites.
We do not agree with the approach of
placing an across the board limitation
on dredging volumes because this would
decrease the utility of the NWP.
However, we have modified the
language to eliminate vagueness and
more clearly define the intended
limitations for use of the NWP. As the
proposed language states the NWP is for
maintenance and Is therefore not
intended for new work dredging The
modified language will state
maintenance “to the lesser of previously
authorized depths or controlling depths
for ingress/egress”. The phrase ‘or a
Corps approved disposal site” will be
deleted. Areas containing contaminated
sediments have generally been
previously identified. We believe that
regional conditioning of this NWP would
be the appropriate mechanism to
address this issue. Regional conditions
can be developed to exclude known
contaminated areas (such as sites on the
NPL) or to require testing in areas of
suspected contamination. Furthermore.
we are encouraging DEs, where there is
reason to believe the material to be
dredged Is contaminated, to consider
exercising discretionary authority. it
should be pointed out that the NWPis
for upland disposal only and does not
authorize return water (see NWP 18).
Since the NWP Is for maintenance for
previously authorized work, adverse
effects on the environment have already
been considered or are expected to be
minimal.
36. Boat Ramps. Several commenters
suggested that this NV TP be subject to
the Notification requirements. The
Corps notes that no fill material would
be allowed to be discharged into special
aquatic sites as a parameter of this
NWP, and boat launch ramps are
exempt from NEPA documentation as
per 33 CFR part 325, appendix B. Given
this and the discretionary authority
provisions, we believe the Notification
requirement would be unduly
burdensome upon the regulated public.
Several commenters suggested
modifications to the limitations of this
NWP, but the Corps believes this NWP,
as written, adequately balances the
need for public access to the nation’s
waterways while protecting aquatic
resources. The wording of this NWP has
been changed to clarify that the 50 cubic
yard fill limitation pertains to fill placed
into waters of the United States and that
unsuitable material that causes
unacceptable chemical pollution or Is
structurally unstable is not authorized.
37. Emergency Watershed Protection:
Several commenters indicated that true
emergency situations require response
in less than 30 days and requested
notification time be reduced to 2 days.
Another commenter suggested the DE
should have discretion to wave 30 day
PDN procedure if emergency
necessitates immediate action. We have
retained the notification requirement for
this NWP. However, we have modified
the language of the 30-day time limit to
accommodate true emergency situations.
Under the revised notification a project
may proceed in less than 30 days
provided the DE has completed his
review and has notified the permittee.
Some commenters felt SCS approval
will not carry out the provisions of
section 404 since flood hazard projects
involve work in waterways which result
in the loss of fish and fish habitat. Other
commenters indicated SCS review
abdicates Corps responsibility for
reviewing proposals and protecting
wetlands and waterways and does not
comply with NEPA. Yet another
commenter suggested that the NWP be
expanded to cover all emergency public
flood control projects.
We disagree that the substantive
provisions of Section 404 or NEPA will
be avoided by this NWP. SCS, like all
other Federal agencies. must comply
with NEPA. Fish and Wildlife
Coordination Act. Endangered Species
Act, and all other Federal statutes and
Executive Orders. Iii addition, the DE
has the opportunity through the PDN
process to determine if individual
projects have more than minimal
adverse effects on the environment and
to require an individual permit. We also
disagree with including all emergency
public flood control projects since
compliance with Federal statutes and
Executive Orders could not be assured.
A number of commenters
recommended such restrictions to the
NWP as authorizing temporary
structures only. excluding stream
channelizatlon, prohibiting wetland
modification and alteration of wetland
hydrology or aquatic organisms
migratory pathways. We disagree that
these types of restrictions are necessary
in the NWP since the DR will have the
ability to review individual proposals to
determine if modifications are required
or If the adverse effects are more than
minimal thus requiring an individual
permit.
Several commenters suggested that
emergency plans be approved by State
and Federal fish and wildlife agencies
and EPA. We have modified the
notification process to include the
appropriate natural resource agencies.
However, we disagree with the
recommendation that the activity must
be approved by these agencies during
the Corps’ PDN process. It must be
noted, however, that an activity must
receive a specific 401 water quality
certification in those circumstances
where a state has denied water quality
certification for the NWP authorization.
Several commenters requested that
the term “emergency” be defined and
type and extent of projects authorized
should be clarified. The Corps has
defined the term “emergency” at 33 CFR
325.2(e)(4). and SCS exigency is defined
in 7 CFR part 624. Also, 7 CFR part 624
contains a description of the type of
projects which would be authorized.
The Forest Service has requested that
its Emergency Burned Area
Rehabilitation activities should be
included in this NWP. We have
considered their request and have
expanded this NWP to include activities
done by or funded by the Forest Service
under their Burned-Area Emergency
Rehabilitation Handbook.
38. Cleanup of Hazardous and Toxic
Waste: The Corps recognizes a potential
lack of Section 404 considerations in
cleanup orders and has included the
notification requirement with this NWP
to allow adequate review of any adverse
effects on the environment Three
cominenters suggested that a wetland
delineation Is not necessary, but we
believe they are necessary in order to
assess potential Impacts as part of the
notification process. A number of
commenters recommended that this
NWP not be implemented in view of the
potential for significant adverse
environmentaL impacts associated with
cleanups of hazardous or toxic wastes.
However, the Corps believes that this
NWP is appropriate, and that the
aquatic environment will benefit from
expeditious cleanup of such areas.
39. Reserved.
Agricultural Discharges (Proposed as
NWP 39): Most commenters were
confused regarding the type of activities
that would be permitted under this NWP
since Section 404(f) exempts normal
farming activities. Also, many were
confused by the preamble language
which discussed authorizing discharges
for silvacultural and aquacultural
activities, as well as agricultural
activities. Accordingly. many
commenters indicated the NWP was
either too open-ended or too restrictive.
Many commenters felt the NWP would
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Federal Register / Vol. 56. No. 226 I Friday. November 22. 1991 / Rules and Regulations 59131
not be useful to the agricultural
community.
We originally intended to cover
silvacultural and aquacultural activities
under this NW!’ but those activities
were dropped prior to publishing the
proposed rule. We agree the NWP as
proposed has little utihty and have
dropped it from the final rule.
40. Farm Buildings. Many commenters
opposed this NW!’ and stated that it
was vague and too broad, and
questioned its need. Several
commenters expressed the need to
define “agricultural related structures”
and “farming activities”, as well as to
establish size limitations. These
commenters were concerned that large
production facilities i.e. fertilizer plants,
processing and boarding facilities, and
other commercial structures would be
authorized by this NWP.
We share the concerns of the above
commenters and have provided
limitations and removed “agricultural
related structures necessary for farming
activities” from the NWP. This NW!’
will authorize farm buildings such as
equipment sheds, supply storage, animal
housing and production facilities located
on a farm or ranch. The fill for these
buildings arid associated grounds will be
limited to the minimum necessary, and
shall not involve filling more than one
acre of farmed wetlands.
Many commenters stated that these
agricultural-related structures were non-
water dependent and would result In
large cumulative losses to wetlands.
While most commenters recognized the
applicability of this NWP to only farmed
wetlands in agricultural production.
there was concern for the loss of the
functions and values these farmed
wetlands possess. Several commenters
stated concern for the release of
pesticides and pollutants to ground and
surface waters during flooding. Also,
that allowing agricultural related
structures in farmed wetlands was
counter to national efforts to discourage
construction In flood prone areas.
Another commenter expressed concern
for the loss to prairie potholes. playas,
and vernal pools as a result of this
NWP.
We believe that impacts to farmed
wetlands will be minimized in
accordance with section 404 condition
number 4. Also, that construction of
structures in flood prone areas would
most often be elevated to avoid flooding
and that this loss in flood storage would
be minimal both Individually and
cumulatively. We believe the release of
pollutants as a result of flooding would
be rare and should this occur the
impacts would be localized and have
minimal effect. Furthermore, we have
clarified that this NWP does not
authorize discharges into prairie
potholes, plays lakes, or vernal pools.
Several commenters requested that
this NW!’ should be subject to the
notification procedures and include a
delineation of special aquatic sites, and
that the NWP be coordinated with the
federal resource agencies One
commenter expressed concern that this
NW!’ would set a precedent for allowing
all types of buildings In wetlands.
Another commenter recommended that
all building pads and foundations up to
3,000 square feet in rural areas be
subject to this NW!’. One commenter
believed that agricultural related
structures would be constructed and
then their use converted to
nonagricultural purposes,
We believe that notification and
delineation of special aquatics sites is
uonecessary since this NW!’ only
applies to farmed wetlands that are
currently In agricultural production, and
further, this NW!’ has been modified to
limit the disturbance to one acre of
farmed wetlands. The farmed wetland
designation is assigned by the Soil
Conservalion Service. We do not agree
that this would be setting a precedent,
since there are specific conditions and
limitations to the types of activities
authorized by this NWP For this reason.
we do not agree with the
recommendation to allow all building
pads and foundations in wetlands in
rural areas. Furthermore, we beheve it is
unlikely that a farm building would be
constructed and then its use converted
to some use other than farming.
One commenter asked whether the
NW!’ applied to silvicultural and
aquacultural related buildings or
structures. A few commenters stated
that the NW!’ was necessary to
maintain farming operations and
suggested ways to minimize impacts.
Silvicultural and aquacultural related
buildings or structures are not
authorized by this NWP. We agree that
the NW!’ would benefit farming
operations and that minimizing impacts
is required.
Nationwide Permit Conditions
General Conditions
Several of the commenters questioned
the incorporation of the BMPs into the
NWP Conditions. They believed that the
BMPs are impractical, impossible to
achieve, and may constitute a taking
They felt that they are too vague to be
enforceable or easily complied with, and
that failure of a prospective permittee to
comply with a condition should not
trigger an enforcement action. The
Corps disagrees with these comments.
The BMPs are now being included
conditions in order to make then
enforceable. Flexibility Is built mr
conditions in response to differing
conditions throughout the nation. The
conditions do not constitute a taking of
private property, and we maintain that
enforcement actions are appropriate in
instances where a permittee fails to
adhere to the conditions.
1. Navigation: In response to
comments questioning the change from
previous policy on navigation, the Corps
believes the proposed wording Is more
appropriate in that navigational
interests are better protected.
2. Proper Maintenance: There were no
comments on this condition and it is
being adopted as proposed.
3. Erosion and Siltation: Several
comments were directed at the
“vagueness” of the wording of this
condition. The Corps believes that
parameters should not be specified in
that erosion and siltation control
methods vary throughout the nation.
4. Aquatic Life MovemenL Several
comments requested that the Corps
define activities which may
substantially disrupt aquatic life
movements, and others suggested that
the Corps require culverts be desi -
to facilitate passage of aquatic
organisms. The Corps believes U I
condition is sufficiently clear, and tTT t it
is not reasonable or practical for the
suggestion to be included as an NWP
condition. We did modify this condition
that this condition also pertains to
species which normally migrate through
the area as well as indigenous species.
5 Equipment: There were no
comments on this condition and it is
being adopted as proposed.
6 Regional and Case-by-Case
Conditions: There were no comments on
this condition and it is being adopted as
proposed.
7. Wild and Scenic Rivers: In
response to comments that state Wild &
Scenic Rivers apd state or national
Outstanding Resource Waters be added.
the Corps believes this Is neither
reasonable nor practical. -
8. Tribal Rights: In response to a
comment that tribes should be informed
of NWP activities, the Corps believes
the condition as worded is sufficient to
protect tribal rights.
9. Water Quality Certification: This
subject has been addressed in detail in
Section 330.4(c). After considerable
review of all comments, this condi . ’
has been retained as proposed.
10. Coastal Zone Management.
subject has been addressed IndelL u—nL
section 330.4(d). After considerable
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review of all comments, this conthtion
has been retained as proposed.
U. Eodanjered Spec The majority
of corn nP ti ’e objected to the use of the
language “or species proposed for such
designation” as being too vague and
unoerlain. Concern was also expressed
that such language implies that the
Corps is giving such species status they
are not entitled to under the Endangered
Species Act. This term is defined in the
ESA and is used in that context in this
regulation. Other commenters expressed
concern relative to the removal of
section 7 consultation requirements from
this condition. This requirement is now
located in 330.4(fl. After careful
evaluation of nil comments, the
language of this tondition has been
retained with only minor revisions.
12. Historic PzvpertJe8: Many
commenters objected to the term
“potentially eligible far listing” as being
too uncertain. We have replaced
“potentially” with “which the
prospective permittee has reason to
believe may be” to clarify this
statement.
Other commor!ters felt that tins
condition does not adeqaately address
the Corps responsibilities wider the
NHPA. We disagres. Thecorpe
procedures as outlined In this NWP
condition comply with the requirements
of 33 C ’R 325 appendix C. which
implements 38 CFR 800 and fully
satisfies the requirements of the NHPA.
13. NobfacoLion. We received a large
number of comments relating to this
condition. Our response to these
commentelias been addressed in the
preamble at section 330.1(e) and in the
General Comments for all NWPa. We
have modified the language concerning
the 30-day advance nnhfirjitinn to
address those concerns for emergency
situations. We have also added a
process requiring notification of the
natural resource agencies and
solicitation of their comments. As noted
previously In this document, we have
selected Mitigation Option 2 as a part of
the notification requirement. The
language of Ibis condition reflects this
decision.
In addition, In an effort to assist the
DE In obtaining Information needed by
the Corps to satisfy the requirements of
the A and NIWA. we have Included a
requirement that prospective permittees
include a statement in the PUN
certifying that they have contacted the
ap upz1ate Teseuros ageno regarding
the effects of the proposed activity on
endangered or threatened species and
or their criti l habitat. and on historic
properties. This statement should ale.
include any Information provided by the
(JSFWS and NMFS regarding the
presence o.tany endangered or
threatened species and/or their critical
habitat is or near the permit.area that
may be af ted by the proposed
activity and from the S} O regarding
the presence deny historic property in
the permit area that may be affected b
the proposed activity. This provision
does not require the prospective
permittee to delay transmittal of the
PDN until USFWS/NMFS and/or the
SI-IPO provide information. It does
require that the prospective permittee
contact these agencies to determine
whether any Information is available.
Furthermore, we encourage prospective
permittees to contact these agencies at
any time concerning these issues, even
for those NWP lvities that do not
require notification to the DE to assure
compliance with ESA and NHPA.
Section 41M Only Conditions
1. Water Supply Intakes: Three
commenters requested that “proximity”
to water supply intakes be defined. We
believe that it would not be prudent to
place a specific restriction on the
distance from a water supply intake on
a national level.
2. Shellfish Production: Several
commeoters requested clarification or
modification of this condstlon. but the
Corps believes this would be
inappropriate on a national leveL
3. Suitable Material: Several
comineriters recommended modification
of this condition, or that we include
EPA’ . list of toxins and toxic amounts.
Including such a list is not feasible in
that the condition would have to be
modified each time EPA’. list is
modified.
4. Mit igotioru The title of this
condition and the condition Itself have
been modified to state that discharges of
dredged orfill material mast be
minimized or avoided to the maximum
extent practicable at the proiect site.
unless the DE has approved a
compensation mitigation plan for the
specific regulated activity.
5. Spawning Areas: Several
commentera recommended that this
condition be expanded to Include
avoidance of other activities or that all
discharges In spawning areas during
spawning seasons be prohibited. The
Corps find, this unduly restrictive and
believes that the wording, a. adopted.
provides adequate protection.
8. Obsb’uction of mgh Flows: There
were no comments an this condition and
it is being adopted as proposed.
7. Adverse Impacts From
Impoun iis: The Corps is In
agreement with a reoommendaiion to
modify the wording of this condition to
require rnimmizatina to the maximum
extent practicable.
8. Waer jidAj * Arnas Several
ccunmeidars recommended that this
condition should be expanded to include
avoidance of other activities or
protection of additional resources, but
we believe this is unreasonable and
impractical and that The condition as
worded provides sufficient protection.
9. Removal of Ten porary Fills. One
commenter requested that establishment
of pre-existing soil, vegetation and
hydrologic conthltcms should also be
required. The Corps believes that
restoration of pTa-existing contour, is
sufficient.
Discretionary Authority
In addition to the NWP conditions
being required by the Chief of Engineers,
the division and district engineers may
add regional conditions or revoke NIATP
authorization for same or portions of the
NWPs. Regional conditions may also be
required by state Section 11 water
quality certification or for state coastal
zone consistency. When a State has
denied Section 401 Water Quality
Certifl t1nn or disagreed with the
Corps consistency determination for an
NWP as of the effective date of the
NWPs. the Corps will deny those
affected activities without prejudice on
the effective date. Subsequently, to
perform these actlvi es the applicant
must obtain a section )1 Water Quality
Certification or consistency certification
from the State. District Engineers will
announce regional conditions or
revocations by issuing local public
notices. Information on regional
condition. and revocations omi be
obtained from the apprupriate district
engineer as indicated below.
-Alabama
Mobile District Engineer. ATTN:
CESAM-CP-S, P .O. Box 2288, Mobile,
AL 38828 -0001.
Alaska
Alaska District Engineer, ATTN:
CENM.-CO-E. P.O. Box ,
Anchorage, .AX19516-0S80 .
Arizona
Los Angeles District Engineer, A1TN:
( -CO-R. P.O. Box VII. Los
Angeles. CA 80053-2325.
Little Rock District P.ngineer, AT1’N:
CESWL-CX)-P, P.O. Box 8&,Llttle Rock.
AR 72ZK3-0887.
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Federal Register I Vol. 56, No. 228 / Friday. November 22. 1991 / Rules and Regulations 59133
California Louisiana New Mexico
Sacramento District Engineer. AT’TN: New Orleans District Engineer. ATTN. Albuquerque District Engineer. AIIN
CESPK-CO-O. 650 Capitol Mall. CELMN-OD--S P.O. Box 60267. New CESWA.-CO..R. P.O. Box 1580.
Sacramento. CA 95814—4794. Orleans. LA 70160-4 )267. Albuquerque. NM 87103—1580.
Colorado Maine New York
Albuquerque District Engineer. ATTN: New England Division Engineer, New York District Engineer. ATTN:
CESWA-CO-R, P.O. Box 1580. AUN: CENED-OD-R, 424 Trapelo CENAN-OP-R. 28 Federal Plaza. New
Jbuquerque, NM 87103—1580. Road. Waltham. MA 02254—9149. York. NY 10278-0090.
Connecticut Maryland North Carolina
New England Division Engineer. Baltimore District Engineer. ArI’N. Wilmington District Engineer. ATTN.
CESAW-CO-E. P.O. Box 1890.
ATfN CENED-OD-R. 424 Trapelo CENAB-OP-R. P.O. Box 1715. Baltimore.
Road. Waltham. MA 02254-9149. MD 21203-1715. Wilmington. NC 28402-1890.
North Dolt ota
Delaware Mass qchu.qetts
Omaha District Engineer. ATTN:
Philadelphia District Engineer. ATTN. New England Division Engineer. CEMRO—OP—R. P.O. Box 5, Omaha. NE
CENAP-OP-R. U.S. Custom House. 2nd A1TN: CENED-OD-R. 424 Trapelo
and Chestnut Street. Philadelphia, PA Road, Waltham. MA 02254—9149.
19106—2991. Ohio
Michigan Huntington District Engineer. ATTN.
Florida
Detroit District Engineer. AUN: CEORH—OR-F. 502 8th Street.
Jacksonville District Engineer. ATTN. CENCE—CO—L. P.O. Box 1027, Detroit. Huntington. WV 25701—2070.
CESAJ—RD. P.O. Box 4970. Jacksonville. MI 48231—1027.
FL 32232-0019. Oklahoma
Minnesota Tulsa District Engineer. AT’rN:
Georgia
St. Paul District Engineer. ATTN: CESTOD.RF. P.O. BOx 61. Tulsa. OK
Savannah District Engineer. ATTN: CENCS—CO—R, 180 Kell Blvd. E.. 74121-0061.
CESAS-OP-F, P.O. Box 889: Savannah.
Room 1421. St. Paul. MN 55101—1479. Oregon
GA 31402-0889.
Hawaii Mlsslssi)L ,pi Portland District Engineer. ATTN.
CENPP-PL-R. P.O Box 2946, Portland,
Honolulu District Engineer, AITN• Vicksburg District Engineer. ATI’N: OR
CEPOD—CO-O. Building 230, Fort CELMK—OD—F, 3515 1—20 Frontage Road.
Shafter. Honolulu, HI 96 5440 Vicksburg. MS 39180—5191. Pennsylvania
Idaho Missouri Baltimore District Engineer. A.
CENAB-OP-R. P.O. Box 1715. Baltimoi e.
Walla Walla District Engineer. ATTN: Kansas City District Engineer. ATTN MD 21203—1715.
CENPW-OP—RF. Building 602. City- CEMRK-OD—P. 700 Federal Building. 601
County Airport. Walla Walla. WA E. 12th Street. Kansas City. MO 64106- Rhode Island
99362—9265. 2896. New England Division Engineer.
ATTN CENED-OD-R. 424 Trapelo
Illinois Montana Road. Waltham, MA 02254—9149.
Rock Island DistricL Engineer. ATrN. Omaha District Engineer. ATTN South Carolina
CENCR-OD-S. Clock Tower Building. CEMRO-OP-R, P 0 Box 5. Omaha, NE
Rock Island, IL 61201—2004. 68101 0o05. Charleston District Engineer. A1TN:
CESAC-CO—P. P.O. Box 919. Charleston.
Ind iana Nebraska SC 29402-0919.
Louisville District Engineer. ATTN: Omaha District Engineer. ATTN South Dakota
CEORL.-OR.-F. P.O. Box 59, Louisville. CEMRO-OP-R. P.O. Box 5. Omaha. NE
KY 40201-0059. 68101-0005. Omaha District Engineer. AUN:
CEMRO-OP-R. P.O. Box 5, Omaha. NE
Iowa Nevada 681o1-ooo5.
Rock island District Engineer. ATTN: Sacramento District Engineer. ATFN: Tennessee
CENCR—OD-S. Clock Tower Building. CESPK-CO-O. 650 CapitoL Mall. Nashville District Engineer. ATTN:
Rock Island. IL 61201-2004. Sacramento, CA 95814-4794. CEORN-OR-F, P0. Box 1070, Nashville.
Kansas New Hampshire TN 37202-1070.
Kansas City District Engineer. ATTN: New England Division Engineer. Texas
CEMRK-.OD-P, 700 Federal Building. 601 AUN: CENED-OD-R. 424 Trapelo Ft. Worth District Engineer. ATTN.
E. 12th Street. Kansas City, MO 64106— Road. Waltham. MA 02254—9149. CESWF-OD-O, P.O. Box 17300. Ft.
2896. Worth. TX 76102—0300.
New Jersey
Kentucky Utah
Philadelphia District Engineer. ATTN. -
Louisville District Engineer, ATTN: CENAP—OP--R. U.S. Custom House, 2nd Sacramento District Engineer. ‘ N:
CEORL-OR—F. P.O. Box 59, Louisville. and Chestnut Street. Philadelphia, PA CESPK-CO--O, 650 Capitol Mall
KY 40201-0059. 19106—2991. Sacramento, CA 95814-4794.
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- - -o
Vermont
New England Orvision &gineer.
ATrN: CEPIIED—CJD-R, 424 Trapelo
Road, Waltham, t4A 1254—9w.
Virginia
Norfdlk District Engineer. ATTN
CENAO-OP-P, 603 Pront Street,
Norfolk, VA 23510—11 6
Washington
Sent tie District Engineer. ATTN
CENPS-OP-RC. P 0 Box C-3755.
Seattle, WA 96124—2255
West Virginia
HurrtinglonThstrict Engineer. ATTN
CEORH—OR-F. 502 8th Street,
l-luntington, WV 25701—2070
Wisconsin
St. Paul District Engineer. ATTN
CENCS—CO-R. 1421 USPO & Custom
I-louse, St Paul. MN 5511)1—9806
Wyoming
Omaha District Engineer. ATTN
CEMRO—OP-R. P0 Box 5. Omaha. NE
68101-0005.
District of Columbia
Baltimore District Engineer. ATTN:
CENAB-OP--R. P 0 Box 1715. Baltimore.
MD 21203-1715
Pacific Territories
Honolulu District Engineer. ATTN.
CEPOD-CO-O. Building 0. Fort
Shafter, Honolulu. HI 96858-5440
Puerto Rico & Virgin Is
Jacksonville District Engineer. ATI’N.
CESAJ-RD.P.O. Box 4gi’O. Jacksonville.
FL 32232-W19.
Environmental Documentation
We have determined that this action
does not constitute a major Federal
action significantly affecting the quality
of the human environment.
Environmental documentation has been
prepared for each nationwide permil
Accordingly, for actions where there is
other Federal agency involvement, there
is no need to conduct an independent
review of The other Federal agency’s
NEPA documentation under ) CFR
1506.3(c). The Corps documentation
includes an environmental assessment
and, where relevant, a section 404(b)(’I)
Guidelines compliance review. Copies of
these dacaments are available lOT
inspection at the office of the Chief uI
Enguieers and at each Corps district
office Based on these documents the
Corps has deterimaed that the NWP
comply with the sequirements for
issuance under general permit authority.
Note 1—The Department of the Anny as
determined that this document does not
contains major rule requiring a na tory
impac* analysi, under Eiiacatiee Order 1Z 1
because it will not resn in an aniuml effe
on the economy of $100 million or more and it
will not result in a major increase in co 5tsor
prices
Note 2—The term “he” and its derivatives
used in these reguiatmns are generic and
should be considered sa applying to both
male and female
I hereby certify that this matter will
have no-significant negative impact on a
substantial rrnmber of small eatmes
within the meaning and intent of the
Regulatory Flexibility Act, 5 U.S.C. 601
et seq.
List of Subjects in 33 CFR Part 330
Administratrve practice and
procedure, Intergovernmental relations,
Navigation (water). Water pollution
control, Waterways.
Deted November 12. 1991
Approved
Nancy P. Dorn.
Assistant Secretary of the Army (Civil
Works)
Accordingly. 33 CFR part 330 is
revised to read as follows.
PART 330- .-NAT1ONWIDE PERMIT
PROORMI
Se
3301 Purpose and policy
330.2 Definitions.
330.3 Activities occumng before certain
datee.
a4 Conthlio hmdalwns. and
reihictious
3305 Issuing, modifying. suspending. or
revoking nationwide pernuts and
authorizations
3306 Authonzation by nationwide permit
Appendix A to Pn 380—Nationwide Pannits
and Conditions
Autbonty 33 U SC. 401 et seq. 33 U S.C.
1344:33 U.S.C. 1413.
336.1 Pu osO and po&y.
fa)hipose.This part describes the
policy and procedures used in the
Department of the Army’s nationwide
permit program to issue, modify.
suspend. or revoke nationwide permits;
to identify oonditions. limitations, and
restrictions an the nationwide pnnits
and, to identify any procedures. whether
required or optional, for authorization
by nationwide permits.
(b) N wile permito. Nationwide
permits fNWP) me a type of general
permit issued by the Chief of Engineers
and are designed to regulate with little,
fairy, delay ’ paperwoi4iwtain
ac v1ties virtg minimal impacts. The
NV . me p oposed. Issued. modified.
reissued (extended). and revoked from
time to time after an opportunity for
public notice and comment. Proposed
NWPs or modifications to or reissuance
of existing N’W’Ps will be adopted only
after the Corps gives notice and allows
the public an opportunity to conuaent on
and request a public hearing regarding
the proposals. The Corps will give full
consideration to all comments received
prior to reaching a final decision.
(c) Terms and conditions. An activity
is authorized under an NWP only if that
activity and the pernnttee satisfy all of
the NWP’s terms and conditions
Activities That do not qualify for
authorization under an NWP still may
be authorized by an individual or
regional general permit The Corps will
consider unauthorized any activity
requiring Corps authorization if that
activity is under construction or
completed and does not comply wsth aH
of the terms and conditions of an NWP.
regional general permit. or an md’widual
permit. The Corps will evaluate
unauthorized activities for enforcement
action under 33 CFR part 326. The
district engineer (DE) may elect to
suspend en1oj cement proceedings if the
permittee modifies his project to comply
with an NWP or a regional general
permit After considering whether a
violation was knowing or intentional.
and other indications of the need for a
penalty, the DE can elect to terminate an
enforcement proceeding with an after.
the-fact authorization under an NWP. if
all terms and conditions of the NWP
have been satisfied, either before or
after the activity has been
accomplished.
(d) Discretionary authority. District
and division engineers have been
delegated a discretionary authority to
suspend. modify, or revoke
authorizations under an NWP. This
discretionary authority may be used by
district and division engineers only to
further condition or restrict the
applicability of en NWP kr cases where
theyhaveconcernsfo tire aquatic
environment under the Clean Waler .Act
section 404(b)(1) Guidelines or for any
factor of the public interest. Because of
the nature of most activities authorized
by NWP. district and division engineers
will not have to review every s
activity to decide whether to exercise
discretionary authority. The terms and
conditionsof certain NWP require the
DE hi i’evrew the pri osed activity
before the NWP authorizes its
construction. However, the DE has the
discretionary authority to review any
activity authorized by NIIVP to
detennine whether tire activity comp t ie S
with theNWP.fftheDE fld$that the
proposed activity would have mote than
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Federal Re 1ster / Vol. £6, No. 226 / Friday., November 22, 1991 I Rules and Regulations
minimal individual or cumulative net
adverse effects on the environment or
otherwise may be contraiy to the public
Interest, he shall modify the NWP
authorization to reduce or eliminate
those adverseeffects, or he shall
instruct the prospective permittee to
apply for a regional general permit or an
individual permit Discretionaiy
authority is also discussed at 33 CFR
330.4(e) and 330.5.
(e) Notifications. (1) In most cases,
permittees may proceed with activities
authorized by NWPs without notifying
the DE. However, the prospective
permittee should carefully review the
language of the NWP to ascertain
whether he must notify the BE prior to
commencing the authorized activity. For
NWPs requiring advance notification.
such notification must be made in
writing as early as possible prior to
commencing the proposed activity. The
permlttee may presume that his project
qualifies for the NWP unless he is
otherwise notified by the BE within a
30-day period.The 30-day period starts
on the date of receipt of the notification
In the Corps district office and ends 30
calendar days later regardless of
weekends or holidays If the DE notifies
the prospective permittee that the
notification Is incomplete. a new 30-day
period will commence upon receipt of
the revised notification The prospective
permittee may not proceed with the
proposed activity before expiration of
the 30-day period unless otherwise
notified by the DE. if the BE fails to act
within the 30-day period, he must use
the procedures of 33 CFR 3305 in order
to modify, suspend, or revoke the NWP
authorization
(2) The BE will review the notification
and may arid activity-specific conditions
to ensure that the activity complies with
the terms and conditions of the NWP
and that the adverse impacts on the
aquatic environment and other aspects
of the public Interest are individually
and cumulatively minimal.
(3) For some NWPs Involving
discharges into wetlands, the
notification must include a wetland
delineation. ‘The DE will review the
notification and determine If the
individual and cumulative adverse
environmental effects are more than
minimal, if the adverse effects are more
than minimal the DE will notify the
prospective permittee that -an individual
permit is required or that the
prospective permittee may propose
measures to mitigate the loss of special
aquatic sites, including wetlands, to
,eduoe the adverse impacts to minimal.
The prospective permittee may elect ‘to
propose mitigation with the original
notification. The BE will consider -that
proposed mitigation when deciding if
the impacts are’mlnimaL The DE shall
add activity-specific conditions to
ensure that the mitigation will be
accomplished. if sufficient mitigation
cannot be developed to reduce the
adverse environmental effects to the
minimal level, the BE will not allow
authorization under the NWP and will
instruct the prospective permittee on
procedures to seek authorization under
an individual permit.
(I) lnthvidualApplications. DEs
should review all Incoming applications
for individual permits for possible
eltgibility under regional general permits
or NWPs. if the activity complies with
the terms and conditions of one or more
NWP, be should verify the authorization
and so notify the applicant If the BE
determines that the activity could
comply after reasonable project
modifications and/or activity-specific
conditions. he should notify the
applicant of such modifications and
conditions, If such modifications and
conditions are accepted by the
applicant, verbally or in writing, the DE
will verify the authorization with the
modifications and conditions in
accordance with 33 CFR 330.6(a)
However, the BE will proceed with
processing the application as an
individual permit and take the
appropriate action within 15 calendar
days of receipt. in accordance with 33
CFR 325.2(a)(2), unless the applicant
indicates that be will accept the
modifications or conditions.
(g) Authority. NWPs can be issued to
satisfy the permit requirements of
section 10 of the Rivers and Harbors Act
of 1899. section 404 of the Clean Water
Act. section 103 of the Marine
Protection. Research, and Sanctuaries
Act, or some combination thereof. The
applicable authority will be indicated at
the end of each 1IWP. NWPs and their
conditions previously published at 33
CFR 330.5 and 330.6 will remain in effect
until they expire or are modified or
revoked in accordance with the
procedures of this part.
* 330.2 DefinitIon..
(a) The definitions found in 33 CF
parts 320 -329 are applicable to the terms
used in this part.
(b) Notion wide permit refers to a type
of general permit which authorizes
activities on a nationwide basis unless
specifically limited. fAnother type of
general permit is a “regional permit”
which is issued by division or district
engineers on a regions] basis in -
accordance with 33 CFR part 325). (See
33 CFR 22.2f 1) and 323.2(h) for the
definition of a general permit.)
(c) Authorization means that specific
activities that qualify for an NW u
proceed, provided that the ten
conditions-of the NWP are met
determining that the activity complies
with all applicable terms and conditions.
the prospective permittee may assume
an authorization under an NWP. This
assumption is subject to the DEs
authonty to determine if an activity
complies with the terms and conditions
of an NWP. If requested by the
permittee in writing, the DE will verify
in writing that the permittee’s proposed
activity complies with the terms and
conditions of the NWP. A wnttan
verification may contain activity-
specific conditions and regional
conditions which a permittee must
satisfy for the authorization to be valid
(d) Hew/waters means non-tidal
rivers, streams, and their lakes and
impoundments, including adjacent
wetlands, that are part of a surface
tributary system to an interstate or
navigable water of the United States
upstream of the point on the river or
stream at which the average annual flow
is lee. than five cubic feet per second
The DE may estimate this point from
available data by using the mean annual
area precipitation, area drainage basin
maps, and the average runoff coefficient
or by similar-means. For streaim
are dry for lbng periods of the
may establish the point where
headwaters begin as that point on the
stream where a flow of five cubic feet
per second is equaled or exceeded 50
percent of the time.
(e) Isolated waters means those non-
tidal waters of the United States that
are.
(1) Not part of a surface tributary
system to interstate or navigable waters
of the United States; and
(2) Not adjacent to such tributary
waterbodies.
(f) Filled area means the area within
jurisdictional waters which is eliminated
or covered as a direct result of the
discharge (i.e.. the area actually covered
by the discharged material). It does not
include areas excavated nor areas
impacted as an indirect effect of the fill
(g) Discretionary authority means the
authority -described in 1* 330.1(d) and
330.4(e) wluch the Chief of Engineers
delegates to division or district
engineers to modify -an NWP
authorization by adding conditions, to
suspend an NWPauthorization, or to
revoke an NWP authorization and thus
require individual permit authorization
(h) Terms and conditions. The “ is”
of an NWP.are the limitations e
provisions included in the desc.
the NWP itself. The “conditions
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NWPs are additional provisions which
place restrictions or limitations on all of
the NWPs. These are published with the
NWPs. Other conditions may be
imposed by district or division engineers
on a geographic, category-of-activity, or
activity-specific basis (See 33 CFR
330 4(e)).
(i) Single and complete project means
the total project proposed or
accomplished by one owner/developer
or partnership or other association of
owners/developers. For example, if
construction of a residential
development affects several different
areas of a headwater or isolated water.
or several different headwaters or
isolated waters, the cumulative total of
all filled areas should be the basis for
deciding whether or not the project will
be covered by an NWP. For linear
projects, the “single and complete
project” (i.e. single and complete
crossing) will apply to each crossing of a
separate water of the United States (i e.
single waterbody) at that location.
except that for linear projects crossing a
single waterbody several times at
separate and distant locations, each
crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arms of a large, irregularly-
shaped wetland or lake, etc., are not
separate waterbodies.
) Special aquatic sites means
wetlands, mudflats, vegetated shallows.
coral reefs, riffle and pool complexes,
sanctuaries, and refuges as defined at 40
CFR 230.40 through 230.45.
330.3 ActivIties occurring before certain
dates.
The following activities were
permitted by NWPs issued on July 19.
1977, and, unless the activities are
modified, they do not require further
permitting:
(a) Discharges of dredged or fill
material into waters of the United States
outside the limits of navigable waters of
the United States that occurred before
the phase-in dates which extended
Section 404 jurisdiction to all waters of
the United States. The phase-in dates
were’ After July 25.1975. dIscharges into
navigable waters of the United States
and adJacent wetlands: after September
1. 1976, discharges into navigable waters
of the United States and their primary
tributaries, including adjacent wetlands,
and into natural lakes, greater than 5
acres in surface area: and after July 1,
1977. discharges into all waters of the
United States, including wetlands.
(section 404)
(b) Structures or work completed
before December 18, 1968. or in
waterbodies over which the DE had not
asserted jurisdiction at the time the
activity occurred, provided in both
instances, there is no interference with
navigation. Activities completed
shoreward of applicable Federal Harbor
lines before May 27. 1970 do not require
specific authorization. (section 10) -
§ 330.4 Conditions, limitations, and
restrictions.
(a) General. A prospective permittee
must satisfy all terms and conditions of
an NWP for a valid authorization to
occur. Some conditions identify a
“threshold” that, if met, requires
additional procedures or provisions
contained in other paragraphs in this
section. It is important to remember that
the NWPs only authorize activities from
the perspective of the Corps regulatory
authorities and that other Federal, state.
and local permits, approvals, or
authorizations may also be required.
(b) Further information (1) DEs have
authority to determine if an activity
complies with the terms and conditions
of an NWP.
(2) NWPs do not obviate the need to
obtain other Federal. state, or local
permits, approvals, or authorizations
required by law.
(3) NWPs do not grant any property
r’ghta or exclusive privileges.
(4) NWPs do not authorize any injury
to the property or rights of others.
(5) NWPs do not authorize
interference with any existing or
proposed Federal project.
(c) State 401 water quality
certification. (1) State 401 water quality
certification pursuant to section 401 of
the Clean Water Act, or waiver thereof,
is required prior to the issuance or
reissuance of NWPs authorizing
activities which may result in a
discharge into waters of the United
States.
(2) II, prior to the issuance or
reissuance of such NWPs, a state issues
a 401 water quality certification which
includes special conditions, the division
engineer will make these special
conditions regional conditions of the
NWP for activities which may result in a
discharge into waters of United States in
that state, unless he determines that
such conditions do not comply with the
provisions of 33 CFR 325.4. In the latter
case, the conditioned 401 water quality
certification will be considered a denial
of the certification (see paragraph (c)(3)
of this section).
(3) If a state denies a required 401
water quality certification for an activity
otherwise meeting the terms and
conditions of a particular NWP, that
NWP’s authorization for all such
activities within that state is denied
without prejudice until the state issues
an individual 401 water quality
certification or waives its right to do so
State denial of 401 water quality
certification for any specific NWP
affects only those activities which may
result in a discharge. That NWP
continues to authorize activities which
could not reasonably be expected to
result in discharges into waters of the
United States i
(4) DEs will take appropriate
measures to inform the public of which
activities, waterbodies. or regions
require an individual 401 water quality
certification before authorization by
NWP.
(5) The DE will not require or process
an individual permit application for an
activity which may result in a discharge
and otherwise qualifies for an NWP
solely on the basis that the 401 water
quality certification has been denied for
that NWP. However, the district or
division engineer may consider water
quality, among other appropriate
factors, in determining whether to
exercise his discretionary authority and
require a regional general permit or an
individual permit.
(6) In instances where a state has
denied the 401 water quality
certification for discharges under a
particular NWP, permittees must furnish
the DE with an individual 401 water
quality certification or a copy of the
application to the state for such
certification. For NWPs for which a
state has denied the 401 water quality
certification, the DE will determine a
reasonable period of time after receipt
of the request for an activity-specific 401
water quality certification (generally 60
days), upon the expiration of which the
DE will presume state waiver of the
certification for the individual activity
covered by the NWP’s. However, the DE
and the state may negotiate for
additional time for the 401 water quality
certification, but in no event shall the
period exceed one (1) year (see 33 CFR
325.2(b)(1)(ii)). Upon receipt of an
individual 401 water quality
‘NWPs numbered 1.2.8.9.10,11,19. 24. 25, end
38. do not require 401 water quality certification
since they would authorix. activities which. in the
opinion of the Corps. could not reasonably be
eapected to result Ins discharge and In the case a!
NWP Si. seaward of the territorial seas. NWPs
numbered 3,4,3,0,7,13.1418.20,21.22.23. V. 32.
38.37, end 38. involve various activities, some of
which may result In a discharge end requIre 401
water quality certification. and others of which do
not. State denial of 401 water quality certification
for any specific NWP in this category affects only
those activities which may result in a discharge For
those activities not involving discharges. the .‘WP
remains In effect. NWP numbered 12. 15. iS, 17. 25.
28, and 40 Involve activities which would result in
discharges and therefore 401 water quality
certification I. required.
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Federal Register f Vol. 56, No. 228/ Friday, November 22. 1991 j ules and Regulations 59137
certification, or if the prospective
permittee demonstrates to the DE state
waiver of such certification, the
proposed worii can be authorized under
the NWP. For NWPs requiring a 30-day
predischarge notification the district
engineer will immediately begin, and
complete, his .reviewprior to-the state
action on the individual section 401
water quality certification. ILa state
issues a conditioned individual 401
water quality certification for an
individual activity, the DE will Include
those conditions as activity-specific
conditions of the NWP.
(7) Where a state, after Issuing a 401
water quality certification for an NWP,
subsequently attempts to withdraw It for
substantive reasons after the effective
date of the NWP. the division engineer
will review those reasons and consider
whether there Is substantial basis for
suspension, modification, or revocation
of the NWP authorization as outlined in
330.5. Otherwise, such attempted state
withdrawal Is not effective and the
Corps will consider the state
certification to be valid for the NYu?
authorizations until such time as the
NWP is modified or reissued.
(d) Coastal zone management
consistency determination. (1) SectIon
307(c)(1) of the Coastal Zone
Management Act (CZMA) requires the
Corps to provide a consistency
determination and receive state
agreement prior to the Issuance,
reissuance, or expansion of activities
authorized by an NWP that authorizes
activities within a state with a
Federally-approved Coastal
Management Program when activities
that would occur within, or outside, that
state’s coastal zone will affect land or
water uses or natural resources of the
state’s coastal zone.
(2) If, prior to the issuance, reissuance,
or expansion of activities authorized by
an NWP, a state indicates that
additional conditions are necessary for
the state to agree with the Corps
consistency determination, the division
engineer will make such conditions
regional conditions for the ! ‘JWP in that
state, -unless he determines that the
conditions do not comply with the
provisions of 33 CFR 325.4 or beheves
for some other Bpeciflc reason It would
be inappropriate to include the
conditions. In this case, the state’s
failure to agree with the Corps
consistency determination without the
conditions -will be considered to be a
disagreement with the Corps
consistency determination.
(3) When a state has disagreed with
the Corps consistency determination,
authorization for.all such activities
occurring within or outside ‘the state’s
coastal zone that affect land or water
uses or natural resources of the state’s
coastal zone is denied without prejudice
until the prospective permittee furnishes
the DE an Individual consistency
certification pursuant to section
307(c)(3) of the CZMA and demonstrates
that the state has concurred in it (either
on an individual or generic basis), or
that concurrence should be presumed
(see paragraph (d)(6) of this section).
(4) DEs will take appropriate
measures, such as public notices, to
Inform the public of which activities,
waterbodies. or regions require
prospective permittees to make an
individual consistency determination
and seek concurrence from the state.
(5) DEs will not require or process an
individual permit application for an
activity otherwise qualifying for an
NWP solely on the basis that the
activity has not received CZMA
consistency agreement from the state.
However, the district or division
engineer may consider that factor.
among other appropriate factors, in
determining whether to exercise his
discretionary authority and require a
region.al general permit or an individual
permit application.
(6) In instances where a state has
disagreed with the Corps consistency
determination for activities under a
particular NWP, permittees must furnish
the DE with an Individual consistency
concurrence or a copy of the consistency
certification provided to the state for
concurrence. If a state fails to act on a
permittee’s consistency certification
within six months after receipt by the
state, concurrence will be presumed.
Upon receipt of an Individual
consistency concurrence or upon
presumed consistency, the proposed
work is authorized if it complies with all
terms and conditions of the NWP. For
NV%TPs requiring a 30-day predischarge
notification the DE will immediately
begin, and may complete, his review
prior to the state action on the
individual consistency certification. If a
state indicates that individual
conditions are necessary for consistency
with the state’s Federally-approved
coastal management program for that
individual activity, the DE will Include
those conditions as activity-specific
conditions of the NWP unless he
determines that such conditions do not
comply with the provisions of 33 CFR
3254. In the latter case the DE will
consider the conditioned concurrence as
a nonconcurrence unless the permittee
chooses to comply voluntarily with all
the conditions in -the conditioned
concurrence.
(7) Where a state, afteragreeing with
the Corps -consistency determination,
subsequently attempts to rever -
agreement for substantive reai
the effective date of the .NWP,
division engineer will review th
reasons and consider whether there is
substantial -basis for suspension,
modification. or revocation as oullined
in 33 CFR 330.5. Otherwise, such
attempted reversal is not effective and
the Corps will consider the state CZMA
consistency agreement to be valid for
the NWP authorization until such time
as the NWP Is modified or reissued.
(8) Federal activities must be
consistent with a state’s Federally-
approved coastal management program
to the maidmum extent practicable.
Federal agencies should follow their
own procedure. and the Department of
Commerce regulations appearing at 15
CFR Part 930 to meet the requirements
of the CZMA. Therefore. the provisions
of 33 CFR 3304(d)(1H7) do not apply to
Federal activities. Indian ‘fribes doing
work on Indian Reservation lands shall
be treated In the same manner as
Federal applicants.
(e) Discretionary authority. The Corps
reserves the right (i.e., discretion) to
modify, suspend, or revoke NWP
authorizations. Modification means the
imposition of additional or revised term’
or conditions on the authoriza
Suspension means the tempor
cancellation of the authorizatk,, iv e
decision is made to either modify,
revoke, or reinstate the authorization.
Revocation means the cancellation of
the authorization. The procedures for
modifying, suspending. or revoking NWI
authorizations are detailed lii 330.5.
(1) A division engineer may assert
discretionary authority by modifying,
suspending, or revoking N’WP
authorizations for a specific geographic
area, class of activity, or class of waters
within his division, including on a
statewide basis, whenever he
determines sufficient concerns for the
environment under the section 4(M(b)(1)
Guidelines or any other factor of the
public interest so requires, or if he
otherwise determines that the NWP
would result In more than minimal
adverse environmental effects either
Individually or cumulatively.
(2) A DE may assert discretionary
authority by modifying. suspending. or
revoking NW? authorization br a
specific activity whenever he
determines sufficient concerns for the
environment or any other factor of the
public interest so requires. Whenever
the DE determines that a proposed
specific activity covered by ar
would have more than -mmm i
individual cr,cumulative.adveri acts
on theanirironment orotherwIse may bc
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contrary to the public interest, he must
either modify the NWP authorization to
reduce or eliminate the adverse impacts.
or notify the prospective permittee that
the proposed activity is not authorized
by NWP and provide instructions on
how to seek authorization under a
regional general or individual permit.
(3) The division or district engineer
will restore authorization under the
NWPs at any time he determines that
his reason for asserting discretionary
authority has been satisfied by a
condition, project modification, or new
information.
(4) When the Chief of Engineers
modifies or reissues an NWP, division
engineers must use the procedures of
§ 3305 to reassert discretionary
authority to reinstate regional
conditions or revocation of NWP
authorizations for specific geographic
areas, class of activities, or class of
waters. Division engineers will update
existing documentation for each NWP
Upon modification or reissuance of
NWPs, previous activity-specific
conditions or revocations of NWP
authorization will remain in effect
unless the DE specifically removes the
activity-specific conditions or
revocations.
(f) En dangered species. No activity is
authorized by any NWP if that aLtivity
is likely to jeopardize the continued
existence of a threatened or endangered
species as listed or proposed for listing
under the Federal Endangered Species
Act (ESA), or to destroy or adversely
modify the critical habitat of such
species.
(1) Federal agencies should follow
their own procedures for complying with
the requirements of the ESA.
(2) Non-federal perinittees shall notify
the DE if any Federally listed (or
proposed for listing) endangered or
threatened specie. or critical habitat
might be affected or is in the vicinity of
the project In such cases, the
prospective permittee will not begin
work under authority of the NWP until
notified by the district engineer that the
requirements of the Endangered Species
Act have been satisfied and that the
activity is authorized. If the DE
determines that th. activity may affect
any Federally listed species or critical
habitat, the DE must Initiate section 7
consultation in accordance with the
ESA. In such cases, the DE may
(i) Initiate section 7 consultation and
then, upon completion, authorize the
activity under the NWP by adding, If
appropriate, activity-specific conditions;
or
(ii) Prior to or concurrent with section
7 consultation. assert discretionary
authority (see 33 CFR 330.4(e)) and
require an individual permit (see 33 CFR
330 5(d)).
(3) Prospective permittees are
encouraged to obtain information on the
location of threatened or endangered
species and their critical habitats from
the U S. Fish and Wildlife Service,
Endangered Species Office, and the
National Marine Fisheries Service
(g) H;storic properties No activity
which may affect properties listed or
properties eligible for listing in the
National Register of Historic Places, is
authorized until the DE has complied
with the provisions of 33 CFR part 325,
appendix C.
(1) Federal permittees should follow
their own procedures for compliance
with the requirements of the National
Historic Preservation Act and other
Federal historic preservation laws.
(2) Non-federal permittees will notify
the DE if the activity may affect historic
properties which the National Park
Service has listed, deterrmned eligible
for listing, or which the prospective
p rmittee has reason to belie .e may be
eligible for listing, on the National
Register of Historic Places in such
cases, the prospective permittee will not
iegin the proposed activity until notified
by the DE that the requirements of the
National Historic Preservation Act have
been satisfied and that the activity is
authorized If a property in the permit
area of the activity is determined to be
an historic property in accordance with
33 CFR part 325, appendix C. the DE will
take into account the effects on such
properties in accordance with 33 CFR
part 325, appendix C. in such cases, the
district engineer may:
(i) After complying with the
requirements of 33 CFR part 325,
appendix C, authorize the activity under
the NWP by adding, if appropriate,
activity-specific conditions; or
(ii) Prior to or concurrent with
complying with the requirements of 33
CFR part 325. appendIx C. he may assert
discretionary authority (see 33 CFR
330.4(e)) and Instruct the prospective
permittee of procedures to seek
authorizatIon under a regional general
permit or an individual permit (See 33
CFR 330.5(d).)
(3) The permittee shall immediately
notify the DE if. before or during
prosecution of the work authorized, he
encounters an historic property that has
not been listed or determined eligible for
listing on the National Register, but
which the prospective permittee has
reason to believe may be eligible for
listing on the National Register.
(4) ProspectIve permittees are
encouraged to obtain Information on the
location of historic properties from the
State Historic Preservation Officer and
the National Register of Historic Places
§ 330.5 IssuIng, modifying, suspending, Of
revoking nationwide permits and
authorizations.
(a) General This section sets forth the
procedures for issuing and reissuing
NWPs and for modifying. suspending. or
revoking NWPs and authorizations
under NWPs
(b) Chief of Engineers (1) Anyone
may, at any time, suggest to the Chief of
Engineers, (ATTN CECW—OR). any new
NWPs or conditions for issuance, or
changes to existing NWPs, which he
believes to be appropriate for
consideration. From time-to-time new
NWPs and revocations of or
modifications to existing NWPs will be
evaluated by the Chief of Engineers
following the procedures specified in
this section. Within five years of
issuance of the NWPs. the Chief of
Engineers will review the NWPs and
propose modification, revocation, or
reissuance
(2) Public notce (i) Upon proposed
issuance of new NWPs or modification.
suspension. revocation, or reissuance of
existing NWPs. the Chief of Engineers
will publish a document seeking public
comments, including the opportunity to
request a public hearing. This document
will also state that the information
supporting the Corps’ provisional
determination that proposed activities
comply with the requirements for
issuance under general permit authority
is available at the Office of the Chief of
Engineers and at all district offices. The
Chief of Engineers will prepare this
information which will be
supplemented, if appropriate, by
division engineers.
(ii) Concurrent with the Chief of
Engineers’ notification of proposed.
modified, reissued, or revoked NWPs.
DEs will notify the known interested
public by a notice issued at the district
leveL The notice will include proposed
regional conditions or proposed
revocation. of NWP authorizations for
specific geographic areas, classes of
activities, or classes of waters, if any.
developed by the division engineer.
(3) Documentation. The Chief of
Engineers will prepare appropriate
NEPA documents and, If applicable.
section 404(b)(1) Guidelines compliance
analyses for proposed NWPs.
Documentation for existing NWPs will
be modified to reflect any changes in
these permits and to reflect the Chief of
Engineers’ evaluation of the use of the
permit since the last issuance. Copies of
all comments received on the document
will be included in the administrative
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Federal Register / Vol. 56, No. 228 I Friday, November 22. 1991 I Rules and Regulations 59139
record. The Chief of Engineers will
consider these comments in making his
decision on the NWPs, and will prepare
a statement of findings outlining his
views regarding each NWP and
discussing how substantive comments
were considered. The Chief of Engineers
will also determine the need to hold a
public hearing for the proposed N’sNPs.
(4) Effective dates. The Chief of
Engineers will advise the public of the
effective date of any Issuance,
modification, or revocation of an NWP.
(c) Division Engineer. (1) A division
engineer may use his discretionary
authority to modify, suspend, or revoke
NWP authorizations for any specific
geographic area, class of activities, or
class of waters within his division,
including on a statewide basis, by
Issuing a public notice or notifying the
individuals involved. The notice will
8tate his concerns regarding the
environment or the other relevant
factors of the public interest. Before
using his discretionary authority to
modify or revoke such NWP
authorizations, division engineers will:
(i) Give an opportunity for interested
parties to express their views on the
proposed action (the DE will publish
and cuculate a notice to the known
interested public to solicit comments
and provide the opportunity to request a
public hearing);
(ii) Consider fully the views of
affected parties;
(iii) Prepare supplemental
documentation for any modifications or
revocations that may result through
assertion of discretionary authority.
Such documentation will include
comments received on the district public
notices and a statement of findings
showing how substantive comments
were considered;
(iv) Provide, if appropriate, a
grandfathering period as specified in
330.6(b) for those who have
commenced work or are under contract
to commence in reliance on the NWP
authorization and
(v) Notify affected parties of the
modification. suspension. or revocation.
including the effective date (the DE will -
publish and circulate a notice to the
known interested public and to anyone
who commented on the proposed
action).
(2) The modification, suspension, or
revocation of authorizations under an
NWP by the division engineer will
become effective by issuance of public
notice or a notification to the individuals
involved.
(3) A copy of all regional conditions
imposed by division engineers on
activities authorized by NWPs will be
forwarded to the Office of the Chief of
Engineers, ATFN: CECW-OR.
(d) District Engineer. (1) When
deciding whether to exercise his
discretionary authority to modify,
suspend, or revoke a case specific
activity’s authorization under an NWP,
the DE should consider to the extent
relevant and appropriate: Changes in
circumstances relating to the authorized
activity since the NWP itself was issued
or since the DE confirmed authorization
under the NWP by written verification;
the continuing need for, or adequacy of.
the specific conditions of the
authorization any significant objections
to the authorization not previously
considered, progress. inspections of
individual activities occurring under an
NWP cumulative adverse
environmental effects resulting from
activities occurring under the NViIP the
extent of the permittee’s compliance
with the terms and conditions of the
NWPs; revisions to applicable statutory
or regulatory authorities; and, the extent
to which asserting discretionary
authority would adversely affect plans,
investments, and actions the permittee
has made or taken In reliance on the
permit and, other concerns for the
environment, Including the aquatic
environment under the section 404(b)(1)
Guidelines, and other relevant factors of
the public Interest.
(2) Prvcedures. (I) When considering
whether to modify or revoke a specific
authorization under an NWP, whenever
practicable, the DE will initially hold
Informal consultations with the
permittee to determine whether special
conditions to modify the authorization
would be mutually agreeable or to allow
the permittee to furnish information
which satisfies the DE’s concerns, If a
mutual agreement Is reached, the DE
will give the permittee written
verification of the authorization,
including the special conditions. If the
permittee furnishes information which
satisfies the DE’s concerns, the
permittee may proceed. If appropriate.
the DE may suspend the NWP
authorization while holding informal
consultations with the permittee.
(Ii) If the DE’s concerns remain after
the informal consultation, the DE may
suspend a specific authorization under
an NVITP by notifying the permittee in
writing by the most expeditious means
available that the authorization has
been suspended, stating the reasons for
the suspension, and ordering the
permittee to stop any activities being
done in reliance upon the authorization
under the NWP. The permittee will be
advised that a decision will be made
either to reinstate or revoke the
authorization under the NVITP or, if
appropriate, that the authorizati — ”der
the NWP may be modified by TE
agreement. The permittee will a
advised that within 10 days of r vq i of
the notice of suspension, he may request
a meeting with the DE, or his designated
representative, to present Information ir
this matter. After completion of the
meeting (or within a reasonable period
of time after suspending the
authorization If no meeting is
requested), the DE will take action to
reinstate, modify, or revoke the
authorization.
(iii) Following completion of the
suspension procedures. If the DE
determines that sufficient concerns for
the environment, including the aquatic
environment under the section 404(b)(1)
Guidelines, or other relevant factors of
the public interest so require, he will
revoke authorization under the NWP.
The DE will provide the permittee a
written final decision and instruct him
on the procedures to seek authorization
under a regional general permit or an
individual permit.
(3) The DE need not Issue a public
notice when asserting discretionary
authority over a specific activity. The
modification, suspension, or revocation
will become effective by notification to
the prospective perinittee.
* 330.6 AuthorIzation by natlonw
-t
(a) Nationwide permit verification. (1)
Nationwide permittees may, and in
some cases must, request from a DE
confirmation that an activity complies
with the terms and conditions of an
NWP. DEs should respond as promptly
as practicable to such requests.
(2) If the DE decides that an activity
does not comply with the terms or
conditions of an NWP, he will notify the
person desiring to do the work and
instruct him on the procedures to seek
authorization under a regional general
permit or individual permit
(3) lithe DE decides that an activity
does comply with the terms and
conditions of an NWP, he will notify the
nationwide permittee.
(i) The DE may add conditions on a
case-by-case basis to clarify compliance
with the terms and conditions of an
NWP or to ensure that the activity will
have only minimal individuaLand
cumulative adverse effects on the
environment, and will not be contrary to
the public interest.
(ii) The DE’s response will state that
the verification is valid for a specific
period of time (generally but no r
than two years) unless the NWP
authorization is modified, suspe’..
revoked. The response should also
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inJt 1 Pe • statement that the verification
will remain valid for the specified period
of time, If during that thne period, the
NWP authorization I, reissued without
modification or the activity complies
wftb any subsequent modification of the
NW? authorization. Furthermore, the
response ShOUld Include a ala tenl3nt
that the provisions of f 330.5(b) will
apply. If during that period of time, the
NWP authorization expires, or is
suspended or revoked, or Is modified.
such that the activity would no longer
comply with the terms and conditions of
an NWP. Finally, the response should
include any known expiration date that
would occur during the specified period
of t l ine .A period of time less than two
years may be used if deemed
appropriate.
(lii ) For activities where a state has
denied 401 water quality certification
and/or did not agree with the Corps
consistency determination for an NWP
the DE’. response will state that the
proposed activity meets the terms and
conditions for authorization under the
NVTP with, the exception of a state 401
water quality certification and/or CZM
consistency concurrence. The response
will also indicate the activity is denied
without prejudice and cannot be
authorized until the requirements of
330 4(c)f 3). 330.4(c)(6). 330.4(dJ(3).
and 330.4(d)(6) are satisfied. The
response will also Indicate that work
may only proceed subject to the terms
and conditions of the state 401 water
quality certification and/or CZM
concurrence.
(iv) Once the DR has provided such
verification, he must use the procedures
of 33 CPR 33ft3 in order to modify,
suspend, or revoke the authorization.
(b) &pfrotion of nationwide permits.
The Chief of Engineers will periodically
review NWPs and their conditions and
will decide to either modify, reissue, or
revoke the permits. If an NWP Is not
modified or reissued within five years of
its effective date, it automatically
expires and becomes null and void.
Activities which hav, commenced (Le,
are under construction) or are under
contract to commence hr reliance upon
an NWP wiR remain authorized
provided the activity Is completed
within twelve months of the date of art
NWP’s expiration, modification. or
revocation, unless discretionary
authority has been exercised on a case-
by-case basis to modify, suspend. or
revoke the authorization In accordance
with 33 R 330 4(e) and 33 CFR 330.5
(c) or fd). Activities completed under the
authorizatfon of an NW? which was in
effect at the time the activity was
completed continue to be authorized by
that NWP.
(c) Muftipk use of not ion wide
permits. Two or more different NWPs
can be combined to authorize a ‘single
and. complete pro jecr as defined at 33
CFR 330.2(1 . However, the same NWP
cannot be used more than once for a
single and complete pro ject.
(d) Combining nationwide permits
with in d i viduol permits. Subject to the
following qualifications, portions of a
larger project may proceed under the
authority of the NWPs while the DE
evaluates an Individual permit
application for other portions of the
same project, but only if the portions of
the project qualifying for N’vVP
authorization would have independent
utility and are able to function or meet
their purpose independent of the total
project. When the functloniig or
usefulness of a portion of the total
project qualifying for an NWP is
dependent on the remainder of the
project, such that its constructon and
use would not be fully justified even if
the Corps were to deny the individual
permit, the NWP does not apply and all
portions of the project must be
evaluated as part of the individual
permit process.
(1J When $ portion of a larger project
is authorized to proceed under an NWP,
it is with the understanding that its
construction will In no way prejudice
the decision on the individual permit for
the rest of the project. Furthermore, the
individual permit documentation must
include an analysis of the impacts of the
entire project, Including related
activities authorized by NWP.
(2) NWPa do not apply, even if a
portion of the project is not dependent
on the rest of the project. when any
portion of the project is subject to an
enforcement action by the Corp. or EPA.
(e) After-the-fact authorimtions.
These authorizations often play an
important part In the resolution of
violations.. hr appropriate cases where
the activity compile, with the terms and
condiUonaofanNWP the DR can elect
to use the NWP for resolution of air
after.the-fact permit situation following
a consideration of whether the violation
being resolved was knowing or
intentional and other indications of the
need for a penalty. For example, where
an unauth r1 d fill meets the terms and
conditions of NWP 13. the DR can
consider the apprupriateness of allowing
the residual fill to remain, hr situations
where said fill would normally have
been permitted under NWP 13. A
knowin& intentionaL willful violation
should be the subject of an enforcement
action lending to a penalty, rather than
an after-the-fact authorization. Use of
after-the-fact NWP authorization must
be consistent with the terms of the
Army/EPA Memorandum of Agreement
on Enforcement. Copies are available
from each district engineer.
Appendix A to Past 330—Nationwide
Permits and Conditions
A. Index of the Nationwide Permits and
Conditions
Nationwide Perzivtr
I Aids to Navigation
2. Structures in Artifidal Canals
3. Maintenance
4 Fish and Wildlife Harvesting.
Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
8 Survey Activities
7. Outfall Structures
8. Oil and Gas Structures
9 Structures in Fleeting and Anchorage
Areas
10 Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Backfill and Bedding
13. Bank Stabilization
14 Road Crossing
15 U 5. Coast Guard Approved Bndges
16 Return Water From Upland Cont&nnet
Disposal Areas
17. Hydropower Protects
18. Minor Discharges
19.25 Cubic Yard Dredging
20. Oil Spill Cleanup
21. Surface Mining Activities
22. Removal of Vessels
23 Approved Categorical Exclusions
24. State Administered Section 404 Progrwr a
23. Structural Disdiarge
26. Headwateis and Isolated Waters
Discharges
27. Wetland Restoration Activities
28. Modifications of Riusting Marinas
29 Reserved
30. Reserved
31. Reserved
32. Completed Enforcement Actions
33 Temporary Construction and Access
34. Cranberry Production Actiwdies
35. MaIntenance Dredging of Existing ftisins
36. Boat Ramps
37. Emer icy Watershed Pretectloo
38. Cleanup of Hazardous and Tmdc Waste
39. Reserved
4O Farm BuUding*
Nationwide Permit Cone ’itkies
Genem lConthtk ir i s
1. NavIgation
2. Proper Maintenance
3. ErosIon and Siltation Controls
4. Aquatic Life Movements
5. EquIpment
8. Regional and CaseBy-Case Conmhoas
7. Wild and Scenic Rivers
& TrIbal Rights
9. Water Quality Certification
10. Coastal Zone Managamens
ii S es
12. HIstoric Properties
13, Notification
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Federal Register / Vol.
56,No. 226 I Friday. November 22, 1991 / Rules and Regulations 59141
Section 404 Only Conditions
1. Water Supply Intakes
2. Shellfish Production
3 Suitable Material
4 MitigatIon
LSpawningArrn
6 Obstruction of High Flows
7. Adverse Impacts From Impoundments
8 Waterfowl Breeding Areas
9 Removal of Temporary Fills
B. Nationwide Permits
1. Aids to Navigation. The placement
of aide to navigation and regulatory
markers which are approved by and
installed In accordance with the
requirements of the U.S Coast Guard.
(See 33 CFR part 66, chapter!,
subchapter C). (section 10)
2. Structures in Artificial Canals.
Structures constructed In artificial
canals within principally residential
developments where the connection of
the canal to a navigable water of the
United States has been previously
authorized (see 33 CFR 322.5(g)).
(section 10)
3. Maintenance. The repair.
rehabilitation, or replacement of any
previously authorized, currently
serviceable, structure or fill, or of any
currently serviceable structure or fill
authorized by 33 CFR 330.3. provided
that the structure or fill Is not to be put
to uses differing from those uses
specified or contemplated for it in the
original permit or the most recently
authorized modification. Minor
deviations In the structure’s
configuration or filled area including
those due to changes in materials,
construction techniques, or current
construction codes or safety standards
which are necessary to make repair,
rehabilitation, or replacement are
permitted. provided the environmental
impacts resulting from such repair,
rehabilitation, or replacement are
minimal. Currently serviceable means
useable as Is or with some maintenance,
but not so degraded as to essentially
require reconstruction. This nationwide
permit authorizes the repair,
rehabilitation, or replacement of those
structures destroyed by storms, floods,
fire or other discrete events, provided
the repair, rehabilitation, or replacement
is commenced or under contract to
commence within two years of the date
of their destruction or damage. In cases
of catastrophic events, such as
hurricanes or tornadoes, this two-year
limit may be waived by the District
Engineer. provided the permittee can
demonstrate funding. contract, or other
similar delays. Maintenance dredging
and beach restoration are not
authorized by this nationwide permit.
(8ections 10 and 404)
4. Fish and Wildlife Harvesting.
Enhancement, and Attraction Devices
and Activities. Fish and wildlife
harvesting devices and activities such as
pound nets, crab traps, crab dredging.
eel pots, lobster traps, duck blinds, clam
and oyster digging: and small fish
attraction devices such as open water
fish concentrators (sea kites, etc). This
nationwide permit authorizes shellfish
seeding provided this activity does not
occur In wetlands or vegetated
shallows. This nationwide permit does
not authorize artificial reefs or
Impoundments and semi-impoundments
of waters of the United State. for the
culture or holding of motile species such
as lobster. (sectIon, 10 and 404)
5. Scientific Measurement Devices.
Staff gages, tide gages, water recording
devices, water quality testing and
improvement devices and similar
structures. Small weirs and flumes
constructed primarily to record water
quantity and velocity are also
authorized provided the discharge Is
limited to 25 cubic yards and further for
discharges of 10 to 25 cubic yards
provided the permittee notifie. the
district engineer In accordance with
“Notification” general condition.
(sections 10 and 404)
6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, and plugging of
seismic shot holes and other
exploratory.type bore holes. Drilling and
the discharge of excavated material
from test wells for oil and gas
exploration is not authorized by this
nationwide permit; the plugging of such
wells is authorized. Fill placed for roads,
pads and other similar activities Is not
authorized by this nationwide permit.
The discharge of drilling muds and
cuttings may require a permit under
section 402 of the Clean Water Act.
(sections 10 and 404)
7. Outfall Structures. Activities
related to construction of outfall
structures and associated intake
structures where the effluent from the
outfall is authorized, conditionally
authorized, or specifically exempted, or
are otherwise in compliance with
regulations Issued under the National
Pollutant Discharge Elimination System
program (section 402 of the Clean Water
Act), provided that the nationwide
permittee notifies the district engineer in
accordance with the “Notification”
general condition. (Also see 33 CFR
330.1(e)). Intake structures per se are not
included—only those directly associated
with an outfall structure. (sections 10
and 404)
8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes I-”
Department of the Interior, Mini
Management Service. Such strui
shall not be placed within the limi ts-u i
any designated shipping safety fairway
or traffic separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, district engineers will
consider asserting discretionary
authority In accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
In 33 CFR 322.5(1)). Such structures will
not be placed in established danger
zones or restricted areas as designated
in 33 CFR part 334: nor will such
structures be permitted in EPA or Corps
designated dredged material disposal
areas. (sectIon 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats, and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where such areas
have been established for that purpose
by the US. Coast Guard. (section 10)
10. Mooring Buoys. Non-commerciaL
single-boat, mooring buoys. (section 10)
11. Temporary Recreational
Structures. Temporary buoys. m
small floating docks, and similai’
structures placed for recreational tile
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (section 10)
12. Utility Line Backfill and Bedding.
Discharges of material for backfill or
bedding for utility lines, including outfall
and intake structures, provided there is
no change in preconstruction contours.
A “utility line” is defined as any pipe or
pipeline for the transportation of any
gaseous. liquid, liquefiable. or slurry
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone and telegraph messages. and
radio and television communication.
The term “utility line” does not include
activities which drain a water of the
United States, such as drainage tile,
however, it does apply to pipes
conveying drainage from another area.
Material resulting from trench
excavation may be temporarily sidecast
(up to three months) into waters
United States provided that the
is not placed in such a manner th
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59142 Federal Register / VoL 56. No. 226 / Friday. November 22. 1991 j Rules and Regulations
dispersed by currents or other forces.
The DE may extend the period of
temporary side-casting up to 100 days,
where appropriate. The area of waters
of the United Stale, that is disturbed
must be limited to the minimum
necessary to construct the utility line. In
wetlands, the top 0” to 12” of the trench
should generally be backflhled with
topsoil from the trench. Excess material
must be removed to upland areas
immediately upon completion of
construction. Any exposed slopes and
streambanks must be stabilized
immediately upon completion of the
utility line. The utility line itself will
require a Section 10 permit if in
navigable waters of the United States.
(See 33 CFR part 322). (section 401)
13. Bank Stabilization’. Bank
stabilization activitie, necessary for
erosion prevention provided:
a. No material is placed In excess of
the minimum needed for erosion
protection;
b. The bank stabilization activity is
less than 500 feel In length;
c. The activity will not exceed an
c.verage of one cubic yard per running
foot placed along the bank below the
plane of the ordinary high water mark or
the high tide line:
d. No material I , placed In any special
aquatic site. Including wetlands:
e. No material Is of the type or Is
placed in any location or in any manner
90 as to impair surface water flow into
or out of any wetland area:
f. No material is placed In a manner
that will be eroded by normal or
expected high flows (properly anchored
trees and treetops may be used in low
energy areas) and.
g. The activity is part of a single and
complete project
Bank stabilization activities in excess of
500 feet in length or greater than an
average of one cubic yard per running
foot may be authorized If the permnittee
notifies the district engineer In
accordance with the “Notification”
general condition and the district
engineer determines the activity
complies with the other terms and
conditions of the nationwide permit and
the adverse environmental Impacts are
m nlmal both Individually and
cumulatively. (sections 10 and 40*)
14. Rood Crossing. FIlls for roads
crossing waters of the Unf ted States
(including wetlands and other special
aquatic sites) provided:
a. The width of the fill Is limited to the
minimum necessary for the actual
crossing
b. The fill placed In waters of the
United States is limited to a filled area
of no more than !, acre Furthermore, no
more than a total of 200 linear feet of the
fill for the roadway can occur In special
aquatic sites, including wetlands;
c. The crossing Is culverted. bridged or
otherwise designed to prevent the
restriction of. and to withstand.
expected high flows and tidal flows, and
to prevent the restriction of low flows
and the movement of aquatic organisms:
d. The crossing, including all
attendant features, both temporary and
permanent, is part ofa single and
complete project for crossing of a water
of the United States; and,
e. For fills in special aquatic sites.
including wetlands, the permittee
notifies the district engineer in
accordance with the “Notification”
general condition. The notification must
also include a delineation of affected
special aquatic sites, including
wetlands.
Some road fills may be eligible for an
exemption from the need for a Section
404 permit altogether (see 33 CFR 323.4).
Also, where local circumstances
indicate the need, district engineers will
define the term “expected high flows”
for the purpose of establishing
applicability of this nationwide permit.
(sections 10 and 404)
15. LLS Coast GuardApproved
Bridges. Discharges of dredged or fill
material incidental to the construction of
bridges across navigable waters of the
United States, including cofferdams.
abutments, foundation seals, piers, and
temporary construction and access fills
provided such discharges have been
authorized by the U.S Coast Guard as
part of the bridge permit. Causeways
and approach fills are not included in
this nationwide permit and will reqwre
an individual or regional sectIon 404
permit (section 404)
16. Return Water From Up/and
Contained Disposal Areas. Return water
from an upland, contained dredged
material disposal area. The dredging
Itself requires a section 10 permit if
located in navigable waters of the
United States. The return water from a
contained disposal area is
administratively defined as a discharge
of dredged material by 33 CFR 323.2(d)
even though the disposal itself occurs on
the upland and thus doe, not require a
sectIon 404 permit. This nationwide
permit satisfies the technical
requirement for a section 404 permIt for
the return water where the quality of the
return water is controlled by the state
through the sectIon 401 certification
procedures. (sectIon 404)
17. Hydropower Projects. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project
which includes the fill, Is licensed by the
Federal Energy Regulatory Commission
(FERC) under the Federal Power Act of
1920, as amended; and has a total
generating capacity of not more than
5000 KW; and the permittee notifies the
district engineer In accordance with the
‘Notification” general condition; or (b)
hydropower projects for which the FERC
has granted an exemption from licensing
pursuant to section 408 of’ the Energy
Security Act of 1980(16 U S.C. 2705 and
2708) and section 30 of the Federal
Power Act, as amended: provided the
permittee notifies the district engineer in
accordance with the “Notification”
general condition. (sectIon 404)
18. Minor Dischorges. Minor
discharges of dredged or fill material
into all waters of the United States
provided:
a. The discharge does not exceed 25
cubic yards;
b. The discharge will net cause the
loss of more than Vio acre of a special
aquatic site, including wetlands. For the
purposes of this nationwide permit, the
acreage limitation includes the filled
area plus special aquatic sites that are
adversely affected by flooding and
special aquatic sites that are drained so
that they would no longer be a water of
the United States as a result of the
project
c. If the discharge exceeds 10 cubic
yards or the discharge is in a special
aquatic site, Including wetlands, the
permittee notifies the district engineer in
accordance with the “Notification”
general condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, Including wetlands. (Also
see 33 CFR 330.1(e)): and
d. The discharge. including alt
attendant features, both temporary and
permanent. Is part of a single and
complete project and 1, not placed for
the purpose of stream diversion.
(sections 10 and 404)
19. Minor Dredging Dredging of no
more than 25 cubIc yards below the
plane of the ordinary high water mark or
the mean high water mark from
navigable waters of the United States as
part of a single and complete project.
This nationwide permit does not
authorize the dredging or degradation
through siltation of cotal reefs,
submerged aquatic vegetation.
anadromous fish spawning areas, or
wetlands or. the connection of canals or
other artificial waterways to navigable
waters of the United States (see 33 CFR
322.5(g)). (section 10)
20. Oil Spill CleonujL Activities
required for the contaInment and
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Federal Register / Vol. 56. No. 226 / Friday , November 22, 1991 1 Rules and Regulations
59143
cleanup of oil and hazardous substances
which are subject to the National Oil
and liazardoes Substances Pollution
Contingency Plan. (40 CFR part 300).
provided that the work is done in
accordance with the Spill Control and
Countermeasore Plan required by 40
CFR 112.3 and any existing State
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(sections 20 and 404)
21. Swf ace Coal Mining Activities.
Activities assoclated with surface coal
mining activities provided they are
authorized by the Department of the
Interior, Office of Surface Iblining. or by
states with approved programs under
Title V of the Surface Mining Control
and Redanis tion Act of 1977 and
provided the permittee notifies the
district engineer In accordance with the
“Notification” general condition. For
discharges in special aquatic sites,
including wetl inri the notification must
also include a delineation of affected
special aquatic sites, including
wetlands. (Also see 33 CFR 330.1(e))
(sections 10 and 404)
22. Removal of Vessels. Temporary
structures or minor discharges of
dredged or fIfl material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
made obstructions to navigation. This
nationwide permit does not authorize
the removal of vessels listed or
determined eligible for listing on the
National Register of Historic Places
unless the district engineer is notified
and indicates that there is compliance
with the “Historic Properties” general
condition. This nationwide permit does
not authorize maintenRnrs . dredeing,
shoal removaL OT liver bank snagging
Vessel disposal In waters of the United
States may need a permit from EPA (see
40 CFR 229.3). (sections 10 and 404)
23.AppivvedCcS orica! Exclusions
Activities undertaken, assisted,
authorized, regulated, funded, or
financed. in whole or In part by another
Federal agency or department where
that agency or department has
determined, pursuant to the Council on
Environmental Quality Regulation for
Implementing the Procedural Provisions
of the National Environmental Policy
Act (40 CFR part 1500 et seq.), that the
activity, work, or discharge is
categorically excluded from
environmental documentation because it
is included within a category of actions
which neither individually nor
cumulatively have a significant effect on
the human emrironinent, and the Office
of the Chief of Engineers (AT’rN:
CECW—OR) has been furnished notice of
the agency’s or department’s application
for the categorical exclusion and
concurs with that determination. Prior Ic
approval for purposes of this nationwide
permit of any agency’s categorical
exclusions, the Chief of Engineers will
solicit public comment. In addressing
these comments, the Chief of Engineers
may require certain conditions for
authorization of an agency’s categorical
exclusions under this nationwide permit.
(sections 10 and 404)
24 StateAdminislered Section 404
Program. Any activity permitted by a
state administering Its own section 404
permit program pursuant 1033 U.S.C.
1344(g)—(l) is permitted pursuant to
section 10 of the Rivers and Harbors Act
of 1899. Those activities which do not
involve a section 404 state permit are
not included in this nationwide permit,
but certain structures will be exempted
by section 154 of Public Law 94—587, 90
Stat. 2917 (33 U.S.C. 591) (see 33 CFR
32 3(a)(2 )J. (section 10)
25 Structural Discharge. Discharges
of material such as concrete, sand, rock,
etc. into tightly sealed forms or cells
where the material will be used as a
structural member for standard pile
supported structures, such as piers and
dockr, and for linear projects, such as
bridges, transmission line footings, and
walkways. The NWP does not authorize
filled structural members that would
support buildings, homes, parking areas,
storage areas and other such structures
Housepads or other building pads are,
also not Included In this nationwide
permit The structure Itself may require
a section 10 permit If located in
navigable waters of the United States
(section 404)
26 Headwateru and Isolated Waters
Discharges. Discharges of dredged or fill
material into headwaters and isolated
waters provided:
a. The discharge does not cause the
loss of more than 10 acres of waters of
the United States;
b. The permittee notifies the district
engineer If the discharge would cause
the loss of waters of the United States
greater than one acre in accordance
with the “Notification” general
condition For discharges In special
aquatic sites, including wetlands, the
notification must also include a
delineation of affected special aquatic
sites, including wetlands. (Also see 33
CFR 330.1(e)), and
c The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project.
For the purposes of this nationwide
permit, the acreage of loss of waters of
the United States includes the filled ared
plus waters of the United State- re
adversely affected by flooding.
excavation or drainage as a resi — ‘ule
project The ten-acre and one-acre limits
of NWP 28 are absolute, and r nnnt be
increased by any mitigation plan offered
by the applicant or required by the DE
Sulxijv,s ions: For any real estate
subdivision created or subdivuled after
October 5. 1984, a notification pursuant
to subsection b. of this nationwide
permit is required for any discharge
which would cause the aggregate total
loss of waters of The United States for
the entire subdivision to exceed one (1)
acre. Any discharge in any real estate
subdivision which would cause the
aggregate total lass of waters of the
United States in the subdivision to
exceed ten (20) acres is not authorized
by this nationwide permit, unless the DE
exempts a particular subdivision or
parcel by n aking a written
deter,ninatlon that (1) The indivsdual
and cumulative adverse environmental
effects would be minimal and the
property owner had, after October 5.
1984, but prior to January21, 1992,
committed substantial resources in
reliance on NWP26withregard to a
subdivision, in circwnstances where it
would be Inequitable to frustra ” i”
investment-hacked expectatior
that the individual and cumula
adverse environmental effects
minimal, high quality wetlands would
not be adversely affected, and there
would be an overaU benefit to the
aquatic environment. Once the
exemption Is established for a
subdivision, subsequent lot development
by individual property owners may
proceed using NWP 26. For purposes of
NWP 26, the term “real estate
subdivision” shall be interpreted to
include circumstances where a
landowner or developer divides a tract
of land Into smaller parcels for the
purpose of selling, conveying,
transferring, leasing, or developing said
parcels. This would include the entire
area of a residential, commercial or
other real estate subdivision. Including
all parcels and parts thereof. (section
404)
27. Wetland andftiparian Restoratio
and Creation Activities. Activities in
waters of the United States associated
with the restoration of altered and
degraded non-tidal wetlands and
creation of wetlands on private lands ir
accordance with the terms and
conditions of a binding wetland
restoration or creation agreement
between the landowner and the
Fish and Wildlife Service (1.ISFI
the Soil Conservation Service SCS] or
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59144 Federal Register / Vol. 56. No. 226 / Friday. November 22. 1991 / Rules and Regulations
activities associated with the restoration
of altered and degraded non-tidal
wetlands. riparian areas and creation of
wetlands and riparian areas on U S.
Forest Service and Bureau of Land
Management lands. Federal surplus
lands (e g. military lands proposed for
disposal). Farmers Home Administration
inventory properties, and Resolution
Trust Corporation inventory properties
that are under Federal control prior to
being transferred to the private sector
Such activities include, but are not
limited to: Installation and maintenance
of small water control structures, dikes.
and berrns; backfilling of existing
drainage ditches; removal of existing
drainage structures; construction of
small nesting islands; and other related
activities. This nationwide permit
applies to restoration projects that serve
the purpose of restoring “natural”
wetland hydrology, vegetation, and
function to altered and degraded non-
tidal wetlands and “natural” functions
of riparlan areas. For agreement
restoration and creation projects only.
this nationwide permit also authorizes
any future discharge of dredged or fill
material associated with the reversion
of the area to its prior condition and use
(i.e.. prior to restoration under the
agreement) within five years after
expiration of the limited term wetland
restoration or creation agreement. even
if the discharge occurs after this
nationwide permit expires. The prior
condition will be documented in the
original agreement, and the
determination of return to prior
conditions will be made by the Federal
agency executing the agreement. Once
an area is reverted back to its prior
physical condition. It will be subject to
whatever the Corp. regulatory
requirements will be at that future date
This nationwide permit does not
authorize the conversion of natural
wetlands to another aquatic use, such as
creation of waterfowl impoundments
where a forested wetland previously
existed. (sections 10 and 404)
28. Modifications of Existing Marinas.
Reconfiguration. of existing docking
facilities within an authorized manna
area. No dredging. additional slips or
dock spaces. or expansion of any kind
within waters of the United States are
authorized by this nationwide permit.
(section 10)
29. Reserved
30. Reserved
31. Reserved
32. Completed Enforcement Actions.
Any structure, work or discharge of
dredged or fill material undertaken in
accordance with, or remaining in place
in compliance with, the terms of a final
Federal court decision, consent decree.
or settlement agreement in an
enforcement action brought by the
United States under section 404 of the
Clean Water Act and/or section 10 of
the Rivers and Harbors Act of 1899.
(sections 10 and 404)
33. Temporary Construction, Access
and Dewatenng Temporary structures
and discharges. including cofferdams,
necessary for construction activities or
access fills or dewatering of
construction sites, provided the
associated permanent activity was
previously authorized by the Corps of
Engineers or the U S. Coast C uard, or for
bridge construction activities not subject
to Federal regulation. Appropriate
measures must be taken to maintain
near normal downstream flows and to
minimize flooding. Fill must be of
materials and placed in a manner that
will not be eroded by expected high
flows. Temporary fill must be entirely
removed to upland areas following
completion of the construction activity
and the affected areas restored to the
pre-project conditions. Cofferdams
cannot be used to dewater wetlands or
other aquatic areas so as to change their
use. Structures left in place after
cofferdams are removed require a
section 10 permit if located in navigable
waters of the United States. (See 33 CFR
part 322). The permittee must notify the
district engineer in accordance with the
“Notification” general condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize impacts to
aquatic resources. The district engineer
will add special conditions, where
necessary, to ensure that adverse
environmental impacts are minimal.
Such conditions may include: limiting
the temporary work to the minimum
necessary: requiring seasonal
restrictions; modifying the restoration
plan and requiring alternative
construction methods (e.g. construction
mats In wetlands where practicable).
This nationwide permit does not
authohze temporary structures or fill
associated with mining activities or the
construction of marina basins which
have not been authorized by the Corps.
(section. 10 and 404)
34. Cranberry Production Activities:
Discharges of dredged or fill material for
dikes, berm, pumps, water control
structures or leveling of cranberry beds
associated with expansion.
enhancement, or modification activities
at existing cranberry production
operations provided:
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but not limited to.
filling. flooding, ditching, or clearing.
does not exceed 10 acres of waters of
the United States, including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
notification procedures, and
c The activity does not result in a net
loss of wetland acreage.
This nationwide permit does not
authorize any discharge of dredged or
fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
nationwide permit, the cumulative total
of 10 acres will be measured over the
period that this nationwide permit is
valid. (section 404)
35. Maintenance Dredging of Existing
Basins. Excavation and removal of
accumulated sediment for maintenance
of existing marina basins, canals, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress whichever is less provided the
dredged material is disposed of at an
upland site and proper siltation controls
are used. (section 10)
38. Boat Ramps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
United States does not exceed 50 cubic
yards of concrete, rock. crushed stone or
gravel into forms, or placement of pre-
cast concrete planks or slabs.
(Unsuitable material that causes
unacceptable chemical pollution or is
structurally unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other swtable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland: and
e. No matenal is placed In special
aquatic sites, including wetlands.
Dredging to provide access to the boat
ramp may be authorized by another
NWP. regional general permit or
individual permit pursuant to section 10
if located in navigable waters of the
United States. (sectIons 10 and 404)
37. Emergency Watershed Protection
and Rehabi1itation Work done by or
funded by the Soil Conservation Service
qualifying as an ‘exigency” situation
(requiring immediate action) under its
Emergency Watershed Protection
Program (7 CFR part 624) and work done
or funded by the Forest Service under its
Burned-Area Emergency Rehabilitation
Handbook (FSH 509.13) provided the
district engineer is notified in
accordance with the notification general
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Federal Register I Vol. 56. No. 2281 Friday, November 2Z 1991 I Rules and Regulations 5914i
condition, Also see 33 CFR 330.1(e)).
(sections Wand 404)
38. Ciecaup of Jiaanrdaus and Toxic
Waste. Spth.fl.c activities required to
effect the conthinmpnt , stabilization or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
district engineer in accordance with the
“Notification” general condition. For
discharges in special aquatic sites.
including wetlands, the notification must
also include a delineation of affected
special aquatic sites. Including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this nationwide permit.
This nationwide permit does not
authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. (sections 10
and 404)
39. Reserved
40 Farm Buildings Discharges of
dredged or fill material into
jurisdictional wetlands Ibut not
including prairie potholes, plays lakes,
or vernal pools) that were in agricultural
crop production prior to December 23,
1985 (i e, farmed wetlands) for
foundations and building pads for
buildings or agricultural related
structures necessary for farming
activities. The discharge will be limited
to the minimum necessary but will In no
case exceed 1 acre (see the
“Minimization” section 404 only
condition). (section 404)
C. Nationwide Permit Conditions
General Conthtzons The following
general conditions must be followed in
order for any authorization by a
nationwide permit to be vali±
1 Ncv gaLion. No activity may cause
more than a minimal adverse effect on
navigation.
2 Proper maintenance Any structure
or fill authorized shall be properly
maintained, Including maintenance to
ensure public safety.
3. Erosion and siltoijon controls.
Appropriate erosion and siltation
controls must be used and maintained in
effective operating condition during
construction, and all exposed soil and
other fills must be permanently
stabilized at the earliest practicable
date.
4. Aquatic Life movements. No activity
may substantially disrupt the movement
of those species of aquatic life
Indigenous to the waterbody. including
those species which normally migrate
through the area, unless the activity’s
primary purpose is to impound water.
5. Equipment Heavy equipment
working in wetlands must be placed on
mats or other measures must be taken to
minimize soil disturbance.
6. Regional and case-by-case
conditions. The activity must comply
with any regional conditions which may
have been added by the division
engineer (see 33 CFR 330.4(e)) and any
case specific conditions added by the
Corps.
7. Wild and Scenic Rivers. No activity
may occur in a component of the
National Wild and Scenic River System.
or in a river officially designated by
Congress as a “study river” for possible
Inclusion in the system, while the river
is in an official study status. Information
on Wild and Scenic Rivers may be
obtained from the National Park Service
and the U.S. Forest Service.
8. Tribal rights. No activity or Its
operation may Impair reserved tribal
rights. Including, but not limited to,
reserved water rights and treaty fishing
and hunting iights.
9. Water quality certification. In
certain states, an individual state water
quality certification must be obtained or
waived (see 33 CFR 330.4(c)).
10. Coastal zone management. In
certain states, an Individual state
coastal zone management consistency
concurrence must be obtained or
waived. (see 33 CFR 330.4(d)).
11. Endangeref Species. No activity is
authorized under any NWP which is
likely to jeopardize the continued
existence of a threatened or endangered
species or a species proposed for such
designation, as Identified under the
Federal Endangered Species Act, or
which is likely to destroy or adversely
modify the cntical habitat of such
species. Non-federal permittees shall
notify the district engineer if any listed
species or critical habitat might be
affected or is in the vicinity of the
project and shall not begin work on the
activity until notified by the district
engineer that the requirements of the
Endangered Species Act have been
satisfied and that the activity is
authorized. Information on the location
of threatened and endangered species
and their critical habitat can be
obtained from the U.S. Fish and Wildlife
Service and National Marine Fisheries
Service. (see 33 CFR 330.4(f))
12. Historic properties. No activity
which may affect Historic properties
listed, or eligible for listing, in the
National Register of Historic Places is
authorized, until the DE has complied
with the provisions of 33 CFR 325.
appendix C. The prospective pemmittee
must notify the district engineer if the
authorized activity may affect any
historic properties listed, determined to
be eligible, or which the prsp- ”
permittee has reason to belle: be
eligibleforlistingontheNat i I
Register of Historic Places, ani. no
begin the activity until notified by the
District Engineer that the requirements
of the National Historic Preservation
Act have been satisfied and that the
activity Is authorized. Information on
the location and existence of historic
resources can ‘be obtained from the
State Historic Preservation Office and
the National Register of Historic Places
(see 33 CFR 330.4(g)).
13. Notification. (a) Where required
by the terms of the NWP. the
prospective permlttee must notify the
District Engineer as early as possible
and shall not begin the activlt)r
(1) Until notified by the District
Engineer that the activity may proceed
under the NWP with any special
conditions Imposed by the district or
division engineer, or
(2) if notified by the District or
Division engineer that an Individual
permit is required; or
(3) Unless 30 days have passed from
the District Rnglneez’s receipt of the
notification and the prospective
permiUee has not received notice from
the District or Division Engineer.
Subsequently, the permittee’s r -
proceed under the NWP may
modified, suspended, or revok - in
accordance with the procedure set forth
in 33 CFR 330.5(d)(2).
(b) The notification must be in writing
and include the following information
and any required fees:
(1) Name, address and telephone
number of the prospective peimittee;
(2) Location of the proposed project;
(3) Brief description of the proposed
project the project’s purpose direct and
indirect adverse environmental effects
the project would cause any other
NWP(s), regional general permit(s) or
individual permit(s) used or intended to
be used to authorize any part of the
proposed project or any related activity;
(4) Where required by the terms of the
NWP, a delineation of affected special
aquatic sites. including wetlands; and
(5) A statement that the prospective
permittee has contacted:
(i) The USFWS/NMFS regarding the
presence of any Federally listed (or
proposed for listing) endangered or
threatened species or critical habitat in
the permit area that may be affected by
the proposed project and any available
information provided by those agencies.
(The prospective permitlee mav t
Corps District Offices for USF
NMFS gent y contacts and lisu
critical habitat.)
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59146 Federal Register I Vol. 56, No. 226 / Friday, November 22, 1991 I Rules and Regulations
(ii) The SHPO regarding the presence
of any historic properties in the permit
area that may be affected by the
proposed project; and the available
information, if any, provided by that
agency.
(c) The standard individual permit
application form (Form ENG 4345) may
be used as the notification but must
clearly indicate that it is a PDN and
must include all of the information
required in (b) (1}—(5) of General
Condition 13.
(d) In reviewing an activity under the
notification procedure, the District
Engineer will first determine whether
the activity will result in more than
minimal individual or cumulative
adverse environmental effects or will be
contrary to the public interest. The
prospective permittee may, at his option.
submit a proposed mitigation plan with
the predischarge notification to expedite
the process and the District Engineer
will consider any optional mitigation the
applicant has included in the proposal n
determining whether the net atherse
environmental effects of the proposed
work are minimal. The District Engineer
will consider any comments from
Federal and State agencies concerning
the proposed activity’s compltance with
the terms and conditions of the
nationwide permits and the need for
mitigation to reduce the project’s
adverse environmental effects to a
minimal level. The district engineer will
upon receipt of a notification provide
immediately (e.g. facsimile transmission.
o%ernmght mail or other expeditious
manner) a copy to the appropriate
offices of the Fish and Wildlife Service,
State natural resource or water quality
agency, EPA, and, if appropriate, the
National Marine Fisheries Service. With
the exception of NWP 37, these age nues
will then have 5 calendar days from the
date the material is transmitted to
telephone the District Engineer if they
intend to provide substantive, site-
specific comments. If so contacted by an
agency, the District Engineer will wait
an additional 10 calendar days before
making a decision on the notification.
The District Engineer will fully consider
agency comments received within the
specified time frame, but will provide no
response to the resource agency. The
District Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies’ concerns were considered.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification. If the District Engineer
determines that the activity complies
with the terms and conditions of the
NWP and that the adverse effects are
minimal, he will notify the permittee and
include any conditions he deems
necessary. If the District Engineer
determines that the adverse effects of
the proposed work are more than
minimal, then he will notify the
applicant either (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an individual permit, or (2) that
the project is authorized under the
nationwide permit subject to the
applicant’s submitting a mitigation
proposal that would reduce the adverse
effects to the minimal level. This
mitigation proposal must be approved
by the District Engineer prior to
commencing work. If the prospective
permittee elects to submit a mitigation
plan, the DE will expeditiously review
the proposed mitigation plan. but will
not commence a second 30-day
notification procedure. If the net adverse
effects of the proiect (with the mitigation
proposal) are determined by the District
Engineer to be minimal, the District
Engineer will provide a timely written
response to the applicant informing him
that the project can proceed under the
terms and conditions of the nationwide
permit.
(e) Wetlands Delineations. Wetland
delineations must be prepared in
accordance with the current method
required by the Corps. The permittee
may ask the Corps to delineate the
special aquatic site. There may be some
delay if the Corps does the delineation.
Furthermore, the 30-day period will not
start until the wetland delineation has
been completed.
(1) Mitigation: Factors that the D strtct
Engineer will consider when
determining the acceptability of
appropriate and practicable mitigation
include, but are not limited to:
(1) To be practicable the mitigation
must be available and capable of being
done considering costs, existing
technology, and logistics in light of
overall project purposes;
(2) To the extent appropriate,
permnittees should consider mitigation
banking and other forms of mitigation
including contributions to wetland trust
funds, which contribute to the
restoration, creation, replacement,
enhancement, or preservation of
wetlands.
Furthermore, examples of mitigation
that may be appropriate and practicable
include but are not limited to reducing
the size of the project establishing
buffer zones to protect aquatic resource
values; and replacing the loss of aquatic
resource values by creating. restoring.
and enhancing similar functions and
values. In addition, mitigation must
address impacts and cannot be used to
offset the acreage of wetland losses that
would occur in order to meet the
acreage limits of some of the nationwide
permits (e g 5 acres of wetlands cannot
be created to change a 6 acre loss of
wetlands to a 1 acre loss, however, the 5
c:eated acres can be used to reduce the
impacts of the 6 acre loss).
Section 4c4 Only Conditions
In addition to the General Conditions,
the following conditions apply only to
activities that involve the discharge of
dredged or fill material and must be
followed in order for authorization by
the nationwide permits to be valid:
1. Water supply intakes. No discharge
of dredged or fill material may occur in
the proximity of a public water supply
intake except where the discharge is for
repair of the public water supply intake
structures or adjacent bank
stabilization
2 Shellfish production No discharge
of dredged or fill material may occur in
areas of concentrated shellfish
production, unless the discharge is
directly related to a shellfish harvesting
activity authorized by nationwide
permit 4.
3. Suitable material. No discharge of
dredged or fill material may consist of
unsuitable material (e.g. trash, debris,
car bodies, etc ) and material discharged
must be free from toxic pollutants in
toxic amounts (see section 307 of the
Clean Water Act).
4. Mitigation. Discharges of dredged
or fill material into waters of the United
States must be minimized or avoided to
the maximum extent practicable at the
project site (i e. on.site), unless the DE
has approved a compensation mitigation
plan for the specific regulated activity.
5. Spawning areas. Discharges in
spawning areas during spawning
seasons must be avoided to the
maximum extent practicable.
6. Obstruction of high flows. To the
maximum extent practicable. discharges
must not permanently restrict or impede
the passage of normal or expected high
flows or cause the relocation of the
water (unless the primary purpose of the
fill is to impound waters).
7. Adverse impacts from
impoundments. If the discharge creates
an impoundment of water, adverse
impacts on the aquatic system caused
by the accelerated passage of water
and/or the restriction of its flow shall be
minimized to the maximum extent
practicable.
8. Waterfowl breeding areas.
Discharges into breeding areas for
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Federal Register / Vol. 56, No. 226 I Friday. November 22. 1991 - I Rules and Regulations 59147 -
migratory waterfowl must be avoided to
the maximum extent practicable.
9. Removal of temporary fills. Any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
IFR Doc. 91-27573 Filed 11-21-01: 8.45 smJ
SIWNO coo 3S1O-.OI-
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41206 Federal Register / Vol. 51,
No. 219 / Thursday. November 13, 1988 / Rules and Regulations
‘IEPARTMENT OF DEFENSE
rps of Engineers, Department of
the Army
33 CFR Parts 320, 321, 322, 323, 324,
325, 326, 327, 328, 329 and 330
Frnal Rule for Regulatory Programs ot
the Corps of EngIneers
AGENCY: Corps of Engineers. Army
Department, DOD.
ACTION: Final rule.
SUMMARY We are hereby issuing final
regulations for the regulatory program of
the Corps of Engineers. These
regulations consolidate earlier final.
interim final, and certain proposed
regulations along with numerous
changes resulting from the considers lion
of the public comments received. The
major changes include modifications
that provide for more efficient and
effective management of the decision-
making processes. clarifications and
modifications of the enforcement
procedures, modifications to the
nationwide permit program. revision of
the permit form, and implementation of
special procedures for artificial reefs as
required by the National Fishing
Enhancement Act of 1084.
EFFECTIVE DA’!t January 12. 1987.
FOR FURTHER iNFORMATION CONTACT
Mr. Sam Collinsort or Mr. Bernie Goode.
HQDA DAEN-CWO-N), Washington.
DC 20314-1000. (202) 272-0199.
SUPPUMENTARY LNFORMATIOPC
Consolidation of Carps Permit
Regulations
These final regulations consolidate
and complete the six following
rulemaking events affecting the Corps
regulatory program:
1. interim Final Regulations. These
regulations contained Parts 320—330 and
were published (47 FR 31794) on July 22.
1982. to incorporate policy and
procedural changes resulting from
legislative, judicial, and administrative
actions that had occurred since the
previous final regulations had been
published in 1977. Because it had been
almost two years since we had proposed
changes to the 1977 regulations. we
published the 1982 regulations as
“intenm final” and asked for public
comments. We received nearly 200
comments.
2. Proposed Regulatory Reform
Regulations. On May 12. 1983. we
published (48 FR 21466) proposed
revisions to the interim final regulations
to implement the May 7. 1982, directives
of the Presidential Task Force on
Regulatory Relief. The Task Force
directed the Army to reduce uncertainty
and delay. give the states more authority
and responsibility reduce conflicting
and overlapping policies, expand the use
of general permits. and redefine and
clarify the scope of the permit program.
Since these regulations proposed
changes to our existing nationwide
permits and the addition of two new
nationwide permits. a public hearing
was held in Washington. DC. on
October 12, 1983. to obtain comments on
these proposed changes. As a result of
the public comments received, nearly
500 in response to the proposed
regulations and 22 at the public hearing.
we have determined that some of the
proposed revisions should be adopted
and some should not We have adopted
some of the provisions that were
designed to clarify policies for
evaluating permit applications, to revise
certain permit processing procedures, to
add additional conditions to existing
nationwide permits, and to modify
certain nationwide permit procedures.
We have not adopted some of the other
proposed changes. including the two
proposed new nationwide permits.
3. Settlement Agreement Final
Regulations. On October 5. 1984, we
published (49 FR 39478) final regulations
to implement a settlement agreement
reached in a suit filed by 16
environmental organizations in
December of 1982 against the
Department of the Army and the
Environmental Protection Agency (NWF
v Marsh) concerning several provisions
of the July 22. 1982, interim final
regulations. The court approved the
settlement agreement on February 10,
1984, and on March 29. 1984, we
pubhshed (49 FR 12660) the
implementing proposed regulations. We
eceived over 150 comments on these
troposed regulations covering a full
range of views. Those comments which
were applicable to the provisiona of the
March 29, 1984. proposals were
considered and addressed in the final
regulations published on October 5,
1984. The remaining comments have
been considered in the development of
the final regulations we are issuing
today.
In the October 5. 1984. final rule there
were several new provisions rel.iting to
the 404(b)(1) guidelines. fri 33 CFR
320 4(a)(1) we clarified the fact that no
404 permit can be issued unless it
complies with the 404(b)(IJ guidelines.
If a proposed action complies with the
guidelines, a permit will be issued
unless the district engineer determines
that it will be contrary to the public
interest In 33 CFR 323 6(a) we stated
that district engineers will deny permits
for discharges which fail to comply with
the 404(b)(1) guidelines. unless the
economic impact on navigation and
anchorage necessitates permit issuance
pursuant to section 403(b)(21 of the
Clean Water Act Although no 404
permit can be issued unless compliance
with the 404(b)(1) guidelines is
demonstrated (i.e., compliance is a
prerequisite to issuance), the 404(b)(1J
evaluation is conducted simultaneously
with the public interest review set forth
in 33 CFR 320.4(a).
4. Proposed Permit Form Regulo!ioas
On May 23. 1985. we published (50 FR
21311) proposed revisions to 33 CFR Part
325 (Appendix A). which contains the
standard permit form used for the
Issuance of Corps permits and the
related provisions concerning special
conditions This proposal provided for
the complete revision of the permit form
and its related provisions to make them
easier for permittees to understand.
General permit conditions were written
In plain English and greatly reduced in
number unnecessary material was
deleted: and material which is
Informational in nature was reformatted
under a ‘FURTHER INFORMATION”
heading. We received 18 comments on
this proposal.
5. Proposed Regulations to Implement
the Notional Fishing Enhancement Act
of 1984 (NFEA). On July 28. 1985. we
publIshed (50 FR 30479) proposed
regulations to implement a portion of the
Corps regulatory responsibilities
pursuant to the NFEA. Specialized
procedures relative to the processing of
Corps permits for artificial reefs were
proposed for inclusion In Parts 322 and
325. Eight organizations commented on
these proposed regulations. The NFEA
also authorizes the Secretary of the
Army to assess a civil penalty on any
person who, after notice and an
opportunity for a hearing. is found to
have violated any provision of a permit
Issued for an artificial reef Procedures
for implementing such civil penalties
will be proposed at a later date. In
addition, we are hereby notifying
potential applicants for artificial reef
permits that the procedures contained In
Part 323 relating to the discharge of
dredged or fill materials and those in
Part 324 relating to the transportation of
dredged material for the purpose of
dumping in ocean waters will be used in
the processing of artificial reef permits
when applicable.
a. Proposed Regulations (Portion of
Port 323 and Al) of Part 326. On March
20, 1988. we published (51 FR 9691) a
proposed change to 33 CFR 323.2(d).
previously 323.2(j). to reflect the Army’s
policy regarding de minimis or
incidental soil movements occurring
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2c?
Federal Register f Vol. 51.
during normal dredging operations and a
proposed. complete revision of the
Corps of Engineers enforcement
procedures (33 CFR Part 326). Seventeen
comment letters were received on these
proposed regulations. These comments
and the resulting changes reflected in
the final regulations for 323 2(d) and
Part 328 are discussed in detail below
Environmental Documentation
We have determined that this action
does not constitute a major Federal
action significantly affecting the quality
of the human environment. Appropriate
environmental documentation has been
prepared for all permit decisions.
Environmental assessment, for each of
the nationwide permits previously
issued or being modified today are
available from the Corps of Engineers.
You may obtain these assessments by
writing to the address hated in this
preamble. Considering the potential
impacts, we have determined that none
required an environmental Impact
statement.
Discussion of Public Comments and
Changes
Port 32D—Ceneml Regulatory P0/16,05
Section 3201(01(6): In order to provide
clarity to the public, we have added a
provision to codify existing practice that
when a district engineer makes certain
determinations under these regulations.
the public can rely on that
determination as a Corps final agency
action.
Section 320.3(o): The National Fishing
Enchancement Act of 1984 has been
added to the list of related laws in
§ 3203.
Section 3204: In the May 12. 1983.
proposed rule and the March 29. 1984.
proposed rule we proposed changes to
§ 320.4(a)(1)—public Interest review.
320 4(b)(5}—effect on wetlands.
320 4(c}—flsh and wildlife. 320.4(g)—
consideration of property ownership.
and 320.4(j)—other Federal. state or
local requirements. Changes to these
paragraph, were adopted in the October
5. 1984, final rule. The various comments
relating to these proposals have been
fully discussed in the October 5. 1984
final rule (49 FR 39478)
Section 320.4(a)(3). Many commenters
objected, some strongly, to the deletion
in the October 5. 1984, final regulations
of the term “great weight” from
* 32 0.4(c). the paragraph concerning the
consideration of opinions expressed by
fish and wildlife agencies Many stated
that fish and wildlife agencies had the
expertise and knowledge to know the
impact of work in wetland therefore,.
their opinions should be given strong , ’
consideration. Some commeriters
supported removal of the “great weight”
statement expecting less value would be
given fish and wildlife agency views It
is not our intention to reduce or discount
the value or expertise of fish and
wildlife agency comments or those of
any other experts in any field.
Comments also varied from support of
to objection to the deletion of the “great
weight” statement from the other policy
statements such as energy and
navigation In § 320.4. Therefore, we
added a new paragraph (a)(3) to clarify
our position on how we consider
comments from the public, including
those from persons or agencies with
special expertise on particular factors in
the public interest review.
Section 320.4(bHI): One commenter
objected to the placement of the word
“some” in this paragraph as a rewrite of
E.O. 11990 which places no qualifier on
“wetlands” Indicating that all wetlands
are vitdl. We have found through
experience in administering the Section
404 permit program that wetlands vary
in value While some are vital areas,
others have very little value; however.
most are Important. We recognize that
“some wetlands are vital . ,“ is being
read by some people as “Some wetlands
are important . .“ This was not our
intent To avoid this confusion we have
revised this paragraph by deleting
“some wetlands are vital areas
and indicating that “moat” wetlands are
important,
Section 320.4(b/(2)(vi,?: We have
included in the list of important
wetlands those wetlands that are
ground water discharge areas that
maintain minimum baseflows important
to aquatic resources. Scientific research
now indicate, that wetlands more often
serve as discharge areas than recharge
— areas, Those discharge area. which are
necessary to maintain a minimum
baseflow necessary for the continued
existence of aquatic plants and animals
are recognized as Important,
Section 320.4(b)(2)fr/j ,).’ We have
included in the list of important
wetlands those which are unique in
nature or scarce in quantity to the region
or local area.
Section 320.4(d): We have revised this
paragraph to clarify that impacts from
both point source and non-point source
pollution are considered In the Corps
public interest review, However, section
208 of the Clean Water Act provides for
control of non-point sources of pollution
by the states.
Section 320 4(j)(1): Clarifying language
has been added to this section to
eliminate confusion regarding denial’
procedures when another Federal, state.
and/or local authorization or
certification has been denied.
Section 3204(p): Some comnienters
felt that environmental considerations
should take precedence over other
factors Other commenters believed that
guidance should be given as to who
determines whether there are
environmental benefits to a project,
Many commenters indicated that the
regulation does not define the possible
range of environmental benefits that will
be considered, Environmental benefits
are determined by the district engineer
and the district staff based on responses
received from the general public, special
interest groups, other government
agencies and stall evaluation of the
proposed activity. Defining the possible
range of environmental benefits would
be almost impossible to cover in the
rules In sufficient detail, since
circumstances vary considerably for
each permit application, After
considering all the comments we have
decided to make the change as proposed
on May 12. 1983.
Section 3 4(q&’ Some commenters
believed that this rule would distort
review a’Iterta by Inserting
inappropriate economic assumptions
and minimizing environmental criteria.
Some commenters suggested that the
Corps revise this paragraph to include a
provision to challenge an applicant’s
economic data and that of governmental
agencies as well. Other commenters
believe that economic factors do not
belong in these regulations since the
Intent of the Clean Water Act Isi “to
restore and maintain the chemical,
physical, and biological Integrity of the
nation’s waters”: therefore, any
regulation under the CWA should have,
as its primary objective, provisions
which give environmental factors the
greatest weight. They were concerned
that this part may be applied to allow
economic benefits to offset negative
environmental effects. Some
commenters, however, believed that the
Corp. should assume that projects
proposed by state and local
governmental Interests and private
industry are economically viable and
are needed in the marketplace. They
also believed that the Corps and other
governmental agencies should not
engage in detailed economic
evaluations, Economics has been
included in the Corps list of public
interest factors since 1970, However,
there has never been a specific policy on
economics in the regulations. The Corps
generally accepts an applicants
determination that a proposed activity is
needed and will be economically viable,
but makes its own decision on whether
No. 219 / Thursday. November 13, 1986 / Rules and Reguations - 41207
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41208 Federal Register / Vol. 51. No. 219 I Thursday, November 13. 1988 / Rules and Regulations
project should occur in waters of the
S. The district engineer may
termine that the impacts of a
,,roposed project on the public interest
may require more than a cursory
evaluation of the need for the project.
The depth of the evaluation would
depend on the significance of the
impacts and in unusual circumstances
could include an independent economic
analysis. The Corps will balance the
economic need for a project along with
other factors of the public interest.
Accordingly, 320.4(q) has been
modified from the proposed rule to
provide that the district engineer may
make an independent review of the need
for a project from the perspective of the
public interest.
Section 320.4(r): Many comments
were offered as to the intent, scope and
implementation of the proposed
mitigation policy. Comments were
almost equally divided between those
who felt that the policy should be
expanded and those that felt it should
be more limited. The issues that were
raised include: mitigation should not be
used to outweigh negative public
interest factors: mitigation should not be
Integrated into the public interest
review: mitigation should be on-site to
the maximum extent practicable; off-site
nitfgation extends the range of concerns
,eyond those required by Section 404. A
wide range of views were expressed on
our proposed mitigation policy, but
virtually all coinmenters expressed need
for a policy. The Corps has been
requiring mitigation as permit conditions
for many years based on our regulations
and the 404(b)(1) guidelines. Because of
the apparent confusion on this matter.
we have decided to clarify our existing
policy at 320 4(r).
The concept of “mitigation” is many-
faceted. as reflected In the defInition
provided in the Council on
(Environmental Quality (CEQJ N A
regulations at 40 CFR 1508 20. Viewing
“mitigation” in its broadest sense.
practically any permit condition or best
management practice designed to avoid
or reduce ad’. erse effects could be
considered “mitigation.” Mitigation
considerations occur throughout the
permit application review process and
are conducted in consultation with state
and Federal agencies responsible for
fish and wildlife resources. District
engineers will normally discuss
modifications to minimize project
impacts with applicants at pre
application meetings (held for large and
potentially controversial projects) and
during the processing of applications. As
a result of these discussions, district
engineers may condition permits to
require minor project modifications,
even though that project may satisfy all
legal requirements and the public
interest review test without those
modifications.
For applications involving Section 404
authority, mitigation considerations are
required as part of the Section 404(b)(1)
guidelines analysis; permit conditions
requinng mitigation must be added
when necessary to ensure that a project
complies with the guidelines. To
emphasize this, we have included a
footnote to 320 4(r) regarding
mitigation requirements for Section 404.
Clean Water Act, permit actions. Some
types of mitigation measures are
enumerated in Subpart H of the
guidelines. Other laws such as the
Endangered Species Act may also lead
to mitigation requirements in order to
ensure that the proposal complies with
the law. In addition to the mitigation
developed in preapplication
consultations and through application of
the 404(b)(1) guidelines and other laws,
these regulations provide for further
mitigation should the public interest
review so Indicate.
One form of mitigation is
“compensatory mitigation.” defined at
40 CFR 1508.20(e) to mean
“compensating for the impact by
replacing or providing substitute
resources or environments.” Federal and
state natural resource agencies
sometimes ask the Corps to require
permit applicants to compensate for
wetlands to be destroyed by permitted
activities. Such compensatory mitigation
might be provided by constructing or
enhancing a wetland. by dedicating
wetland acreage for public use; or by
contributing to the construction,
enhancement, acquisition or
preservation of such “mitigation lands.”
Compensatory mitigation of this type is
often referred to as “off-site” mitigation.
However, it can be provided either on-
site or off-site. Such mitigation can be
required by permit conditions only in
compliance with 33 CFR 325.4. and
specifically with 33 CFR 325.4(a113). In
addition to those restrictions, the Corps
has for many years declined to use, and
does now decline to use, the public
interest review to require permit
applicants to provide compensatory
mitigation unless that mitigation is
required to ensure that an applicant’s
proposed activity is not contrary to the
public interest. ilan applicant refuses to
provide compensatory mitigation which
the district engineer determines to be
necessary to ensure that the proposed
activity Is not contrary to the public
interest, the permit must be denied. If an
applicant voluntarily offers to provide
compensatory mitigation in excess of
the amount needed to find that the
project is not contrary to the public
interest, the district engineer can
incorporate a permit condition to
implement that mitigation at the
applicant’s request.
Part 321—Permits for Dams and Dikes
in Navigable Waters of the United
States
The Secretary of the Army delegated
his authority under Section 9 of the
Rivers and Harbors Act of 1899, 33
U.S C. 401 to the Assistant Secretary of
the Army (Civil Works). The Assistant
Secretary in turn delegated his authority
under Section 9 for structures in
intrastate navigable waters of the
United States to the Chief of Engineers
and his authorized representative.
District engineers have been authorized
in 33 CFR 3258 to issue or deny permits
for dams or dikes in intrastate navigable
waters of the United States” under
Section 9 of the Rivers and Harbors Act
of 1899. This section of the regulation
and § 325 5(d) and 325.8(a) have been
revised to reflect this delegation.
Port 322—Permits for Structures or
Work in or Affecting Navigable Waters
of the United States
Section 322.2(a). We have revised the
term “navigable waters of the United
States” to reference 33 CFR Part 329
since it and all other terms relating to
the geographic scope of the Section 10
program are defined at 33 CFR Part 329.
Section 322.2(b): Commenters on the
definition of atructures indicated that
several terms needed further
amplification. It was suggested that the
term “boom” be defined to exclude a
float boom, as would be used in front of
a spillway. The term was not redefined
- because those dams constructed in
Section 10 waters do require a permit for
a float boom. However, moot dams in
the United States are constructed in
non-Section 10 waters and do not
require a permit for a boom (floating or
otherwise) unless it involves the
discharge of dredged or fill material. It
was suggested that the term “obstacle or
obstruction” be modified to reinstitute
the language from the July 19, 1977, final
regulations. We have adopted the
suggestion which will clarify our intent
that obstacles or obstructions, whether
permanent or not, do require a permit it
will also assist in jurisdictional
decisions on enforcement. It was
suggested that “boat docks” and “boat
ramps” be included in the list of
structures, since these are frequently
proposed structures. These ‘have been
Included. It was suggested that the term
“artificial gravel island” be added, as
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Federal Register / Vol. 51 .
Congress. by Section 4(e) of the Outer
Con tinental Shelf Lands Act of 1953,
extended the regulatory program to the -
Outer Contineutal Shelf, and specifically
cited artificial islands a falling under
Section 10 jurisdiction. This type of
structure is also constructed on state
lands within the territorial seas.
Accordingly, artificial islands have been
included.
Section 32.2.2(c). Two commenters
discussed the definition of “work”: one
stated that it was too broad and the
other that it should be expanded. The
present definition of the term “work”
has remained unchanged for many years
and has achieved general acceptance by
the regulators and those requiring a
permit. The present language has been
retained.
Sections 322_2(f)(2) and 323.2(n)(2):
Both of these sections are concerned
with the definition of general permits.
Several commenters expressed support
for the additional criteria contained in
the May 12. 1983 proposed rule. Other
comxnenters expressed concern that the
proposed criteria were illegal. Some
commenters believed that the proposal
would amount to a delegation of the
Section 404 program to the states, and
that this is not a prerogative of the
Corps of Engineers. Many commenters
expressed serious concern that state
programs were not comprehensive
enough to properly represent the public
interest review. Still others objected to
the proposal because there were no
assurances that the state approved
projects themselves were “similar in
nature” or would have “minimal adverse
environmental effects”: those objections
extended to the proposal to assess the
Impacts of the differences in the State!
Corps decisions. Some commenters
suggested that an automatic “kick-out”
provision, whereby concerned agencies
could cause the Corps to require an
individual application on a case-by-case
basis, may provide sufficient safeguards
for the proposal to go forward. Some
commenters suggested that a preferred
approach to reducing duplication would
be for the Corps to express, in its
regulations, direction for its districts to
Vigorously pursue joint processing..
permit consolidation, pre-application
Consultation, joint applications, joint
public notices and special area
management planning This change was
Proposed in 1983. At that time we
believed that additional flexibility in the
types of general permits which could be
developed was necessary to effectively
administer the regulatory program. Our
experience since then has shown that
the existing definitions of general permit
at both of these sections is flexible
enough to develop satisfactory general -
permits. Therelore we have decided not
to adopt this proposed change. Because
several definitions previously found in
Part 323 have been moved to Part 328,
* 323.2(n) has been redesigna ted
§ 323.2(h).
Section 322.2(g). This section adds the
definition of the term “artificial reefs”
from the National Fishing Enhancement
Act and clarifies what activities or
structures the term does not include.
Two commenters suggested
modifications, or clarifications, to this
definition to ensure that old oil and gas
production platforms can be considered
for use as artificial reefs. We agree with
their suggestion. The definition would
Include the use of some production
platforms, either abandoned In place or
relocated, as artificial reefs as long as
they are evaluated and permitted as
meeting the standards of Section 203 of
the Act.
Section 322.2(h): ThIs section was
proposed to add the definition of the
term “outer continental shelf’ from the
Outer Continental Shell Lands Act
(OCSLA). Two commenters suggested
that the territorial sea off the Gulf Coast
of Florida and Texas is greater than
three nautical miles from the coast line.
We have determined that this is not the
case, and have decided not to include a
definition of the term “outer continental
shelf’ in these regulations and to rely
instead on the definition of this term
that is already in the OCSLA.
Sections 322.3( 0) and 322.4: ActivIties
which do not require a permit have been
moved from § 322.3 and Included in
§ 322.4. The limitation of the
applicability of Section 154 of the Water
Resource Development Act of 1978 in
certain waterbodies has been deleted
because no such limitation exists in that
Act.
S ci,on 322.5(b) This section
addresses the policies and procedures
for processing artificial reef
applications. One commenter suggested
that the opportunity for a general permit
should not be precluded by this section,
A general permit for artificial reefs is
not precluded by this regulation change.
Furthermore, the opportunity for the
issuance of general permits may be
enhanced with the implementation of
the National Artificial Reef Plan by the
Department of Commerce
Section 322.5(b)!!): This section cites
the standards established under section
203 of the National Fishing
Enhancement Act These standards are
to be met in the siting and construction,
and subsequent monitoring and
managing. of artificial reefs. Two
commenters insisted that these should
be called goals or objectives, and
several commenters said that more
specific guidelines or criteria are needed
to evaluate proposed artificial reefs
against the standards orgpals. Section
204 of the Act states that the
Department of Commerce will develop a
National Artificial Reef Plan which will
be consistent with the standards
established under Section 203, and will
include criteria relating to siting,
constructing, monitoring, and managing
artificial reefs. Specification of such
criteria in these rules would be
inappropriate in view of the intent of
Congress to have the Department of
Commerce perform this function, The
National Marine Fisheries Service
(NMFS), acting for the Department of
Commerce, has consulted with us in
developing the National Artificial Ree(
Plan, and we will continue to consult’
with them to ensure permits are issued
consistent with the criteria established
In that plan. The Department of -
Commerce announced the availability of
the National Artificial Reef Plan in the
Federal Register on November 14, 1985.
The U.S. Coast Guard was
particularly concerned that these rules
be more specific with regard to
information and criteria that will be
used to ensure navigation safety and the
preventIon of navigational obstructions.
Section 204 of the National Fishing
Enhancement Act require, that the
Department of Commerce consult the
U.S. Coast Guard in the development of
the National ArtIficial Reef Plan
regarding the criteria to be established
in the plan. One of the standards with
which the criteria must be consistent Is
the prevention of unreasonable
obstructions to navigation. In addition,
the district engineer shall consult with
any governmental agency or Interested
party, as appropriate, in issuing permits
for artificial reefs. This includes pre-
application consultation with the U.S.
Coast Guard, and placing conditions in
permits recommended by the U.S. Coast
Guard to ensure navigational safety.
Section 322.5(b) (2) and(3): These
sections state that the district engineer
will consider the Natlona] Artificial Reef
Plan, and that he will consult with
governmental agencies and interested
parties, as necessary, in evaluating a
permit application. Two commenters
supported this coordination. The NMFS
requested notification of decisions to
issue permits which either deviate from
or comply with the plan. Paragraph
(b)(2) requires the district engineer to
notify the Department of Commerce of
any need to deviate from the plan, In
addition, the NMFS receives a monthly
list of permit applications on which the ‘ -
No, 219 / Thursday, November 13, 1988/ Rules and RegulatIons 41209
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41210 Federal Register / Vol. 51,
No. 219 / Thursday, November 13, 198& f Rules and Regulations
rllatrict engineer has taken final action.
ua should be sufficient notification for
se permits which do not deviate from
plan.
Section 3 5(bX4): Although some
commenters strongly supported this
section describing the liability of
perinittees authorized to build artificial
reefs, several expressed concern that
this provision wee not clearly written or
required 8pecific criteria to assist the
district engineer In determining financial
liability. This paragraph has been
rewritten to correspond closely with the
wording In the National Pishing
Enhancement Ac and examples of
ways an applicant can demonstrate
financial responsibility have been
added.
Section 322.5(g) We have revised this
paragraph on canal. and other artificial
waterways by eliminating procedural-
only provisions which are redundant
with requfremants In 33 R Parts 325
and 328.
Section 5(I Anew section on
fairways and anchorage areas has been
added. This section was formerly found
at 33 CFR 209.135. We are moving this
provision to consolidate all of the permit
regulations on stractines to this part.
We will delete 33 CPR 209.135 by
separate notice In the Federal Register.
Part 323—P w nfta for Discharges of
Dredged ozFiJI Material Into Waters of
the United States
Section Several comnientere
supported moving the definitions
relating to waters of the United States to
a separate paragraph. As proposed on
May 12. 1083. we have moved the term
“waters of the United States” and all
other terms related to the geographic
scope of jwledlctlon of SectIon 404 of
the CWA to 33CFR Part 328 whIch I .
titled “Definition of the Waters of the
United States,” We believe that, by
setting these definitions apart In a
separate and distinct Part of the
regulation and including In that Part eli
of the definitions of terms associated
with the scope of the SectIon 404 permIt
program, we sin better able to clarify
the scope of our Jurisdiction. We have
not changed any existing definitions nor
added any definitions proposed on May
12,1983. Comments related to these
definitions are addressed In Part 328
below.
We have not changed the definition of
fill material at 328.2(e). However, the
Corps has entered Into a Memorandum
of Agreement with the Environmental
Protection Agency to better Identify the
difference between section 402 and
section 404 discharges under the Clean
Water Act
Section 323.2(d)—Previously 3232W:
The proposed modification of this
paragraph states that “de minim,s or
incidental soil movement occurring
during normal dredging operations” is
not a “discharge of dredged material,”
the term defined by this paragraph.
Eight cornznenters raised concerns
relating to this provision. Most of these
supported the regulation of “de minimis
or incidental soil movement occurring
during normal dredging operations” In
varying degrees. Two specifically
expressed a belief that the (aliback from
dredging operations constituted a
discharge within the Intent of section
404 of the Clean Water Act. One of
these stated that the proposed provision
was contrary to a binding decision by
the u. a District Court for the Northern
District of Ohio In Re.,d v. Moral,. No. C-
81-890 (N. D. Ohio. 1984). Mother
commenter objected to the provision on
the basis that It would forte states that
perceived a need to regulate dredging
operations to regulate such activities
under their National Pollutant Discharge
Elimination System authority. The
recommendations of the above group of
comjnenlera Included the regulation of
dredging activities on an Individual or
general permit basis or one selective
basis that would take Into account the
scope. and anticipated effects of the
project. involved. Two commenters
expressed concern over the fact that
discharge activities such as the
sidecasting of dredged material might be
considered “soil movement” that was
“Incidental” to a “normal dredging
operation.” The final concern raised
related to the list of dredging eqwpment
cited as examples. Thi . list was seen,
alternatively, as too limited or as not
limited enough La reference to the types
of equipment that may be used in a
“normal dredging operation.” Four
comxnenters supported the proposed
provision as a reasonable Interpretation
of the section 404 authority of the Corps.
Section 404 clearly directs the Corps
to regulate the discharge of dredged
material, not the dredging LtaelL
Dredging operations cannot be
performed without some failback.
However, if we were to define this
failback as a “discharge of dredged
material,” we would, In effect, be adding
the regulation of dredging to section 404
which we do not believe was the intent
of Congress. We have consistently
provided guidance to our field offices
since 1977 that Incidental faliback is not
an activity regulated under section 404.
The purpose of dredging is to remove
material from the water, not to
discharge material Into the water. -
Therefore, the failback In a “normal
dredging operation” is Incidental to the
dredging operation and cia minimis
when compared to the overall quantities
removed. If there are tests uwolved. we
believe they should relate to the
dredging operator’s Intent and the result
of his dredging operations, lithe intent
is to remove material from the water
and the results support this intent, then
the activity involved must be considered
as a “normal dredging operation” that is
not subject to section 404.
Based on the above discussion, we
have not adopted any of the
recommendations relating to the
revision or deletion of this provision for
the purpose of bringing about the
regulation of “normal dredging
operations” In varying degrees. We have
replaced the “or” between the words
“de,nuunns”and “Incidental” with a
comma to more clearly reflect the fact
that the Incidental failback from a
“normal dredging operation” Is
considered to be de minim s when
compared to the overall quantities
removed. In addition, we have deleted
the examples of dredging equipment at
the end of the proposed provision to
make It clear that de nnnimis or
Incidental soil movement occurring
during any “normal dredging operation”
Is not a “discharge of dredged material.”
However, we wish to also make It clear
that this provision applies only to the
incidental failback occurring during
“normal dredging operations” and not to
the disposal of the dredged material
Involved. U this material La disposed of
in a water of the United States, by
sidecasting or by other means, this
disposal will be considered to be a
“discharge of dredged material” and will
be subject to regulation under section
404.
Section 323.4: We hove mode some
minor corrections to this section to be
consistent with EPA’s permit exemption
regulations at 40 CFR Part 233,
Port 324—Ocean Disposal
Section 324.4(c): The language of this
section on the EPA review process has
been rewritten to clarify the procedures
the district engineer will follow when
the Regional Administrator advises that
a proposed dumping activity does not
comply with the criteria established
pursuant to section 102(a) of the Marine
Protection. Research and Sanctuaries
Act (MPRSA), or the restrictions
established pursuant to section 102(c)
thereof, in accordance with the
provisions of 40 CFR 225.2(b).
Port 325—Pennit Processing
Several minor changes have been
made In this part. These changes i volV
requesting additional Information from
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Federal Register / VoL 51. No. 219 I Thursday. November 13. 1986 / Rules and Regiuiations
41211
an applicant, providing for a reasonable
comment period. combining permit
documentation, and documenting issues
of national importance.
Section 325.1(b). TIus section has been
rewritten to clarify the pre-application
consultation process for major permit
applications. No significant changes
have been made in the content of this
section.
Section 325.1(d)(1): One commenter on
this content of applications paragraph
asked that where, through experience. it
has been found that specific Items of
additional Information are routinely
necessary for permit review, the district
engineer should be allowed to develop
supplemental information forms.
Another observed that restricting
production of local forms may Inhibit
joint permit application processes. If It
becomes necessary to routinely request
additional Information, the Corps can
change the application form, but that
must be done at Corps headquarter.
with the approval of the Office of
Management and Budget This change
does not place any additional
restrictions on developing local forms.
As Is now the case, local forms may be
developed for joint processing with a
Federal or state agency.
Section 325.1 (d) (8): This Is a new
section requIring an applicant to Indude
provisions for siting. consthictlon,
monitoring and managing the artificial
reefs. part of his application for a
permit. One commenter suggested that
the criteria for accomplishing these
activities must be completed In the
National Artificial Reef Plan before
establishment of such reefs can be
encouraged. Another recommended that
the regulation describe more specifically
the information to be supplied by an
applicant with regard to monitoring and
maintaining an artificial reef. The plan
includes general mechanisms and
methodologies for monitoring the
compliance of reefs with permit
requirements, and managing the use of
those reefs. it can be used as a guide for
the information to be supplied by the
permit applicant. Specific conditions for
monitoring and managing, as well as for
maintaining artificial reefs generally
need to be site-specific and should be
developed during permit processing.
The US. Coast,Guard requested that
they be provided copies of permit
applications for artificial reefs, and that
a permittee be required to notify the
Coast Guard District Commander when
reef construction begins and when It is
completed so timely information can be
included in notices to manners. The -
district engineer may elect to consult
with the Coast Guard, when
appropriate, during the pre-apphcatlon
phase of the permit process. At any rate,
the Coast Guard will receive public
notices of permit applications, and may
make recommendations to ensure
navigational safety on a case-by.case
basis. Appropriate conditions can be
added to permits to provide for such
safety.
Section 325J(e): Several commenters
expressed concern with language
changes requiring only additional
Information “essential to complete an
evaluation” rather than the former
requirement for Information to “assist In
evaluation of the application.” They felt
this change would reduce the data base
on which decisions would be made.
They indicated further that without
necessaiy additional Information.
district engineer, would not be able to
make a reasonable decision, the public’s
ability to provide meaningful comments
would be limited, and resource agencies
would have to spend more tIme
contacting the applicant and gathering
Information, They felt this could
increase delays rather than limiting
them. Several commenters asked that
the regulations be altered to specifically
require submission of Information
necessary for a 404(b)(1) evaluation.
Similar concerns were expressed with
the change stating that detailed
engineering plans and specifications
would not be required for a permit
application. Commenters advised that
without adequate plans or the ability to
routinely require supplemental
Information it may be Impossible to
Insure compliance with applicable water
quality criteria or make reasonable
permit decisions. Other commenters
wanted further restrictions placed on
the district engineer’s ability to request
additional Information. Suggestions
Included altering the regulations to
specify the type. need for, and level of
detail which could be requested, and
requiring the district engineer to prepare
an analysis of costs and benefits of such
information. Some commenters objected
to requirements for providing
information on project alternatives and
on the source and composition of
dredged or fill materiaL
This paragraph has been changed as
proposed. The intent of this change was
to assure that information necessary to
make a decision would be obtained.
while requests for non-essential
information and delays associated with
such requests would be limited.
Section 325.2(a)(6): The new
requirement to document district
engineer decisions contrary to state and
local decisions was adopted essentially
as proposed. The reference to state or
local decisions in the middle of this
paragraph inconectly did not reference
* 320.4W(4) In addition to * 320.4(jJ(2).
The adopted paragraph reference, stat
and local decisions In both of these
paragraphs. -
Section 325.2(b)(1)(ii): The May 12,
1983, proposed regulations sought to
speed up the process by reducing the
standard 80 day comment/waiver period
to 30 days for state water quality
certifications. Commenters on this
paragraph offered a complete spectrum
of views from strong support for the
proposed changes to strong opposition
to the proposal. Comments within this
spectrum Included opinions that states
must have 60 days; certification time
should be the same as allowed by ‘A
(i.e. 8 monthsj the proposal is Wegal It
conflicts with some state water quality
certification regulations and pmoedures
and It would reduce state and public
input to the decision-makIng process.
Most states objected to this reduction
with many citing established water
quality certification procedures required
by statute and/or regulation, which
require notice to the public (normally 30
days) and which allow requests for
public hsarlngswhlthcannotbe ‘
completed within the 30-day period. We
have, therefore, retained the 60 day
perIod In the July . 1982. regulatIons.
Some Corps districts have developed
formal or informal agreements with the
states, which Identify procedures and
time limits for submittal of water qualh.
certifications and waivers. Where these
are In effect, problems associated with
certifications are minimized.
Many commenters objected to the
May 12, 1983, proposal to delete from
the July22, 1982. regulations the
statement, “The request for certification
must be made In accordance with the
regulations of the certifying agency.”
Deleting this statement will not delete
the requirement that valid requests for
certification must be made In
accordance with State laws. However,
we have found that, on a case-by-case
basis in eome,states, the state certifying
agency and the district engineer have
found it beneficial to have some
flexibility to determine what constitutes
a valid request. Furthermore, we believe
that the state has the responsibility to
determine if It has received a valid
request. If this statement were retained
In the Corps regulation. It would require
the Corps to determine If a request has
been submitted In accordance with state
law. To avoid this problem, we have
decided to eliminate this statement.
Section 325.2(d) (2): Numerous
commenters expressed concern with
comment periods of less than 30 days.
They were concerned that, In order to
expedite processing times. 1.5 day
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41212 Federal Register / Vol. 51. No. 219 I Thursday . November 13, 1988 I Rules and Regulations
notices would become the norm These
commenters stated that 15 days was
isufficient to prepare substantive
omments and would not allow the —
public adequate participation in the
permit process as mandated by Section
101 of the CWA. State agencies noted
that, with internal and external mail
requiring as much as a week each for
the Corps and the state. 15 days would
not provide any time for consideration
of a project. Several commenters noted
that such expedited review times might
actually be counter-productive, as
Federal and state agencies might
routinely oppose projects and request
permit denial so that they would then
have sufficient time to review a project
and to work with an applicant to resolve
conflicts. We recognize that 15 days is a
very short comment period considering
internal agency processing and mail
time. We expect that comment periods
as short as 15 days would be used only
for minor projects where experience has
shown there would be little or no
controversy. Some districts have been
routinely using comment periods of less
than 30 days (20 and 25 days) while
others have used such procedures in
only a limited number of special cases.
In adopting this provision, we have
modified the May 12. 1983. proposal to
require the district engineer to consider
the nature of the proposal. mail time, the
need to obtain comments from remote
areas, comments on similar proposals.
and the need for site visits before
designating public notice periods of less
than 30 days. Additionally, after
considering the length of the original
comment period as well as those items
noted above, the district engineer may
extend the comment period an
additional 30 days if warranted. We
believe this provides the desired
flexibility with the necessary restraints
on when to use comment periods of less
than 30 days.
Sections 325.2(e)(!) and 325.5(b) (2):
Commenters supporting the use of
letters of permission (LOP) for minor
section 404 activities stated that
applicants will realize significant tune
savings for minor requests while there
will be no loss in environmental
protection. Objectors believe that the
Corps is seeking administrative
expediency at the cost of environmental
protection. Issues raised by commenters
include: the legality of the 404 LOP
procedure without providing for notice
and opportunity for public hearing
(Section 404(a) of the CWA): the legality
of issuing a permit which would become
effective upon the receipt or waiver of
401 certification and/or a consistency
certification under the CZMA the need
to be more definitive as to the criteria
for making a decision as to the
categories of activities eligible for
authorization under the LOP; and the
lack of coordination with Federal and
state resource agencies. A few
commenters were concerned that the
notice in the May 12, 1983. Proposed
Rules was insufficient because it did not
give the scope and location of the work
to be covered. The commenting states
also indicated that the notice was
insufficient for water quality
certification and coastal zone
consistency determination purposes
Other commentere were concerned that.
while LOP’s would be coordinated with
Federal and state fish and wildlife
agencies other resource agencies such
as EPA should also review Section 404
LOP’s. Based on the comments on the
proposed 404 LOP procedures. we have
decided not to adopt the 404 LOP
procedures as proposed. We are not
changing 325.5(b)(2). LOP format, nor
are we changing the section 10 LOP
provisions. Rather, we have revised
§ 325.2(e)(1) to describe a separate
section 404 LOP process. Unlike the
sectIon 10 LOP process. the section 404
process involves the identification of
categories of discharges and a generic
public notice. This LOP process is a type
of abbreviated permit process which
could and has been developed under the
July 22. 1982. interim final regulations.
These procedures will avoid
unnecessary paperwork and delays for
many minor section 404 projects in
accordance with the intent of Section
101(1) of the Clean Water Act
Section 325.7(b): We have added a
provision that, when considering a
modification to a permit, the district
engineer will consult with resource
agencies when considering a change to
terms, conditions, or features in which
that agency has expressed a significant
interest.
Section 325.9: One commenter
generally supported this section on the
district engineer’s authority to determine
jurisdiction but indicated that § 325 9(c)
should not be adopted because it
reflects the provisions of a
Memorandum of Understanding (MOU)
with EPA and would not be applicable if
the MOU is revised or deleted. We have
determined that this paragraph is not
now needed and have decided not to
adopt it.
Appendix A—Permit Form and Special
Conditions
A. Permit Form
Project Description: A comment was
received stating that intended use
should be specified for all permitted
work and not just for the fills Involved
A comment was also received
suggesting that we be more specific on
what discharges are covered by permit
authorizations We agree with these
points and have made appropriate
changes to the instructional material
relating to project descriptions
General Conditions
General Condition!. Several
commenters stated that the specified
three month lead time on the requesting
of permit extensions was too long. We
agree with these commentera and have.
therefore, reduced this lead time from
three to one month.
General Condition 2: One commenter
recommended that the wording of this
condition. relating to the maintenance of
authorized work, be modified to indicate
that restoration may be required if the
permittee fails to comply with the
condition. We agree and have modified
the condition accordingly. Another
commenter stated that It would not be
reasonable to enforce this condition
when a permitted underground facility is
abandoned. We generally agree with
this statement. However, we believe the
procedures governing the enforcement
of permit conditions are flexible enough
to allow a reasonable approach in such
situations.
General Condition 3: One commenter
indicated that this condition should be
modified to require the perinittee to halt
work that could damage discovered
historic resources and to protect those
resources from inadvertent damage.
That comnienter also indicated that
under certain circumstances it would
not be necessary to notify the Corps or
to halt work. This notification
requirement has been In effect since
1982. and the continuation of this
requirement provides for the Corps to be
notified in a timely manner. With this
notification, the Corps can react quickly
to determine the appropriate course of
action. We believe this approach has
proven to be satisfactory. Therefore, thir
condition is being adopted as proposed.
Proposed General Condition 4: In our
proposal. we specifically requested
comments on this condition, which
would require recording the permit on
the property deed. More than half the
comments received were on this
proposal. All but one of the commenters
who addressed this condition were
critical of it to a greater or lesser degree.
Inst itutional interest observed that this
condition would only add to their costs
since once lands were purchased they
were seldom sold. Institutional and
industrial interests observed that
permits often relate to eaiiements and
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No. 219 / Thursday, November 13, 1986 / Rules and Regulations 41213
not to fee simple ownershrp and that
compliance with the proposed condition.
- n such situations, would not be possible
or meaningful In some locations. One
commenter stated that a records hon
condition should not be necessary,
provided pernuttees complied with
proposed General Condition 5, which
requires owners to notify the Corps
when property is transferred. To
strengthen the property transfer
condition, we have modified the
statement preceding the transferee’s
signature to specify that the requirement
to comply with the terms and conditions
of the permit movas with the property.
One commenter stated that a general
condition requiring recordation where
possible would be unfair, since it would
not be uniformly applicable to all
permitlees. Further coordination with
our field offices Indicates that
compliance with and use of the
proposed condition probably occurs
only Ins fewlocationa.ThLs
coordination also indicates that for
some jurisdictions, where records hon 1*
possible. the cost of recordatlon may be
so great that ii e eeds the benefits.
Given that recordation may not be
practical or appropriate for all Corps
permits, we have deleted this general
condition from the permit form and
renumbered the remaining general
conditions accordingly. On the other
hand, the recordatlon requirement Is
appropriate and useful for many types of
structures needing Corps permits, to
provide fundamental fairness toward
future purchaser. of real property and to
facilitate enforcement of permit
conditions against future purchasers.
For example, If the Corps were to issue
a permit for a pier, that permit would
require the owner to maintain the pier in
good condition and in conformance with
the terms and conditions of the permit. If
the builder of the pier were to allow the
pier to deteriorate, he could easily
transfer the pier and associated property
with no notice to the purchaser of the
legal obligation to repair and maintain
the pier. uniess the permit were
recorded along with the title documents
relating to the associated property. This
failure to give notice to prospective
purchaser. would be unfair, and would
increase the Federal Government’s
difficulty in enforcing permit conditions
against future purchasers. Because of
this important notice function, we have
added a recordation condition under B.
Special Conditions, for use wherever
recordation is found to be reasonably
Practicable and appropriate.
General Condition 4 (Proposed
General Condition 5): One comnienter
suggested that this condition. relating to
the transference of the permit with the
property, be modified to provide for
notice and approval from the Corps
before the permit is transferred. The
reason given for this suggestion was that
the Corps may have special knowledge
of the particular transferee’s history and
capabilities and may wish to modify the
terms and conditions of the permit
accordingly. The suggested change
would require the issuing offIce to
conduct a review and prepare decision
documentation every time property is
transferred and there is a Corp. permit
involved. We believe that such a review
in every case involving the transfer of a
permit would constitute en Inefficient
use of available resources. Under the
procedures contained in 33 CFR 325.7, a
permit is subject to suspension.
modification, or revocation at any time
the Corps determines such action is
warranted. We believe this Is a better
approach, and have, theref’oie, retained
the proposed wording of this condition.
General Condition 5 (Proposed
General Condition 6)’ One commenter
recommended that this proposed
condition, which relates to compliance
with the provisions of the water quality
certification, be changed to provide for
the modification of the Corps permit if
EPA promulgates a revised Section 307
standard or prohibition which applies to
the permitted activity. We agree that
permit. must be modified when
circumstances warrant. Procedures
governing modification. are contained
In 33 CFR 325.7. and we advise
permittees of these procedures in Item 5
(Reevaluation of Permit Decision) under
the “Further Information” heading.
Therefore, since we believe this
potential requirement for permit
modifications ii adequately covered
under the “Further Information”
heading, we have retained the proposed
wording of this condition.
General Condition 6 (Proposed
General Condition 7)’ One commenter
noted that compliance inspections
should be conducted during normal
working hours. As a general rule, this
observation seems reasonable.
However, since we believe that
compliance inspections will be
scheduled during normal working hours
when possible, we have not made any
changes to the proposed wording of this
condition.
Further Information
Limits of Federal Liability One
commenter suggested that the
Government could, under certain
circumstances, be held liable for
damages caused by activities authorized
by the permit and suggested that Item 3.
which limits the Government’s liability.
be deleted in its entirety. While it is true
that some courts have found the United
States liable for damages sustained by
the owners of permitted structures or by
individuals injured in some way by
those structures, it has never been the
intent of the Corps to assume either type
of liability or to insure that no
interference or damage to a permitted
structure will occur after it has been
built. In permitting structures within
navigable waters, the Corps does not
assume any duty to guarantee the safety
of that structure from damages caused
by the permittee’s work or by other
authorized activities In the water, such
as channel maintenance dredging. ‘This
is viewed as en acceptable limitation on
the privilege of constructing a private
structure for private benefit in a public
waterway, particularly since insurance
is readily available to protect the
permittee from any damage his structure
may sustain. Accordingly, the language
in Item S has been further darified to
preclude any inference that the
Government assumes any liability for
interference with or damage to a
permitted structure as a result of work
undertaken by or on behalf of the United
State. in the public interest
Reevaluation of Permit Decision.’ One
commenter recommended that
reevaluation. be limited to the three
circumstances listed. Although we
believe that the vut majority of the
reevaluation. required will qualify
under one of the three listed
circumstances, we caneot exclude the
possibility of non.qualifytng, unique
situations where the public’s good may
require a reevaluation ofa permit
decision. Therefore, we have retained
the wording which states that
reevaluation. will not neceuarlly be
limited to the circumstances Listed.
Another commenter recommended that
we add to this item that we have the
authority to issue administrative orders
to require compliance with the terms
and conditions of permits and to Initiate
legal actions where appropriate. The
procedures governing these actions are
contained In 33 CFP. 3284 and 328.5 end
reference was made to these procedures
in the proposed wording. However, we
agree that it would be helpful to modify
the proposed wording to provide
permittees with a better understanding
of our enforcement options; we have
modified the text accordingly.
B. Special Conditions
One commenter suggested that -
Special Condition 5, which requires -
permitlees authorized to perform certain
types of work to provide advance
notifications to the National Ocean
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41214 Federal Register I Vol. 51, No. 219 I. Thursday. November 13, 1988 I Rules and.RegulationS
Service and the Corps before beginning
work, be changed to allow verbal
notifications followed by written
confirmations. We have determined that
this suggestion. if adopted. would
greatly increase the chance of errors in
notice documents published b ’ the
Government and would not be in the
beat interest of mariners. Two weeks
advance notice is a reasonable period of
time both for construction scheduling
and for Government notification to
mariners. Therefore. we have not
adopted this suggestion.
One cominenter suggested that a
special condition be added, for use
when appropriate, to require the
pernuttee to carry out a historic
preservation plan attached to the permit.
The wording of special conditions are
normally determined on a case-by-case
basis. Only those that are used often
and are subject to standardized wording
are listed in Appendix A (B Special
Conditions). While we agree that special
conditions of this nature may be
required. we do not believe they lead
themselves sufficiently to standardized
wording to warrant adding a specific
special condition to Appendix A.
Three comments were received which
related to General Condition (n) on the
previous permit form. This condition
required the perrnittee to notify the
Issuing office of the date whcn the work
authorized would start and of any
prolonged suspensions before the work
was complete. Two of the commentere
recommended that this provision be
retained as a general condition. and one
comments? recommended that it be
specified a. a sp dal condition. Our
research Indicates that this condition, as
a general condition applicable to all
permitted activities. baa been virtually
unenforceable in most areas and of
limited use as a permit monitoring tool.
We agree that special conditions
requiring parrot tteea to notify the Corps.
in advance, of the dates permitted
activities wlU start. are appropriate In
certain situatfons. Two of these
aiteettons are coverôd by Special
ConditIon 3 (maintenance dredging) and
Spectat ConditIon 5 (charting of
activities by National Ocean Service).
Since we believe our field offices are In
the beet position to identify any other
situations in which similar special
conditions would be appropriate, we
have not adopted these
recommendations.
As discussed under Proposed General
Condition 4 above, we have added a
sixth special recordatlon condition for
use where recordation is found to be
reasonably practicabls.
GenerriL’ In edition to several
editorial changes. we have added
definitions for the word “you” and its
derivatives and the term “this office’ at
the beginning of the permit form. We
have substituted the term “this office”
for references to the district engineer
throughout the form.
Part 326—Enforcement
General: Three commenters objected
to what they perceived as a lack of
specific requirements and recommended
that the word “should” be changed to
“shall” throughout Part 326. Another
commenter stated that the proposed
regulations were too specific and
recommended that a significant amount
of the procedures in this Part be deleted
and addressed in internal guidance. The
word “should.” where used, allows
district engineers to base their
enforcement actions on an assessment
of what is the best approach on a case-
by-case basis. The word “shall” would
require district engineers to Implement
specified actions even though such
actions may be obviously inappropriate
in relation to a particular case. We
believe this flexibility is appropriate and
have, therefore, retained the word
“should” in most of the places where it
occurred in the proposed regulations.
However, the word “will” is used at
various places In this Part where
flexibility Is not appropriate. We believe
that the proposed language achieves a
proper balance between the providing of
necessary guidance and flexibility.
Finally, one comments? suggested that
Part 326 be rewritten to include only two
requirements: orders for Immediate
restoration of filled wetlands and
referrals for legal action if these orders
are not complied with. When Congreu
established the Corps regulatory
authorities. It allowed for the issuance
of permits. To ignore the issuance of
permits as one means of resolving
violations would be inappropriate.
Section 328.1: As a result of further
internal coordination, we have
determined that it would be appropriate
to make It clear that nothing in this Part
establishes a non-discretionary duty on
the part of a district engineer. Further.
nothing in this Part should be
considered as a basis for a pnvate right
of action against a district engineer.
Therefore, we have modified this
paragraph accordingly.
Section 3282 One commenter
recommended that this statement of
general enforcement policy be expanded
to provide priority guidance on
enforcement actions. Two other
comnienters recommended
strengthening of this paragraph, with
one recommending that it cite the firm
and fair enforcement of the law to
prohibit and deter damage. to require
restoration, and to punish violators as
the purpose of the Corps enforcement
program. In that we refer in this
paragraph to unauthorized activities, we
are reflecting the fact that these
activities are unauthorized and subject
to enforcement actions pursuant to the
legal authorities cited at the beginning of
this Part. Further, the other
recommended changes would simply
duplicate the discussions of enforcement
methods and procedures already
contained in H 326.3. 326.4, and 328.5.
However, we have added a statement to
this provision to reflect the fact that
EPA has independent enforcement
authorities under the Clean Water Act,
and thus. district engineers should
normally coordinate with EPA.
Section 3283(b)’ One commenter
recommended that this paragraph be
amended to require the establishment of
numbered file systems for violations.
Most Corps districts already assign
control numbers to enforcement actions,
and since this is an administrative
function, we have determined that it
would be inappropriate to include this
requirement in a Federal regulation
designed to provide enforcement policy.
Section 328.3(c)(2): One commenter
suggested rewording of this paragraph to
make It clear that a violation Involving a
completed activity may or may not be
resolved through the issuance of a Corps
permit. The reference in the proposed
wording to not initiating “any additional
work before obtaining required
Department of the Army authorizations”
apparently led to the commenter
misunderstanding this paragraph. The
intent of this wording related to warning
a violator not to initiate work on other
projects before obtaining required Corps
permits. Since the violator is in the
process of being made aware of the
legal requirements for obtaining Corps
permits. we have determined that this
warning Is unnecessary and have.
therefore, deleted It.
Section .228 ,3(d113): One cominenter
recommended that this paragraph be
amended to indicate that the
information requested will also be used
for determining whether legal action is
appropriate in addition to determining
what initial corrective measures may be
required. We agree that the information
obtained from violators may provide a
basis for enforcement decisions other
than those relating to interim corrective
measures. Therefore, we have revised
this provision to provide for notifying
violators of potential enforcement
consequences and for the more
generalized use of the information
provided byviolators in the
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Federal Register / Vol. 51, No. 219 / Thursday. November 13.1986 / Rules and Regulations 4jfl5
identification of appropriate
enforcement measures.
Section 326 3(c)(4) ’ One cominenter
recommended that this provision be
reworded to indicate that the limitations
on unauthorized work of an emergency
nature are to be established in
conjunction with Federal and state
resource agencies. We believe it is
understandable that actions of this type
will be completed on an expedited basis
with the procedures in * 328.3(o—d) being
followed concurrently. Since * 328.3(d)
already provides for interagency
consultations, in appropriate cases, we
do not believe it Is necessary to
duplicate that guidance in this provision.
Section 326.3(d)(1) One commenter
recommended that “initial corrective
measures” be defined as measures
“which substantially elminate all
current and future detrimental impacts
resulting from the unauthorized work.”
This commenter also recommended that
the procedures in 33 CFR 320.4 and 40
CFR Part 230 be referenced for use in
determining what “initial corrective
measures” are required. Essentially, this
commenter is recommending that all
violators be denied a Corps
authorization and required to undertake
full corrective measures in the Initial
stage of an enforcement action. This
would not be a reasonable or practical
approach, since it would eliminate
public participation and would result In
the removal of work that may have been
permitted under normal circumstances.
Another commenter objected to the
statement that further enforcement
actions “should normally” be
unnecessary If the initial corrective
measures substantially eliminate all
current and future detrimental impacts.
This cornmenter sees this provision as
barring legal action in appropriate cases
such as those involving willful, flagrant.
or repeated violations. This is not the
case. To say that such corrective
measures “should normally” resolve a
violation does not mean that they will
“always” resolve a violation. Another
commenter stated that consultations
with the Fish and Wildlife Service and
the National Marine Fisheries Service
should be made mandatory in this
paragraph pursuant to the Fish and
Wildlife Coordination Act. The reason
given was that this provision would
result in the issuance of permits which
would require such consultations. This
paragraph deals with initial corrective
measures and not with the issuance of
permits. These agencies will be given an
opportunity to comment in response to a
public notice before any decision is
made on an after-the-fact permit
application. In view of the above -
discussion, we have retained the
proposed wording of this paragraph.
Section 326.3(d112)’ One commenter
recommended that this paragraph be
deleted on the basis that it provided the
district engineer with too much
discretion and questioned the cross-
reference to 328.3(3). This paragraph
was intended to provide guidance to
dist.,ct engineers in situations involving
prior initiation, of litigation or denials of
essential authorizations or certifications
by other Federal, state or local agencies.
We believe district engineers should
have the discretionary authority to
determine what is a reasonable and
practical course of action for the Corps
under these circumstances. However,
we have revised this paragraph to
clarify its intent and to correct the cross-
reference.
Section 3 ,3(d)(3): As a result of
further review within the Corps, we
have determined that the provision
proposed as 328.3(e)(1)(iJ, which states
that It Is not necessary to issue a Corps
permit for initial corrective measures,
should be moved to § 328.3(d) to more
appropriately reflect the sequence of
enforcement procedures. Therefore, we
have modified this provision and
established It as new 328.3(d)(3).
Section 326.3(e): One commenter
objected to the after-the-fact permit
process. and observed that the process
was generally seen as a mechanism to
avoid compliance with the law.
Exceptions to the processing of after-
the.fact permit applications are
contained In 326.3(e)(i-iv). However.
in most cases, the public participation
associated with the processing of an
application Is necessary before a
violation can be appropriately resolved.
Section 326.3 (e)(I) One commenter
recommended that this paragraph be
amended to specify the criteria for legal
action and to require that public notices
associated with after-the-fact permit
applications clearly identify that a
violation is involved. The criteria for
legal actions are given in 328.5(a). and
permit decisions are based on whether
an activity complies with the section
404(b)(1) Guidelines, where applicable,
and on whether it is or is not found to be
contrary to the public interest. Permit
decisions are not based on whether a
permit application is before or after-the-
fact. We have, therefore, retained the
proposed wording of this paragraph.
Proposed Section 326.3(e)(1)(i) We
have deleted this provision here and
have moved a modified version of it to
new * 326.3(d)(3); see discussion under
* 328.3(d)(3).
Section 326 ..3(e)(1)(i)—Prvposed as
326.3(e)(1)(i,): This provision indicates
that the processing of an after-the-fact
permit application will not be necessar
“when’ detrimental impacts have been
eliminated by restoration. One
comznenter recommended that district
engineers be required to consult with
EPA before determining that restoration
has been completed that eliminates
current and future detrimental impacts.
We have addresse this comment by
modifying * 328.2 and 328.3(g) to
provide for such coordination when the
district engineer is aware of an
enforcement action being considered by
EPA under its independent enforcement
authorities. Another cominenter
observed that the word “when”
appeared to be in error and
recommended substituting the word
“unless.” This would indicate that the
Corps should process an after-the-fact
permit application only after restoration
had taken place and there Is no work
requiring a permit. This obviously would
not be reasonable. In view of the above
discussion, we have retained the
proposed wording of this provision.
Section 328.3(e)(1)(iIi) —Proposed as
326.3(e)(1)(iv): One commenter
recommended that a provision be added
to this paragraph to prohibit the
acceptance of an application for a Corps
permit where an activity is not In
compliance with other Federal, state, or
local authorization, or certification., In
essence, this amounts to requiring
district engineers to take step . to
enforce the terms and conditions of
another agency’. authorization or
certification. We believe this Is the
Issuing agency’, responsibility and not
the responsibility of the Corps. Of
course, where that other agency ha.
denied a requisite authorization, the
Corps would not accept an application
for processing.
Section 326 ,3(e)(1)(iv) .—Propo8edas
328.3(e)j’J)(v): Two commentere
recommended rewording of this
paragraph to prohibit the acceptance or
processing of any after-the-fact permit
application when the Corps Is aware of
litigation or other enforcement.sction,
that have been Initialed by other
Federal, state or local agencies. We
believe the Corps should, In appropriate
situations, be able to take positions on
cases that are in conflict with the
viewpoints of other agencies. Therefore.
we have retained the wording of this
paragraph essentially as proposed.
However, since A ha independent
enforcement authorities, we have
provided for coordination with EPA In
* * 326.2 and 326.3(g).
Section 326.3(g): One commenter
indica ted that this paragraph hou1d
delineate EPA’s responsibility over. -
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No 219 / Thursday. November 13, 1988 / Rules and Regulations
recognizing and reporting unpermitted
‘ischarges. Thi, paragraph deals only
ith cases where EPA is considering an
nforcement action. The reporting of
violations Is covered under 326 3(a).
Another oommenter recommended that
this paragraph be reworded to ensure
that Corps actions under Part 328 are
not in conflict with EPA enforcement
actions Another commenter. a state
agency. suggested that this provision be
expanded to require similar
consultations with state agencies that
have Initiated enforoement actions. The
reason we have provided for
consultations with EPA In this
paragraph Is due to the fact that both the
Corps and EPA have overlapping
authorities pweuant to the Clean Waler
Act. This is not the case with state
agencies. Nevertheless, we believe
district engineers will wish to consult
with state agencies In appropriate
circumstances. In any event, as we
stated in our discussion telafing to the
wording of * 32&3 (e)(it). we believe the
Corps should have the right to take a
position that may conflict with another
agency’s viewpoint. However, we have
revised this provision to emphasize that
district engineers should coordinate
wIth ’A when they sie aware of
enforcement actions being considered
by EPA wider lie Independent
nforcement authorities.
Section 32e4(o-bfr A. a resuk of
further Internal coordination, we have
determined that 328.4(a) should make
it clear that district engineers have the
discretionary authority to determine
when the Inspection of permitted
activities Ii appropriate. We have
modified 328.4(e) accordIngly. In
addition, we have added a new
328.4(b) to further discuss Inspection
limitations.
Section 32&4(d)—PropO8ed as
328.4(c): One ommenter. a state agency.
objected to the provisions In this
paragraph for attempting to obtain
voluntary compliance before Issuing a
formal compliance order. The rationale
given was that the absence of a formal
order would make coordination between
the Corps and the state dimcult.
Another state agency recommended
consultations with state agencies and
with EPA. The proposed, non-
compliance procedures do not prohibit
early coordination with other regulatory
agencies. when appropriate, and
presumably. if the permittee quickly
brings his work Into compliance, such
coordination should not be necessary.
One commenter objected to allowing
a district engineer to issue a compliance
order and to not making the use of Corps
suspensico/revocatlori procedures or
legal actions mandatory. Another
commenter recommended that
suspension! revocation procedures or
legal actions be made mandatory if a
violator fails to comply with a
compliance order The issuance of a
compliance order is provided for in
section 404 1s) of the Clean Water Act.
and in most cases, we believe that the
methods available for obtaining
voluntary compliance should be used
before discretionary consideration is
given to using the Corps suspension!
revocation procedures or initiating legal
action.
Another commenter objected to the
term “significantly serious to require an
enforcement action” on the basis that all
violations are worthy of some
enforcement action. Minor deviations
from the terms and conditions of a
Corps permit may not always warrant
an enforcement action. For example.
would a dock authorized to be
constructed with a length of 50 feet but
inadvertently constructed with a length
of 51 feet constitute a violation
warranting an enforcement action? We
agree there may be extenuating
circumstances, such as the additional
length of the dock being just enough to
impact the water access of a neighbor.
However, this Is a judgment that Is best
made by the district engineer Involved.
One Commenter objected to the term
‘mutually agreeable solution” on the
basis that such a solution could
invalidate the prior results of
coordination with resource agencies.
Since this term refers to bringing the
permitted activity into compliance or the
resolution of the violation with a permit
modification using the modification
procedures in 33 CFR 325.7(b), such
resolutions would not invalidate prior
coordination. In view of the above
discussion, we have retained the
proposed wording of this paragraph.
Section 32 8 .5(a): One commenter
requested that the words “willful” and
“repeated” be deleted from this
paragraph, the rationale being.
apparently. that most violators are not
repeat or willful offenders and that the
Corps should take the one opportunity It
has to bring legal action against these
one-time violators. We do not agree
with this approach as being either
reasonable or practical. Another
commenter recommended adding
violations that result in substantial
impacts to the list of violations that
should be considered appropriate for
legal action. We agree with this
recommendation and have modified the
wording of this provision accordingly.
Section 328.5(c): One commenter
recommended rewording of this
paragraph to require that copies be
provided to EPA of Corps referrals to
local U S Attorneys We believe it
would be more appropriate to address
matters relating to the detailed aspects
of interagency coordination in
interagency agreements Therefore, we
have retained the proposed wording of
this paragraph.
Section 328 5(d)(2)’ As a result of
further internal coordination, we have
determined that litigation cases
involving isolated water no longer need
to be referred to the Washington level
on a routine basis. Therefore, we have
deleted this provision.
Section 3285(e): One commenter
recommended that the word “may” be
replaced with the words “encouraged
to” in the provision relating to sending
litigation reports to the Office of the
Chief of Engineers when the district
engineer determines that an
enforcement case warrants special
attention and the local U.S. Attorney
has declined to take legal action. We
agree with this recommendation and
have made the change.
Another commenter suggested that
wording be aided to this paragraph to
address circumstances In which permits
are not required. The fact that a legal
option may not be available does not
mean that a permit is not required. If the
district engineer chooses to close the
case record, the activity In question will
still be unauthorized and therefore
illegal. Such unauthorized activities will
be taken into account if the responsible
parties become involved in future
violations. One commenter suggested
that Corps attorneys Initiate legal
actions as an alternative to actions by
local U.S. Attorneys. However, the
Corps does not have the authority under
existing Federal laws to initiate legal
actions on its own.
Another conirnenter recommended
that this paragraph be modified to
provide for joint Federal/state
prosecution of violators. Since this
involves discretionary decisions on the
part of the Department of justice. it
would not be appropriate to include a
provision of this nature in the Corps
enforcement regulations.
Part 328—Definition of Waters of the
United States
This part Is being added in order to
clarify the scope of the Section 404
permit program. This part was added In
direct response to many concerns
expressed by both the public and the
Presidential Task Force on Regulatory
Relief. We have not made changes to
existing definitions; however, we have
provided clarification by simply settl
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7Co
Federal Register / Vol. 51, No. 219 / Thursday, Nove ’nbcri3 , 1986/ Rules and Regulations
41217
them apart in a separate and distinct
Part 328 of the regulation
The format for Part 328 has been
changed slightly from the proposed
regulation in order to improve clarity
and reduce duplication. The content of
the proposed § 3282 “General
Definitions” has been partially
combined with § 3283 “Definitions.”
The remainder has been reestablished
as § 328.5, “Changes in Limits of Waters
of the United States ‘ Section 328.2 has
been established as “General Scope.”
The proposed § § 328.4 and 328.5 have
been combined into § 328.4 and renamed
“Limits of Jurisdiction.”
A number of commenters appeared to
have misinterpreted the intent of this
part. Many thought we were trying to
reduce the scope of jurisdiction while
others believed we were trying to
expand the scope of jurisdiction. Neither
Is the case. The purpose was to clarify
the scope of the 404 program by defining
the terms in accordance with the way
the program Is presently being
conducted.
Section 328.3: Definitions. This section
incorporates the definitions previously
found In * 323.3 (a), (c). (d), (I) and (g).
Paragraphs (c), (d), (I) and (g) were
incorporated without change. EPA has
clarified that waters of the United States
at 40 CFR 328.3(a)(3) also include the
following waters:
a. Which are or would be used as
habitat by birds protected by Migratory
Bird Treaties; or
b. Which are or would be used as
habitat by other migratory birds which
cross state line.; or
c Which are or would be used as
habitat for endangered species: or
d. Used to lmgate crops sold in
interstate commerce.
For clarification it should be noted
that we generally do not consider the
following waters to be “Waters of the
United States.” However, the Corps
reserves the right on a case.by-case
basis to determine that a particular
waterbody within these categories of
waters is a water of the United States.
EPA also has the right to determine on a
case-by-case basis if any of these
waters are “waters of the United
States.”
(a) Non-tidal drainage and irrigation
ditches excavated on dry land.
(b) Artificially Irrigated areas which
would revert to upland if the Irrigation
ceased.
(c) Artificial lakes or ponds created by
excavating and/or diking dry land to
collect and retain water and which are
used exclusively for such purposes as
stock watering. Irrigation, settling
basins, or rice growing.
(d) Artificial reflecting or swimming
pools or other small ornamental bodies
of water created by excavating and/or
dikir g dry land to retain water for
primarily aesthetic reasons
(e) Waterfilled depressions created in
dry land incidental to construction
activity and pits excavated in dry land
for the purpose of obtaining fill, sand, or
gravel unless and until the construction
or excavation operation is abandoned
and the resulting body of waler meets
the definitrnn of waters of the United
States (see 33 CTR 328.3(a)).
The term “navigable waters of the
United States” has not been added to
this section since it Is defined in Part
329.
A number of comments were received
concerning the proposed change to the
definition of the terms “adjacent” and
the proposed definitions for the terms
“Inundation”, “saturated”, “prevalence”,
and “typically adapted.” A number of
commentere believed that these terms
may better define the scope of
jurisdiction of the section 404 program.
but such definitions should more
rightfully be within the province of the
Environmental Protection Agency In
order to remain consistent with the
opinion of Benjamin Civiletti. Attorney
General (September 5, 1979). These
definitions would require the prior
approval of the Environmental
Protection Agency, which has not been
forthcoming. Therefore, these new
proposed definitions will not be adopted
at this time.
To respond to requests for
clarification, we have added a definition
for “tidal waters.” The definition is
consistent with the way the Corps has
traditionally interpreted the term,
Section 3284: Limits of Jurisdiction.
Section 328.4(c)(1) defines the lateral
limit of jurisdiction In non-tidal waters
as the ordinary high water mark
provided the jurisdiction is not extended
by the presence of wetlands. Therefore.
it should be concluded that in the
absence of wetland. the upstream limit
of Corps jurisdiction also stops when
the ordinary high water mark is no
longer perceptible.
Section 328.5: Changes in Limits of
Waters of the United States. This
section was changed to reflect both
natural and man-made changes to the
limits of waters of the United States.
This change was made for clarification
and resulted from consultation with the
Environmental Protection Agency.
Section 328.8. Supplemental
Clanf,cat,on. Most commenters favored
the Corps plans to give special
consideration to unique areas such as
Arctic Tundra that do not easily fit the
generic” wetlands definition. Several
commenters indicated that the Corps
should clarify its intended use of this
section. and one questioned the need to
“describe” unique areas in the Federal
Register. A number of commenters
indicated that criteria should be
specified for determining wetland types
to be included as unique areas. Some
commenters stated that close
coordination between the Corps and the
Environmental Protection Agency will
be necessary when selecting unique
areas and developing procedures for
making wetland determinations in such
areas, since the Environmental
Protection Agency has the final
authority to determine the scope of
“Waters of the United States.”
While we believe that supplemental
clariflcaion of unique areas will be a
positive step In clarifying the scope of
jurisdiction under the sectIon 404 permIt
program, we have determined that such
supplemental clarification can be done
under existing regulations of the
Environmental Protection Agency and
the Corps and therefore have deleted
this section.
Part 329—Definition of Navigable -
Waters of the United States
We at’, currently planning to propose
a complete revision of Part 329 In the
near future, to simplify and clarify the
procedures Involved, while retaining the
essential aspects of the relevant policy.
In the Interim, we are making the two
minor changes discussed below.
Section 3 fl: This section has been
modified to clarify that the lateral extent
of jurisdiction In rivers and lakes
extends to the edge of all such
waterbodle. as it doe. In bays and
estuaries (f 329.12(b)),
Section 3 22(o): This section has
been corrected to reflect that the
territorial seas, for the purpose of Rivers
and Harbors Act of 1899 jurisdIction,
extend 3 geographIc nilles everywhere
and are measured from the baseline.
Part 330—Nationwide Permits
We are reissuing the 26 nationwIde
permits at * 330.5(a) as modified and
conditioned. The nationwide permits
will be in effect for 5 years beginning
with the effective date of thi, regulation.
unless sooner revised or revoked.
Section 330.1: This section was
restructured and updated In order to
improve Its readability and technical
accuracy. The definition concerning the
division engineer’. discretionary
authority was deleted from this section
since similar language appears in
§ 330.2. “Definitions.” The discussion
concerning the applicability of
nationwide permit. as they relate to
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41218 Federal Register / VoL 51, No. 219 / Thursday. November 13, 1986 / Rules and Regulations -
other Federal. state, and local
authorizations was deleted from this
section and relocated to § 330.5(d)
“Further Information.”
Section 330.2 The definition of the
term “headwaters” was deleted from
Part 323 and relocated to § 330.2(b).
since the definition is used as part of the
nationwide permit program. The
definition of the term “natural lake”
which was proposed at § 330.2(c) has
been deleted Changes to the
“headwaters”/’isolated waters”
nationwide permit which is found at
§ 330 5(a)(26) have obviated the need for
this definition.
Section 3305. In order to better inform
the public of the statutory authority
under which each nationwide permit has
been issued, we have added the
authority by parenthetical expression at
the end of each nationwide permit.
We had proposed nationwide permits
for activities funded or authorized by
another Federal agency or department
and For activities adjacent to Corps of
Engineers civil works projects. Most
commenters discussed the two proposed
nationwide permits together. The most
frequent com ts questioned whether
they would comply with section 404(e)
of the CWA . They believed these
nationwide permits could authorize a
wide variety of Federal projects that
would not be similar In nature and
projects whh.h could have significant
adverse envIr ental Inpacte on
aquatic resources. Numerous
cc’mmenters stated that the Corps would
be delegating Its 404(b)(1) compliance
responsibilities to other agencies and
that there is a natural tendency of such
agencies to be self-serving. Many
commenters, including some states,
objected that the public and other
agencies would not have an opportunity
to review some large Individual projects.
Many cominentere encouraged the
adoption of these nationwide permits; in
most cases they based their opinion
upon reduction in duplication and the
e’cpedituig of project authorization.
Based on the comments received we
have decided that clarification of
activities that could be covered by
nationwide permits would be necessary
to insure proper understanding and field
application. Because of the complexity
of doing this and an evaluation of the
comments received, we have decided
not to adopt these two nationwide
permits
Section 330.5(a) (3): This nationwide
permit for repair, rehabilitation, or
replacement of existing structures or fill
has been clarified to show that beach
restoration Is not authorized by this
nationwide permit.
Section 330 51 a)! 6) This nationwide
permit for survey activities was clarified
to show that it does not authorize the
drilling of exploration-type bore holes
for oil and gas exploration.
Section 330.5(a)(7) This nationwide
permit for outfall structures was
clarified by adding language concerning
minor excavation, filling and other work
which is routinely associated with the
installation of intake and outfall
structures.
Section 330.5(a)(18) This nationwide
permit for discharges up to 10 cubic
yards was clarified by indicating that it
does not authorize discharges for the
purpose of stream diversion. The
footnote was deleted because it was
redundant with the terms of the
nationwide permit itself.
Section 330.5(a)(19). This nationwide
permit for dredging up to 10 cubic yards
was clarified by indicating that it does
not authorize the connection of canals
or other artificial waterways to
navigable waters of the United States.
Section 330.5 (o)(22): This nationwide
permit for the removal of obstructions to
navigation was clarified by indicating
that it does not authorize maintenance
dredging. shoal removal, or riverbank
snagging.
Section 33a5(b)(3): This condition for
the protection of endangered species
was modified to set forth more clearly
options available to the district engineer
to satisfy section 7 of the Endangered
Species Act when it has been
determined that an ectivtty may
adversely affect any listed endangered
species or its critical habitat.
Section 330 5(b)(7): This condition for
the protection of wild and scenic rivers
was modified to define more clearly
components of the National Wild and
Scenic River System by showing that it
includes any Congressionally
designated “study river.”
Section 330.5(b)(9): This condition for
the protection of historic properties was
added in response to numerous
comments which expressed concern for
an apparent lack of consideration which
was being given historic properties. This
condition outlines the procedures to be
followed by both the pernuttee and the
district engineer to pros ide fur
modification, suspension. or revocation
of a nationwide permit or c’ntact with
the Advisory Council on Historic
Preservation if an activity authorized by
a nationwide permit may adversely
affect an historic property.
Section 330.5 (b)(10): This condition
was added as a result of comments
which expressed concern that activities
performed under the nationwide permits
could impair reserved tribal rights.
Section 330 5(b) (11) and (12). These
conditions were adopted as proposed.
They provide notification to the public
that, within certain states. authorization
for the activity may have been denied
without prejudice as a result of state 401
water quality certification denial or
nonconcurrence with Coastal Zone
Management consistency These
conditions trigger the provisions of
§ § 3309 and 330.10.
Section 330.5(b)(13). This condition
was added to alert the public that
regional conditions may have been
added by the division engineer in
accordance with § 330.8(a).
Section 330.5(c). The Grandfathenng
provision included in the October 5.
1984. final regulations expires on April 5,
1986. before the effective date of these
regulations and is, therefore, no longer
needed and has been deleted. A new
paragraph has been added to provide
the public further information on
nationwide permits as they relate to
such things as compliance with
conditions, other required
authorizations, property rights. Federal
projects, and revised or modified water
quality standards.
Section 330.5(d): This paragraph has
been added to clarify that the Chief of
Engineers has the authority to modify.
suspend. or revoke any nationwide
permit.
Some states indicated in their
comments that there might be other
ways to reduce burdens on the public
within their state other than the
nationwide permits. One state suggested
that it aught be appropriate to revoke all
the nationwide permits in favor of
regional permits subject to interagency
review. The authority exists for the
Chief of Engineers to revoke some or all
of the nationwide permits within a state.
There are also existing provisions in the
regulations for district engineers and the
states to develop a permit system
designed around specific state
authorities. These existing provisions
include regional general permits.
programmatic general permits, transfer -
of the 404 program (see 33 CFR 323.5),
joint processing. permit consolidation.
preapplication consultation and special
area management planning. Before
adopting a permit system designed
around specific state authorities, a
public notice providing an opportunity
for a public hearing would be issued
outlining the proposed permit system
within the state and the proposal to
revoke the nationwide permits. If such a -
system is developed, the Chief of
Engineers will consider revoking all or
most of the nationwide permits within a
state.
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27J
Federal Register I Vol. 51, No. 219 / Thursday, November 13, 1956 / Rules and Regulations
41219
Section 330 8(a) The concept of case-
by-case regional conditioning authority
received overwhelming support. This
new paragraph allows the division
engineer through discretionary authonty
to add activity specific conditions to
nationwide permits on a case-by-case
basis. The district engineer may do the
same when there is mutual agreement
with the permittee or when conditions
are necessary based on conditions of a
state 401 certification.
Section 33a8(c): This paragraph was
modified to clarify that, although the
division engineer has used discretionary
authority to require Individual permits,
he may subsequently allow the activity
to be authorized by nationwide permit if
the impediment to using the nationwide
permit, which triggered the discretionary
authority, has been removed.
Section 330.8(c)(2): This paragraph
has been modified to allow division
engineers the discretionary authority to
require individual permits for categories
of activities or specific geographic areas.
This authority was previously exercised
by the Chief of Engineers. However, the
Chief of Engineers is retaining this
authority on a statewide or nationwide
bps’s
Section 3309- Many commenters
objected to the Issuance of nationwide
permits when a state denies 401
certification. Their objections were
based on the Clean Water Act
requirement that “No license or permit
shall be granted until the certification
has been obtained or has been
waived.” Commenters expressed strong
concerns about the validity of such
permits, and stated that Issuance would
constitute a de facto transfer of the
administration of this portion of the 404
permit program to the objecting states.
An attendant concern was that. If states
were unable to respond within the time
specified by the Corps, a waiver would
be presumed, and the nationwide permit
would become effective, whether or not
this would have been the intent of the
state Some commenters suggested that
states would be forced to deny
certifications because of inadequate
time to ensure that proposed activities
would not violate water quality
standards, Most commentere opposed
district engineers having discretionary
authority over conditions to the 401
certification. One commenter believes
this authority conflicts with states’
rights Another suggested that the
proposed action could prod states into
adopting their own wetland laws and
regulatory programs. Several
Commenters supported the proposal,
stating that it was a means of preserving
the utility of the general permit program.
Section 330.9 has been modified to
provide that. if a state denies a required
401 certification for a particular
nationwide permit. then authorization
for all discharges covered by the
nationwide permit within the state is
denied without prejudice until the state
issues an individual or generic water
quality certification or waives its right
to do so We did not adopt the 30 day
waiver period but rather will rely on the
language at §325.2(bj(1) which defines a
reasonable period of time. This section
was also modified to notify the public
that the district engineer will include
conditions of the 401 water quahty
certification as special conditions of the
nationwide permit.
Section 330.9(b): This subsection has
been added to notify the public of the
certification requirements of the various
nationwide permits.
Section 330.la- A number of coastal
states commented that consistency
determination or waiver thereof must
have been obtained prior to the
promulgation of the nationwide permits.
Some commenters asserted that such a
requirement is not a statutory
prerequisite to permit issuance. Others
contend that assuming a waiver of
certification preempts the individual
state’s authority and thwarts
Congressional mtent that the permit
process involves oversight by the state
as well as Federal agencies.
Section 330.10 has been modified to
state that, in certain instances where a
state hae not concurred that a particular
nationwide permit as consistent with Its
coastal zone management plan.
authorization for all activities subject to
such nationwide permit within or
affecting the state coastal zone agency’s
area of authority is denied without
prejudice until the applicant has
furnished to the district engineer a
coastal zone management consistency
determination pursuant to section 307 of
the Coastal Zone Management Act and
the state has either concurred in that
determination or waived its right to do
so.
Section 330. IL’ This subsection was
added to darify existing procedures to
establish a time limit in which a
perinittee may rely on confirmation from
the district engineer that an activity is
covered by a nationwide permit. and to
specify procedures to modify, suspend,
or revoke the permittee’s right to
proceed under the nationwide permit
after the district engineer notified the
permittee that the activity may proceed,
Section 330.72.’ This subsection was
modified to provide a twelve month
transition period for projects which may
be affected by future changes in
nationwide permits. After considering
equity established in reliance on the
nationwide permit and that the public
will in all likelihood receive ample
notice of proposed changes, w believe
that this transition period is both
reasonable and equitable. In addition, if
necessary on a case-by-case basis we
can, even though there is a grandfather
provision, exercise discretionary
authority pursuant to * 330.8 or modify,
suspend or revoke individual
authorization pursuant to 33 R 325.7.
State Certification of Nation wide
Permits
Most states have issued or waived 401
certification and/or Coastal Zone
Management consistency concurrence
for one or more of the twenty
nationwide permits. Many statèVhave
issued a conditional cer fIcation and
some have denied certlflcation/
consistency concurrence. Final action is
still pending in some of the states but is
Imminent. The primary mechanlsn for
keeping the public informed of the status
and/or changes in state certifications or
Coastal Zone Management ixmslstency
concurrence will be public notices
Issued by’the district engineers within
the affected states. The district’
engineers wW be issuing pubbcnodoes
concurrent with the ptahIb ation of these
regulations. Sub.eqsisntnotfäea will be
issued as ehangiisoc r
Listed below are those states which.
as of the date of this printing, have
either denied or conditionally Issued 401
certification and/or coastal zone
management consistency concurrence
for one or more of the nationwide
permits. For more current and detailed
information you should consult with the
appropriate district engineer.
Alaska, California. Connecticut.
Florida, Hawaii, Illinois, Iowa,
Louisiana, Maine, Maryland.
Massachusetts. Michigan. Minnesota.
Mississippi. Missouri, Nebraska, New
Hampshire. New jersey, New York,
North Carolina, Pennsylvania. Rhode
Island, South Carolina. Tennessee,
Vermont, Washington. West Virginia
and Wisconsin.
Determinations under Executive
Order 12291 and the Regulatory
Flexibility Act. The Department of the
Army has determined that the revisions
to these regulations do not contain a
major proposal requiring the preparation
of a regulatory analysis under E.O.
12291. The Department of the Army
certifies, pursuant to section 605(b) of
the Regulatory Flexibility Act of 1980,
that these regulations will not have a
significant economic impact on a
substantial number of entities. -
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41220 Federal Register / VoL 51.
No. 219 I Thursday. November 13. 1988 I Rules and Regu1atioi s
Note L—The term “he” and Its derivative.
ed in these regulations are generic and
,uld be considered as applying to both
us and female.
List of Subjects
33 CFR Part 320
Environmental protection.
Intergovernmental relations. Navigation.
Water pollution control. Waterways.
33 CFR Part 321
Dams, Intergoveriunental relations.
Navigation, Waterways.
33 CFR Port 322
Continental shelf. Electric power.
Navigation. Water pollution control.
Waterways.
33 CFR Port 323
Navigation. Water pollution control.
Waterway..
33 CFR Part 324
Water pollution control.
33 CPR Part 32.5
Administrative practice and
procedure. Intergovernmental relations,
Environmental protection. Navigation.
Water pollution control. Waterways.
33 CFR Part 328
Investigations. Intergovernmental
laUons, Law enforcement. Navigation.
Vater pollution control. Waterway..
33 CALR Part 327
Administrative practice and
procedure. Navigation. Water pollution
control. Waterways.
33 CFR Part 328
Navigation. Water pollution control.
Waterways.
33 CFR Part 3
Waterways.
33 CFR Part 330
Navigation. Water pollution control.
Waterways.
Dated. November 4. 1988.
Robeit K. Diwion.
Assistant Secretary of the Army (Civil
Works
Accordingly. the Department of the
Army Is revising 33 CFR Parts 32O 321.
322, 323, 324. 325,325.327.329, and 330
and adding Part 328 to read as follows:
PART 320—GENERAL REGULATORY
POUCIES
se
szai Purpose end op
.2 Authorities to Issue permits.
20.3 Related laws.
Sec
320.4 General policies for evaluating permit
applications.
Authodty 33 U.S.C. 401 et seq: 33 U.S.C.
1344; 33 U S .C 1413
32O.1 Purpos.andscopS.
(a) Regulatory approach of the Corps
of Engineers. (1) The U S. Army Corps of
Engineers has been involved in
regulating certain activities in the
nation’s waters since 1890. Until 1968.
the primary thrust of the Corps’
regulatory program was the protection
of navigation. A. a result of several new
laws and judicial decisions, the program
has evolved to one involving the
consideration of the full public interest
by balancing the favorable impacts
against the detrimental impacts. This is
known as the “public interest review.”
The program is one which reflects the
national concerns for both the
protection and utilization of Important
resources.
(2) The Corps is a highly decentralized
organization. Most of the authority for
administering the regulatory program
has been delegated to the thirty-six
district engineers and eleven division
engineers. If a district or division
engineer makes a final decision on a
permit application in accordance with
the procedures and authorities
contained in these regulations (33 CFR
Parts 320—330). there is no
administrative appeal of that decision.
(3) The Corps seeks to avoid
unnecessary regulatory controls. The
general permit program described in 33
CFR Parts 325 and 330 is the primary
method of eliminating unnecessary
federal control over activities which do
not justify Individual control or which
are adequately regulated by another
agency.
(4) The Corps is neither a proponent
nor opponent of any permit proposal.
However, the Corps believes that
applicants are due a timely decision.
Reducing unnecessary paperwork and
delays is a continuing Corps goaL
(5) The Corps believes that state and
federal regulatory programs should
complement rather than duplicate one
another. The Corps uses general permits,
joint processing procedures. interagency
review. coordination, and authority
transfer. (where authorized by law) to
reduce duplication.
(8) The Corps has authorized its
district engineers to issue formal
determinations concerning the
applicability of the Clean Water Act or
the Rivera and Ha borsAct of 1899 to
activities or tracts’ pf land and the
applicability of general permits or
statutory exemptions to proposed
activities. A determination pursuant to
this authorization shall constitute a
Corps final agency action. Nothing
contained in this section is intended to
affect any authority EPA has under the
Clean Water AcL
(b) Types of activities regulated. This
Part and the Parts that follow (33 CFR
Parts 321—330) prescribe the statutory
authorities, and general arid special
policies and procedures applicable to
the review of applications for
Department of the Army (DA) permits
for controlling certain activities in
waters of the United States or the
oceans. This part Identifies the various
federal statutes which require that DA
permits be issued before these activities
can be lawfully undertaken; and related
Federal laws and the general policies
applicable to the review of those
activities. Parts 321—324 and 330 address
special policies and procedures
applicable to the following specific
classes of activities:
(1) Dams or dikes in navigable waters
of the United States (Part 321);
(2) Other structures or work including
excavation. dredging, and/or disposal
activities. In navigable waters of the
United States (Part 322);
(3) Activities that alter or modify the
course, condition, location. or capacity
of a navigable water of the United
States (Part 322);
(4) ConstructIon of artificial islands.
installations, and other devices on the
outer continental shelf (Part 322):
(5) Discharges of dredged or fill
material into waters of the United States
(Part 323);
(8) Activities involving the
transportation of dredged material for
the purpose of disposal In ocean waters
(Part 324); and
(7) Nationwide general permits for
certain categories of activities (Part 330).
(c) Forms of authorization. DA
permits for the above described
activities are issued under various forms
of authorization. These include
individual permits that are issued
following a review of individual
applications and general permits that
authorize a category or categories of
activities in specific geographical
regions or nationwide. The term
“general permit” as used in these
regulations (33 CFR Parts 320—330) referS
to both those regional permits issued by
district or division engineers on a
regional basis and to nationwide
permits which are issued by the Chief of
Engineers through publication In the
Federal Register and are applicable
throughout the nation. The nationwide
permits are found in 33 CFR Part 330.11
an activity is covered by a general
permit, an application for a DA permit
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Federal Register I Vol. 51,
does not have to be made. in such cases,
a person must only comply with the
conditions contained in the general
permit to satisfy requirements of law for
aDA permit. In certain cases pro-
notification may be required before
initiating construction. (See 33 CFR
330 7)
(d) General instructions. General
policies for evaluating permit
applications are found in this part.
Special policies that relate to particular
activities are found in Parts 321 through
324. The procedure. for processing
individual permits and general permits
are contained in 33 CFR Part 325. The
terms “navigable waters of the United
States” and “waters of the United
States” are used frequently throughout
these regulations, and it is Important
from the outset that the reader
understand the difference between the
two. “Navigable waters of the United
States” are defined In 33 CFR Part 329.
These are waters that are navigable In
the traditionaJ sense where permits are
required for certain work or structures
pursuant to Sections 9 and 10 of the
Rivers and Harbors Act of 1899,
“Waters of the United States” are
defined in 33 CFR Part 328. These
waters include more than navigable
waters of the United States and are the
waters where permits are required for
the discharge of dredged or fill material
pursuant to Section 404 of the Clean
Water Act.
320.2 Authoiltles to Issu, permits,
(a) Section 9 of the Rivers and
Harbors Act, approved March 3. 1899 (33
U.S C 401) (hereinafter referred to as
section 9), prohibits the construction of
any dam or dike across any navigable
water of the United States in the
absence of Congressional consent and
approval of the plans by the Chief of
Engineers and theSecretary 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 slate if the location
and plans or any modification thereof
are approved by the Chief of Engineers
and by the Secretary of the Army. The
instrument of authorization is
designated a permit (See 33 CFR Part
321 ) 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
Secretary of Transportation under the
Departn ect of Transportation Act of
October 15, 1966 (49 U.S.C. 1155g(6)(A)).
A DA permit pursuant to section 404 of
the Clean Water Act is required for the
discharge of dredged or fill material into
waters of the United States associated
with bridge, and causeways. (See 33
CFR Part 323.)
(b) Section 10 of the Rivers and
Harbors Act approved March 3, 1599. (33
U.S.C. 403) (hereinafter referred to as
section 10), prohIbits the unauthorized
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 excavating from or
depositing of material In such waters, or
the accomplishment of any other work
affecting the course, location, condition,
or capacity of such waters Is unlawful
unless the work has been recommended
by the Chief of Engineers and authorized
by the Secretary of the Army. The
instrument of authorization Is
designated a permit The authority of the
Secretary of the Army to prevent
obstructions to navigation in navigable
waters of the United States was
extended to artifldal Islands,
Installations, and other devices located
on the eeabed, to the seaward limit of
the outer continents] shelf, by section
4(l) of the Outer Continental Shelf Lands
Act of 1953 as amended (43 U.S.C.
1333(e)). (See 33 CPR Part 322.)
(c) Section 11 of the Rivers and
Harbors Act approved March 3, 1899. (33
U.S.C. 404). authorfz s the Secretary of
the Army to establish harbor lines
channeiward of which no pier,,
wharves, bulkheads, or other works may
be extended or deposits made without
approval of the Secretary of the Army.
Effective May 27, 1970, permits for work
shoreward of those lines must be
obtained In accordance with section 10
and, if applicable, section 404 of the
Clean Water Act (see 320.4(o) of this
Part),
(d) Section 13 of the Rivers and
Harbors Act approved March 3, 1899, (33
U.S.C. 407). provides that the Secretary
of the Army, whenever the Chief of
Engineers determines that anchorage
and navigation will not be injured
thereby, may permit the discharge of
refuse into navigable waters, in the
absence of a permit, such discharge of
refuse is prohibited. While the
prohibition of this section. known as the
Refuse Act, Is still hi effect, the permit
authority of the Secretary of the Army
has been superseded by the permit
authority provided the Administrator,
Environmental Protection Agency (EPA),
and the states under sections 402 and -
405 of the Clean Water Act, (33 U.S.C.
1342 and 1345). (See 40 CFR Parts ‘124
and 125.)
(e) Section 14 of the Rivers an4
Harbors Act approved March 3, 1899, (33
U.S.C. 408), provides that the Secretary
of the Army, on the recommendation of
the Chief of Engineers, may grant
permission for the temporary occupation
or use of any sea wall, bulkhead, Jetty,
dike, levee, wharf pier, or other work
bwlt by the United States. This
permission will be granted by an
appropriate real estate ths ument In
accordance with existing real estate
regulations. ‘- .‘- . -
(I) Section 404 of the Clean Water Act
(33 U.S.C. 1344) (hereinafter referred to
as section 404) authorize, the Secretary
of the Army, acting through the Chief of
Engineers, to Issue permits, after notice
and opportuni rp’iblic hearing, for
the discharge of dredged or fllFmaterial
into the water, of the United States at
specified disposal sites, (See 33 R
Part 323.) The selection and use of
disposal sites will be In accordance with
guidelines developed by the
Administrator of A in conjunction’ ‘ ‘
with the Secretary of the Army4nd
published In 40 CFR Part 230. U these
guidelines prohibit the selection or use’,
of a disposal site, the Chief of Engineers
shall consider the . winio Impact .,
navigation and anths, t such.
prohibition In reachhssi osi,
Furthermore, the AdmInthrgioi c an
deny, prohibit, restrict or withdraw the
use of any defined ares as a disposal
site whenever he determine., after
notice and oppociunity for public
hearing and after’eonsujtatfon with the
Secretary of the Army, that the
discharge of such materials Into such
areas will have an unacceptable adverse
effect on municipal water supplies,
shellfish beds and fishery areas.’ -
wildlife, or recreational areu .’(See’40
CFR Part 230). -‘ - “ -, . .“ ::.
(g) Section 103 of the Marine
Protection. Research and Sanctuaries
Act of 1972, as amended (33 U.S.C. 141.3)
(hereinafter referred to as section 203).
authorizes the Secretary of the Army.
acting through the Chief of Engineers, to,
issue permits, after notice and ‘
opportunity for public hearing, for the
transportation of dredged material for
the purpose of disposal in the ocean -
where It is determined that the disposal
will not unreasonably degrade or
endanger human health, welfare, or
amenities, or the marine environmpnl,
ecological systems, or economic - -
potentialities, The selection of disposal
sites will be In accordance with criteria
developed by the Administrator of the
EPA in consultation with the Secretary
of the Army and published in 40 CFR
Parts 220-229. However, similar to the
EPA Administrator’s limiting authority
cited in paragraph (I) of this section. the
Administrator can prevent the Issuance
of a permit under this authority Ifhe -
No. 219 I Thursday, November 13, 1986 I Rules and Beg1tlRtlona . .4122.j..
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4i22Z - Federal Register / Vol. 51. No. 219 I Thursday. November 13. 1986 / Rules and ReguJationS
finds that the disposal of the material
will result in an unacceptable adverse
impact on municipal water supplies.-
shellfish beds, wildlife, fisheries, or
recreational areas. (See 33 CFR Part -
324).
32O.3 Rusted laws.
(a) Section 401 of the Clean Water Act
(33 U.S.C 1341) requIres any applicant
for a federal license or permit to conduct
any activfty that may result in a
discharge of a pollutant Into waters of
the United States to obtain a
certification from the State In which the
discharge originates or would originate.
or. If appropriate, from the interstate
water pollution control agency having
jurisdiction over the effected waters at
the point where the discharge originates
or would originate, that the discharge
will comply with the applicable effluent
limitations and water quality standards.
A certification obtained for the
construction of any facility must also
pertain to the subsequent operation of
the facility.
(b) Section 307(c) of the Coastal Zone
Management Act of 1972. as amended
(16 U.S.C 1456(c)), requIres federal
agencies conducting activities, including
development projects. directly affecting
a state’s coastal zone, to comply to the
maximum extent practicable with an
approved state coastal zone
management program. Indian tribes
dolng.work on federal lands will be
treated u a ledez l agency for the
purpose of.the Coastal Zone
Management Act. The Act also requires
any non-federal applicant for a federal
license 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’. coastal zone
management program. Generally, no
permit will be issued until the state has
concurred with the non-federal
applicant’s certification. This provision
becomes effective upon approval by the
Secretary of Commerce of the state’s
coastal zone management program. (See
15 CFR Part 930.)
(c) Section 302 of the Marine
Protection. Research and Sanctuaries
Act of 1972. as amended (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, of the Great Lakes and
their connecting waters, or of other
coastal waters which he determines
necessary for the purpose of preserving
or restorlng,such areas for their
conservation. recreational, ecological, or
aesthetic values. After designating such
an area, the Secretary of Commerce -
shall issue regulations to control any
activities within the area. Activities ui
the sanctuary authorized under other
authorities are valid only If the
Secretary of Commerce certifies that the
activities are consistent with the
purposes of Title 111 of the Act and can
be carried out within the regulations for
the sanctuary.
(d) The National Environmental Policy
Act of 1969 (42 U.S.C 4321-4347)
dedares the national policy to
encourage a productive and enjoyable . -
harmony between man and his
environment. Section 102 of that Act
directs that “to the fullest extent
possible: (1) The policies, regulations.
and public laws of the United States
shall be interpreted and administered in
accordance with the policies set forth in
this Act, and (2) all agencies of the
Federal Government shall’’ • insure
that presently unquantifled
environmental amenities and values
may be given appropriate consideration
in decision-making along with economic
and technical considerations’ • “. (See
Appendix B of 33 CFR Part 325.)
(e) The Fish and Wildlife Act of 1956
(18 U.S.C. 742a, et seq.), the Migratory
Marine Game-Fish Act (18 U.S C. 760o-
760$). the Fish and Wildlife
Coordination Act (18 U.S.C 681-806c)
and other acts express the will of
Congress to protect the quality of the
aquatic environment as it affects the
conservation. improvement and
enjoyment of fish and wildlife resources.
Reorganization Plan No.4 of 1970
transferred certain functions. including
certain fish and wildlife-water resources
coordination responsibilities, from the
Secretary of the Interior to the Secretary
of Commerce. Under the Fish and
Wildlife Coordination Act and
Reorganization Plan Nn. 4, any federal
agency that proposes to control or
modify any body of water must first
consult with the United States Fish and
Wildlife Service or the National Marine
Fisheries Service, as appropriate, and
with the head of the appropriate state
agency exercising administration over
the wildlife resources of the affected
state.
(I) The Federal Power Act of 1920 (16
U.S.C lOla et seq.), as amended.
authorizes the Federal Energy
Regulatory Agency (FERC) to issue
licenses for the construction and the
operation and maintenance of dams,
water conduits, reservoirs, power
houses, trnn misslon lines. and other
physical sb ictures of a hydro-power
pro ject.. However, where such structures
will affect the navigable capacity of any
navigable water of the United States (as
defined In 16 U.S C. 796), the plans for
the dam or other physical structures
affecting navigation must be approved
by the Chief of Engineers and the -
Secretary of the Army. in such cases.
the interests of navigation should
normally be protected by a DA
recommendation to FERC for the
inclusion of appropriate provisioflS In
the FERC license rather than the
issuance of a separate DA permit under
33 U.S C. 401 et seq. As to any other
activities in navigable waters not
constituting construction and the
operation and maintenance of physical
structures licensed by FERC under the
Federal Power Act of 1920. as amended.
the provisions of 33 U.S.C 401 et seq
remain fully applicable. In all cases
involving the discharge of dredged or fill
material into waters of the United States
or the transportation of dredged
material for the purpose of disposal In
ocean waters. section 404 or section 103
will be applicable.
(g) The National Historic Preservation
Act of 1966 (16 U.S.C 470) created the
Advisory Council on Historic
Preservation to advise the President and
Congress on matters involving historic
preservation. In performing its function
the Council is authorized to review and
comment upon activities licensed by the
Federal Government which will have an
effect upon properties listed to the
National Register of Historic Places. or
eligible for such listing. The concern of
Congress for the preservation of
significant historical sites is also
expressed In the Preservation of
Historical and Archeological Data Act
of 1974 (16 U.S.C 469 et seq.). which
amends the Act of June 27, 1960. By this
Act, whenever a federal construction
project or federally licensed project,
activity, or program alters any terrain
such that significant historical or
archeological data is threatened. the
Secretary of the Interior may take action
necessary to recover and preserve the
data prior to the commencement of the
project.
(h) The interstate Land Sales Full
Disclosure Act (15 U.S.C 1701 et seq.)
prohibits any developer oragent [ rota
selling or leasing any lot in a
subdivision (as defined In 15 U.S.C
1701(3)) unless the purchaser is
furnished in advance a printed property
report containing information which the
Secretary of Housing and Urban
Development may. by rules or
regulations. reqwre for the protection of
purchasers. In the event the lot in
question is part of a project that reqw
DA authorization, the property report i
required by Housing and Urban )
Development regulation to state whetb
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Federal Register / Vol. 51. No. 219 I Thursday. Novemlrer 13, 986 / Rules and Regulations
41223
or not a permit for the development has
been applied for, issued, or denied by
the Corps of Engineers under section 10
or section 404. The property report is
also required to state whether or not any
enforcement action has been taken as a
consequence of non-application for or
denial of such permit.
(i) The Endangered Species Act (16
U.S.C. 1531 et seq.) declares the
intention of the Congress to conserve
threatened and endangered species and
the ecosystems on which those species
depend. The Act requires that federal
agencies. in consultation with the U.S.
Fish and Wildlife Service and the
National Marine Fisheries Service, use
their authorities in furtherance of its
purposes by carrying out programs for
the conservation of endangered or
threatened species. end by taking such
action necessary to insure that any
action authorized, funded, or camed out
by the Agency is not likely to jeopardize
the continued existence of such
endangered or threatened species or
result in the destruction or adverse
modification of habitat of such species
which Is determined by the Secretary of
the Interior or Commerce, as
appropriate, to be cntlcal.(See 50 CFR
Part 17 and 50 CFR Part 402.)
(j) The Deepwater Port Act of 1974 (33
U.S.C. 1501 et seq.) prohibits the
ownership, construction, or operation of
a deepwater port beyond the territorial
seas without a license Issued by the
Secretary of Transportation. The
Secretary of Transportation may Issue
such a license to an applicant if he
determines, among other things, that the
construction and operation of the
deepwater port is In the national
interest and consistent with national
security and other national policy goals
and objectives. An application fora
deepwaler port license constitutes an
application for all federal authorizations
required for the ownership. construction,
and operation of a deepwater port.
including applications for section 10,
section 404 and section 103 permits
which may also be required pursuant to
the authorities listed In section 320.2 and
the policies specified in section 320.4 of
this Part.
(k) The Marine Mammal Protection
Act of 1972 (16 U.S.C. 1361 et seq.)
expresses the intent of Congress that
marine mammals be protected and
encouraged to develop in order to
maintain the health and stability of the
marine ecosystem. The Act unposes a
perpetual moratorium on the
harassment, hunting. capturing, or killing
of marine mammals and on the
tmportation of marine mammals and
marine mammal’products without a
permit from either the Secretary of the
Interior or the Secretary of Commerce,
depending upon the species of marine
mammal involved. Such permits may be
issued only for purposes of scientific
research and for public display if the
purpose is consistent with the policies of
the Act. The appropriate Secretary is
also empowered in certain restricted
circumstances to waive the
requirements of the Act.
(1) Section 7(a) of the Wild and Scenic
Rivers Act (16 U.S.C. 1278 et seq.)
provides that no department or agency
of the United States shall assist by loan,
grant, license, or otherwise in the
construction of any water resources
project that would have a direct and
adverse effect on the values for which
such river was established, as
determined by the Secretary charged
with its administration.
(m) The Ocean Thermal Energy
Conversion Act of 1980, (42 U.S.C.
section 9101 c i seq ) establishes a
licensing regime administered by the
Administrator of NOAA for the
ownership, construction, location, and
operation of ocean thermal energy
conversion (OTEC) facilities and
plantship .. An application for an OTEC
license filed with the Administrator
constitutes an application for all federal
authorizations required for ownership.
construction. location, and operation of
an OTEC facility or plantehip, except for
certain activities within the jurisdiction
of the Coast Guard. This Includes
applications for section 10. section 404.
section 103 and other DA authorizations
which may be required.
(n) Seci ion 402 of the Clean Water Act
authorizes EPA to issue permits under
procedures established to implement the
National Pollutant Discharge
Elimination System (NPDES) program.
The administration of this program can
be, and In most cases has been,
delegated to individual states. Section
402(b)(6) states that no NPDES permit
will be issued If the Chief of Engineers.
acting for the Secretary of the Army and
after consulting with the U.S. Coast
Guard, determines that navigation and
anchorage in any navigable water will
be substantially impaired as a result of a
proposed activity.
(o) The National Fishing Enhancement
Act of 1984 (Pub. L. 98-023) provides for
the development of a National Artificial
Reef Plan to promote and facilitate
responsible and effective efforts to
establish artificial reefs. The Act
establishes procedures to be followed
by the Corps in issuing DA permits for
artificial reefs. The Act also establishes
the liability of the permnittee and the -
United States. The Act further creates a
civil penalty for violation of any
provision of a permit issued for an
artificial reef.
{ 320.4 General policies for .valustlng
permft applications.
The following policies shall be
applicable to the review of all
applications for DA permits. Additional
policies specifically applicable to
certain types of activities are identified
In 33 CFR Parts 321-324.
(a) Public Interest Review. (1) The
decision whether to issue a permit will
be based on an evaluation of the
probable Impacts, including cumulative
impacts, of the proposed activity and Its
intended use on the public interest.
Evaluation of the probable impact which
the proposed activity may have on the
public interest requires a careful
weighing of all those factors which’
become relevant in each particular case.
The benefits which reasonably may be
expected to accrue from the proposal
must be balanced against its reasonably
foreseeable detriments. The decision
whether to authorize a proposal, and if
so. theconditloni underwhlch Itwill be
allowed to occur, are therefore
determined by the outcome of this -
general balancing process . That dedilon
should reflect the national concern for
both protection and utilization of
Important resources. All factors which’
may be relevant to the proposal must be
considered including the cumulative
effects thereof among those are
conservation, economics, aesthetics,
general environmental concerns,
wetlands, historic properties, fish and
wildlife ,yalues, flood hazards,,.
floodplala values. land use, navigation,
shore erosion and accretion, recreation,
water supply sad conservation, water
quality, energy needs. safety, food sad
fiber production. mineral needs.
considerations of property ownership
and, in general, the needs and welfare of
the people. For activities involvIng 404
discharges, a permit will be denied if the
discharge that would be authorized by
such permit would not comply with the
Environmental Protection Agency’s
404(b)(1) guidelines. Subject to the
preceding sentence and any other
applicable guidelines and criteria (see
* * 320.2 and 320.3), a permit will be
granted unless the district engineer
determines that It would be contrary to
the public interest
(2) The following general criteria will
be considered in the evaluation of every
applicationi
(i) The relative extent of the public
and private need for the proposed
structure or worlu
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41224 Federal Register / Vol. 51, No. 219 I Thursday. November 13, 1986 / Rules and Regulations
(ii) Where there are unresolved
nflicts as to resOUrce use, the
icticability of using reasonable
emative locations and methods to
accomplish the objective of the
proposed structure or work; and
(iii) The extent and permanence of the
beneficial and/or detrimental effects
which the proposed structure or work is
likely to have on the public and private
uses to which the area is suited.
(3) The specific weight of each factor
is determined by Its Importance and
relevance to the particular proposaL
Accordingly. how important a factor is
and how much consideration It deserves
will vary with each proposal. A specific
factor may be given great weight on one
proposal. while It may not be present or
as important on another. However, full
consideration and appropriate weight
will be given to all comments’ including
those of federaL state. and local
agencies. and other experts on matters
within thefr expertise.
(b) Effect on wello.nds. (1) Most
wetlands constitute a productive and
valuable public resource, the
unnecessary alteration or destruction of
which should be discouraged as
contrary to the public Interest. For
projects to be unds! l pr partially or
entirely ft.mdedbys ’fbdIt I.’state. Or
local agency, additional requirements on
wetlands oon.4’4sraUW1 are stated In
Executive Orde g9O dated 24 May
1977.
(2) WetI Ori to perform
functions Importan O the public
interest tnclude
(I) Wetlands which serve significant
natural blolcglcal f ctIons’ Including
food chainprodu On. general habitat
and nesting. spawning, rearing and
resting sites for aquatic or land species:
(ii) Wetlands set aside for study of the
aquatic environment or as sanctuaries
or refuges;
(II I) Wetlands the destruction or
alteration of which would affect
detrimentallY natural drainage
characteristics, sedimentation patterns.
salinity distribution, flushing
characteristIcs. current patterns, or
other environmental characteristics:
(iv) Wetlands which are significant In
shielding other areas from wave action,
erosion. or storm damage. Such
wetlands are often associated with
barrier beaches. islands. reefs and bars
(v) Wetlands which serve as valuable
storage areas for storm and flood
waters;
(vi) Wetlands which axe ground water
discharge areas that maintain minimum
baseflowe Important to aquatic
resources and those which are prima
natural recharge areas;
(vu) Wetlands which serve significant
water purification functions; and
(vui) Wetlands which are unique in
nature or scarce in quantity to the region
or local area.
(3) Although a particular alteration of
a wetland may constitute a minor
change. the cumulative effect of
numerous piecemeal changes can result
In a major impairment of wetland
resources. Thus, the particular wetland
site for which an application is made
will be evaluated with the recognition
that it may be part of a complete and
interrelated wetland area. In addition.
the district engineer may undertake,
where appropriate, reviews of particular
wetland areas in consultation with the
Regional Director of the LI. S. Fish and
Wildlife Service, the Regional Director
of the National Marine Fisheries Service
of the National Oceanic and
Atmospheric Administration, the
Regional Administrator of the
Environmental Protection Agency, the
local representative of the Soil
Conservation Service of the Department
of Agriculture, and the head of the
appropriate state agency to assess the
cumulative effect of activities In such
areas.
(4) No permit will be granted which
involves the alteration of wetlands
identified as important by paragraph
(b)(2) of this section or because of
provisions of paragraph (bli3), of this
section unless the district engineer
concludes, on the basis of the analysis
required in paragraph (a) of this section.
that the benefits of the proposed
alteration outweigh the damage to the
wetlands resource. In evaluating
w iether a particular discharge activity
should be permitted, the district
engineer shail apply the section
404(bfll) guidelines (40 CFR Part 230.
10(a) (1), (2), (3)).
(5) In addition to the policies
expressed in this subpart. the
Congressional policy expressed In the
Estuary Protection Act Pub. L. 90-454.
and state regulatory laws or programs
for classification and protection of
wetlands will be considered.
(c) Fish and wildlife. In accordance
with the Fish and Wildlife Coordination
Act (paragraph 320.3(e) of this section)
district engineers will consult with the
Regional Director, U.S. Fish and Wildlife
Service, the Regional Director. National
Marine Fisheries Service, and the head
of the agency responsible for fish and
wildlife for the state in which work is to
be performed. with a view to the
conservation of wildlife resources by
prevention of their direct and indirect
loss and damage due to the activity
proposed in a permit application. The
Army will give full consideration to the.
views of those agencies on fish and
wildlife matters in deciding on the
issuance, denial, or conditioning of
individual or general permits.
(d) Water quality Applications for
permits for activities which may
adversely affect the quality of waters of
the United States will be evaluated for
compliance with applicable effluent
limitations and water quality standards.
during the construction and subsequent
operation of the proposed activity. The
evaluation should include the
consideration of both point and non-
point sources of pollution. It should be
noted, however, that the Clean Water
Act assigns responsibility for control of
non-point sources of pollution to the
states. Certification of compliance with
applicable effluent limitations and water
quality standards required under
provisions of section 401 of the Clean
Water Act will be considered conclusive
with respect to water quality
considerations unless the Regional
Administrator. Environmental Protection
Agency (EPA), advises of other water
quality aspects to be taken into
consideration.
(e) Historic cultural, scenic. and
recreational values. Applications for DA
permits may Involve areas which
possess recognized historic, cultural,
scenic, conservation, recreational or
similar values. Full evajuatlon of the
general public Interest requires that due
consideration be given to the effect
which the proposed structure or activity
may have on values such as those
associated with wild and scenic rivers.
historic properties and National
Landmarks. National River., National
Wilderness Areas. National Seashores,
National Recreation Areas, National
Lakeshores. National Parks. National
Monuments, estuarine and marine
sanctuaries, archeological resources.
including Indian religious or cultural
sites. and such other areas as may be
established under federal or state law
for similar and related purposes.
Recognition of those values is often
reflected by state. regional. or local land
use classificatIons, or by similar federal
controls or policies. Action on permit
applications should, Insofar as possible.
be consistent with, and avoid significant
adverse effects on the values or
purposes for which those classifications.
controls. or policies were established.
(f) Effects on limits of the territorial
sea. Structures or work affecting coastal
waters may modify the coast line or
base line from which the territorial sea
is measured for purposes of the
Submerged Lands Act and international
law. Generally. the coast line or base
line is the line of ordinary low water oUr ’
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Federal Register / Vol. 51,
No. 219 I Thursday, November 13, 1986 I Rules and Regulations 41225
the mainland, however, there are
exceptions where there are islands or
lowtide elevations offshore (the
Submerged Lands.Act, 43 U.s.c. 1301(a)
and United States v California, 381
U S C. 139 (1965). 382 U.S. 448 (1966)).
Applications for structures or work
affecting coastal waters will therefore
be reviewed specifically to determine
whether the coast line or base line might
be altered. If it is determined that such a
change might occur, coordination with
the Attorney General and the Solicitor
of the Department of the Interior is
required before final action Is taken. The
district engineer will submit a
description of the proposed work and a
copy of the plans to the Solicitor.
Department of the Interior, Washington,
DC 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 administrative record
of the application. After completion of
standard processing procedures, the
record will be forwarded to the Chief of
Engineers. The decision on the
application will be made by the
Secretary of the Army after coordination
with the Attorney General.
(g) Consideration of property
ownership. Authorization of work or
structures by DA does not convey a
property right, nor authonze any injury
to property or invasion of other rights.
(1) An inherent aspect of property
ownership is a right to reasonable
pnvate use. However, this right is
subject to the rights and Interests of the
public in the navigable and other waters
of the United States, including the
federal navigation servitude and federal
regulation for environmental protection.
(2) Because a landowner has the
general right to protect property from
erosion, applications to erect protective
structures will usually receive favorable
consideration. However, if the
protective structure may cause damage
to the property of others, adversely
affect public health and safety,
adversely impact floodplain or wetland
values, or otherwise appears contrary to
the public interest, 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 undue use
of government resources.
(3) A ripanan landowner’s general
right of access to navigable waters of
the United States is subject to the
similar rights of access held by nearby
nparian landowners and to the general
public’s right of navigation on the water
surface. In the case of proposals which -
create undue interference with access
to. or use of, navigable waters, the
authorization will generally be denied
(4) Where it is found that the work for
which a permit is desired is in navigable
waters of the United States (see 33 CFR
Part 329) and may interfere with en
authorized federal project, the applicant
should be apprised in wnting of the fact
and of the possibility that a federal
project which may be constructed in the
vicinity of the proposed work might
necessitate its removal or
reconstruction. The applicant should
also be informed that the United States
will in no case be liable for any damage
or injury to the structures or work
authorized by Sections 9 or 10 of the
Rivers and Harbors Act of 1899 or by
section 404 of the Clean Water Act
which may be caused by, or result from,
future operations undertaken by the
Government for the conservation or
improvement of navigation or for other
purposes, and no claims or right to
compensation will accrue from any such
damage.
(5) Proposed activities in the area of a
federal project which exists or Is under
construction will be evaluated to Insure
that they are compatible with the
purposes of the project.
(8) A DA permit does not convey any
property rights, either In real estate or
material, or any exclusive privileges.
Furthermore, a DA permit does not
authorize any injury to property or
invasion of rights or any infringement of
Federal, state or local laws or
regulations. The applicant’s signature on
an application is an affirmation that the
applicant possesses or will possess the
requisite property interest to undertake
the activity proposed in the application.
The district engineer will not enter into
disputes but will remind the applicant of
the above. The dispute over property
ownership will not be a factor in the
Corps public interest decision.
(h) Activities effecting coastal zones.
Application. for DA permits for
activities affecting the coastal zones of
those states having a coastal zone
management program approved by the
Secretary of Commerce will be
evaluated with respect to compliance
with that program. No permit will be
issued to a non-federal applicant until
certification has been provided that the
proposed activity complies with the
coastal zone management program and
the appropriate state agency has
concurred with the certification or has
waived its right to do so. However, a
permit may be issued to a non-federal
applicant If the Secretary of Commerce,
on his own initiative or upon appeal by
the applicant, finds that the proposed
activity Is consistent with the objectives
of the Coastal Zone Management Act of
1972 or is otherwise necessary in the
interest of national security Federal
agency and Indian tribe applicants for
DA permits are responsible for
complying with the Coastal Zone
Management Act’s directives for
assuring that their activities directly
affecting the coastal zone are-consistent.
to the maximum extent practicable, with
approved state coastal zone
management programs.
(i) Activities in marine sanctuaries
Applications for DA authorization for
activities in a marine sanctuary
established by the Secretary of
Commerce under authority of section
302 of the Marine Protection, R.search
and Sanctuanee Act of 1972, aa
amended, will be evaluated for Impact
on the marine sanctuary, No permit will
be Issued until the applicant provide, a
certification from the Secretary of
Commerce that the proposed activity Is
consistent with the purposes of Title III
of the Marine Protection, Research and
Sanctuaries Act of 1972, as amended.
and can be carried out within the
regulations promulgated by the
Secretary of Commerce to control
activities within the marine sanctuary.
U) Other Federal. state or local
requirements, (1) Processing of an
application for. DA permit normally
will proceed concurrently with the
processing of other required Federal.
state, and/or local authorizations or
certifications. Final action on the DA
permit will normally not be delayed
pending action by another FederaL state
or local agency (See 33 CFR 325.2 (d)(4fl.
However, where the required Federal.
state and/or local authorization and/or
certification has been denied for.
activities which also require a
Departmaitt of the Army permit before
final action has been taken on the Army
permit application, the district engineer
will, after considering the likelihood of
subsequent approval of the other
authorization and/or certification and
the time and effort remaining to
complete processing the Army permit
application. either immediately deny the
Army permit without prejudice or
continue processing the application to a
conclusion. 11 the district engineer
continues processing the application, he
will conclude by either denying the
permit as contrary to the public interest,
or denying It without prejudice
indicating that except for the other
Federal, state or local denial the Army
permit could, under appropriate
conditions, be Issued. Denial without
prejudice means that there I . no
prejudice to the right of the applicant to
reinstate processing of the Army permit
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41226 Federal Register / Vol. 51. No. 219 / Thursday, November 13, 1966 I Rules and Re8ulatlons
application if subsequent approval is
received from the appropriate Federal.
state and/or Local agency on a
previously denied authorization and/or
certification. Even if official certification
and/or authorization Is not required by
state or federal law, but a state.
regional. or local agency having
jurisdiction or interest over the
particular activity comments on the
application, due consideration shall be
given to those official views as a
reflection of local factors of the public
interest.
(2) The primary responsibility for
determining zoning and land use matters
rests with state, local and tribal
governments. The district engineer will
normally accept decisions by such
governments on those matters unless
there are significant Issues of ovemding
national importance. Such issues would
Include but are not necessarily limited
to national security, navigation, national
economlã development, water quality.
preservation of special aquatic areas.
Including wetlands,’with significant
interstate Importance. anct national
energy needs. Whether. lactot’ has
overriding Importance will depend on
the degree of impact in an individual
case. —
(3) A j opoeed CfivIty may result in
conflicting comments from several
agencies within the seine state. Where a
state has not designated a single
responsible coordinating agency. district
engineers will ask the Governor to
express hi. views or to designate one
state agency to represent the official
state position In the particular case.
(4) In the absence of overriding
national factors of the public interest
that may be revealed during the
evaluation of the permit application. a
permIt will generally be issued following
receipt of a favorable state
determination provided the concerns.
policies. goals. and requirements as
expressed in 33 CFR Parts 320—324. and
the applicable statutes have been
considered and followed’ e g . the
National Environmental Policy Act; the
Fish and Wildlife Coordination Act the
Historical and Archeological
Preservation Act, the National Historic
Preservation Act the Endangered
Species Act the Coastal Zone
Management Act the Marine Protection.
Research and Sanctuaries Act of 1972.
as amended the Clean Water act, the
Archeological Resources Act. and the
American Indian Religious Freedom Act.
Similarly. a permit will generally be
issued for Federal and Federally-
authorized activilies another federal
agency’s determination to proceed is
entitled to substantial consideration in
the Corps’ public interest review
(5) Where general permits to avoid
duplication are not practical. district
engineers shall develop joint procedures
with those local, state. and other
Federal agencies having ongoing permit
programs for activities also regulated by
the Department of the Army In such
cases. applications for DA permits may
be processed jointly with the state or
other federal applications to an
independent conclusion and decision by.
the district engineer and the appropriate
Federal or state agency (See 33 CFR
325 2(e).)
(6) The district engineer shall develop
operating procedures for establishing
official communications with Indian
Tribes within the district. The
procedures shall provide for
appointment of a tribal representative
who will receive all pertinent public
notices. and respond to such notices
with the official tribal position on the
proposed activity. This procedure shall
apply only to those tribes which accept
this option Any adopted operating
procedures shall be distributed by
public notice to inform the tribes of this
option.
(k) Safety of impoundment strvcturer.
To insure that all impoundment
structures are designed for safety, non-
Federal applicants may be required to
demonstrate that the structures comply
with established state dam safety
criteria or have been designed by
qualified persons and. in appropriate
cases, that the design has been
Independently reviewed (and modified
as the review would indicate) by
similarly qualified persona.
(I) Floodplain management. (1)
Floodplains possess significant natural
values and carry out numerous functions
important to the public Interest. These
include:
(i) Water resources values (natural
moderation of floods, water quality
maintenance, and groundwater
recharge);
(ii) Living resource values (fish.
wildlife, and plant resources);
(in) Cultural resource values (open
space, natural beauty. scientific study,
outdoor education, and recreation); and
(iv) Cultivated resource values
(agriculture. aquaculture. and forestry).
(2) Although a particular alteration to
s floodplain may constitute a minor
changes the cumulative impact of such
changes may result ins significant
degradation of floodplain values and
functions and in increased potential for
harm to upstream and downstream
activities. In accordance with the
requirements of Executive Order 11988.
- district engineers, as part of their public
interest review, should avoid to the
extent practicable. long and short term
significant adverse impacts associated
with the occupancy and iiodification of
floodplains. as well as the direct and
indirect support of floodplain
development whenever there is a
practicable alternative For those
activities which in the public interest
must occur in or impact upon
floodplains. the district engineer sh8 ll
ensure. to the maximum extent
practicable, that the impacts of potential
flooding on human health, safety, and
welfare are minimized, the risks of flood
losses are minimized, and, whenever
practicable the natural and beneficial
values served by floodplains are
restored and preserved.
(3) In accordance with Executive
Order 11988. the district engineer should
avoid authorizing floodplain
developments whenever prai.ticable
alternatives exist outside the floodplain
If there are no such practicable
alternatives, the district engineer shall
consider, as a means of mitigation.
alternatives within the floodplain which
will lessen any significant adverse
impact to the floodplain.
(m) Water supply and conservation
Water is an essential resource. basic to
human survival, economic growth. and
the natural environment. Water
conservation requires the efficient use of
water resources in all actions which
involve the significant use of water or
that significantly affect the availability
of water for alternative uses including
opportunities to reduce demand and
improve efficiency in order to minimize
new supply requirements. Actions
affecting water quantities are subject to
Congressional policy as stated in section
101(g) of the Clean Water Act which
provides that the authority of states to
allocate water quantities shall not be
superseded. abrogated. or otherwise
impaired.
(n) Energy conservation and
development Energy conservation and
development are major national
objectives. District engineers will give
high priority to the processing v,f permit
actions involving energy projects.
(o) Nai gation. (1) Section Ii of the
Rivers and Harbors Act of 1899
authorized establishment of harbor lines
shoreward of which n individual
permits were required. Because harbor
lutes were established on the basis of
navigation impacts only. the Corps of
Engineers published a regulation on 27
May 1970 (33 CFR 209 150) which
declared that permits would thereafter
be required for activities shoreward of
the harbor lines. Review of applications
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Federal Register / Vol. 51, No 219 / Thursday, No ernber 13, 1986 / Rules and Regulations
41227
would be based on a full public interest
evaluation and harbor lines would serve
as guidance for assessing navigation
impacts. Accordingly, activities
constructed shoreward of harbor lines
prior to 27 May 1970 do not require
specific authorization.
(2) The policy of considering harbor
lines as guidance for assessing impacts
on navigation continues.
(3) Protection of navigation in all
navigable waters of the United States
continues to be a primary concern of the
federal government.
(4) District engineers should protect
navigational and anchorage interests in
connection with the NPDES program by
recommending to EPA or to the state, if
the program has been dalegated, that a
permit be denied unless appropriate
conditions can be included to avoid any
substantial impairment of navigation
and anchorage.
(p) Envzmnmentoi benefits. Some
activities that require Department of the
Army permits result in beneficial effects
to the quality of the environment. The
district engineer will weigh these
benefits as well as environmental
detriments along with other factors of
the public interest.
(q) Economics. When private
enterprise makes application for a
permit. it will generally be assumed that
appropriate economic evaluations have
been completed, the proposal is
economicdlly viable, and is needed in
the market place. Howe er, the district
engineer in appropriate cases. may
make an indepencient review of the need
for the project from the perspective of
the overall public interest The economic
benefits of many projects are important
to the local community and contribute to
needed improvements in the local
econom 1 c base, affecting such factors as
employment, tax revenues, community
cohesion, community services, and
property values Many projects also
contribute to the National Economic
Devf’lopment (NED). (i e., the increase in
the net value of the national output of
goods and services)
(r) A4’ zigobon ‘ (1) Mtttg.dion is an
important aspect of the review and
b . .iocing process on many Department
of ti,e Army permit applications
Consideration of mitigation will occur
throughout the permit application
This is a encrai stal. menl of m lti$at lon policy
which applies to all Corps of Engineers regulatory
autnonties covered by these regulations (3J CFR
Parts 320—3301 iii. not a substitute for the
mitigation reqwrements necessary to ensure that a
permit action under section 404 of the aean Water
Act complie, with the section 404(bfli) Guidelines,
There is cw endy an hiteragency Working Group
formed to develop guidance on implementing
mitigation requirements of the Guidelines
review process and includes avoiding.
minimizing, rectifying, reducing. or
compensating for resource losses
Losses will be avoided to the extent
practicable. Compensation may occur
on-site or at an off-site location
Mitigation requirements generally fall
into three categories.
(i) Project modifications to minimize
adverse project impacts should be
discussed with the applicant at pre-
application meetings and during
application processing. As a result of
these discussions and as the district
engineer’s evaluation proceeds, the
district engineer may require minor
project modifications. Minor project
modifications are those that are
considered feasible (cost.
constructability, etc.) to the applicant
and that. If adopted, will result in a
project that generally meets the
applicant’s purpose and need. Such
modifications can Include reductions In
scope and size; changes in construction
methods, materials or timing. and
operation and maIntenance practices or
other similar modifications that reflect a
sensitivity to environmental quality
within the context of the work proposed.
For example, erosion control feature.
could be required on a fill project to
reduce sedimentation impacts or a pier
could be reoriented to minimize
navigational problems even though
those projects may satisfy all legal
requirements (paragraph (r)(1)(il) of this
section) and the public interest review
test (pdragraph (r)(1)(iii) of this section)
without such modifications.
(ii) rurther mitigation measures may
be required to satisfy legal
requirements. For Section 404
applications, mitigation shall be
required to ensure that the project
complies with the 404(b)(1) Guidelines
Some mitigation measures are
enumerated at 40 CFR 23070 through 40
CFR 23077 (Subpart H of the 404(b)(1)
Guidelines)
(iii) Mitigation measures in addition to
those undcr paragraphs (r)(1) (i) and (ii)
of this section may be required as a
result of the public interest review
procecs (See 33 CFR 325.4(a))
Mitigation should be developed and
Incorpor.4ted within the public interest
review process to the extent that the
mitigation is found by the district
engineer to be reasonable and justified.
Only those measures required to ensure
that the project is not contrary to the
public interest may be required under
this subparagraph.
(2) All compensatory mitigation will
be for signlficanl resource losses whicb
are specifically identifiable, reasonably
likely to occur, and of importance to the
humdn or aquatic environment. Also, all
mitigation will be directly related to the
impacts of the proposal. appropriate to
the scope and degree of those impacts.
and reasonably enforceable. District
engineers will require all forms of
mitigation, including compensatory
mitigation, only as provided in
paragraphs (r)(1) (i) through (iii) of this
section. Additional mitigation may be
added at the applicants’ request.
PART 321—PERMITS FOR DAMS AND
DIKES IN NAVIGABLE WATERS OF
ThE UNITED STATES
Se
321.1 General.
321.2 DefinitIons.
321.3 SpecIal policies and procedures.
Authoiity 33 U.S.C. 401.
*321.1 G.ns,’aI,
This regulation presaibes, In addition
to the enaral policies of 33 C ’R Part 320
and procedures of 33 CFR Part 325. those
special policies, practices, and
procedures to be followed by the Corps
of Engineers In connection with the
review of application. for Department of
the Army IDA) permit. to authorize the
construction of a dike or darn Ins
navigable water of the United States
pursuant to section 9 of the Rivers and’
Harbors Act of 1899 (33 U.S.C. 401). See
33 CFR 320.2(a). Dams and dikes in’
navigable waters of the United States
also require DA permits tinder section
404 of the Clean Water Act, as amended
(33 U S.C. 1344). ApplIcants for DA
permits under this Part should also refer
to 33 CFRParI 323 to satisfy the
requirements of section 404.
*321.2 DefinitIons.
For the purpose of this regulation, the
following terms are def’med
(a) The term “navigable waters of the
United States” means those waters of
the United States that are subject to the
ebb and flow of the tide shoreward to
the mean high water mark and/or aie
presently used, or have been used In the
past, or may be susceptible to use to
transport interstate or foreign
commerce. See 33 CFR Part 329 for a
more complete definition of this term.
(b) The term “dike or da i” means, for
the purposes of section 9.iny
impoundment structure that completely
spans a navigable water of the United
States and that may obstruct interstate
waterborne commerce. The term does
not include a weir. Weiss are regulated
pursuant to section 10 of the Rivers and
Harbors Act of 1899. (See 33 CFR Part
322.)
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41228 Federal Register I Vol. 51. No 219 / Thursday, November 13, 1986 I Rules and Regulations
321.3. Speclai p’ d procedures.
The following additional special
policies and procedures8bell be
applicable to the evaluation of permit
8ppliCatlOns under this regulation:
(a) The Assistant Secretary of the
Army (Civil Works) will decide whether
DA authorization for a dam or dike in an
interstate navigable water of the United
States will be issued, since this
authority has not been delegated to the
Chief of Engineers. The conditions to be
imposed in any instrument of
authorization will be recommended by
the district engineer when forwarding
the report to the Assistant Secretary of
the Army (Civil Works). through the
Chief of F.ngineers.
(b) Distr.ct engineers are authorized to
decide whether DA authorization for a
dam or dike in an intrastate navigable
water of the United States will be issued
(see 33 R 325.8).
(c) Processing a DA application under
sectlofl ‘9 will not be completed until the
approval of the United States Congress
has been obtained If the navigable
water of the United States is an
interstate waterbody, or until the
approval of the appropriate state
legislature has been obtained if the
navigable water of the United States is
an intrastate waterbody (La.. the
navigable portion of the navigable water
of the United States is solely within the
boundaries of one state). The district
engineer, upon receipt of such an
application, will notify the applicant
that the consent of Congress or the state
legislature must be obtained before a
permit can be Issued.
PART 322—PERMrTS FOR
STRUCTURES OR WORK IN OR
AFFECTiNG NAVIGABLE WATERS OF
ThE UNITED STATES
8e
322.1 GeneraL
322.2 DefInitions.
322.3 ActIvities requiring permits.
322.4 ActivIties not requmng permits.
322.5 Spedalpolicies.,
Autbozlty. ss U ac 4 .
•322.1 Gsnsrd.
This regulation prescribes, In addition
to the general policies of 33 CFR Part 320
and procedures of 33 CFR Part 325, those
special policies, practices. and
procedures to be followed by the Corps
of Engineers in connection with the
review of applications for Department of
the Army (DA) permits to authorize
certain structures or work in or affecting
navigable waters of the United States
pursuant to section 10 of the Rivers and
Harbors Act of 1899 (33 U. C. 403)
(hereinafter referred to as section 10).
See 33 CFR 320.2(b). Certain structures
or work in or affecting navigable waters
of the United States are also regulated
under other authorities of the DA These
include discharges of dredged or fill
material into waters of the United
States, including the temtorial seas,
pursuant to section 404 of the Clean
Water Act (33 U.S C. 1344. see 33 CFR
Part 323) and the transportation of
dredged material by vessel for purposes
of dumping in ocean waters, including
the territorial seas, pursuant to section
103 of the Marine Protection, Research
and Sanctuaries Act of 1972, as
amended (33 U.S.C. 1413: see 33 CFR
Part 324) A DA permit will also be
required under these additional
authorities if they are applicable to
structures or work in or affecting
navigable waters of the United States.
Applicants for DA permits under this
part should refer to the other cited
authonties and Implementing
regulations for these additional permit
requirements to determine whether they
also are applicable to their proposed
activities.
§ 322.2 DefinitIons.
For the purpose of this regulation. the
following terms are defined:
(a) The term “navigable waters of the
United States” and all other terms
relating to the geographic scope of
jurisdiction are defined at 33 CFR Part
329. Generally. they are those waters of
the United States that are subject to the
ebb and flow of the tide shoreward to
the mean high water mark, and/or are
presently used, or have been used in the
past. or may be susceptible to use to
transport interstate or foreign
commerce.
(b) The term “structure” shall include.
without limitation, any pier, boat dock,
boat ramp, wharf, dolphin. weir, boom,
breakwater, bulkhead. revetment,
nprap, jetty, artificial island, artificial
reel, permanent mooring structure.
power transmission line, permanently
moored floating vessel, piling, aid to
navigation, or any other obstacle or
obstruction.
(c) The term “work” shall include.
without limitation, any dredging or
disposal of dredged material,
excavation. filling, or other modification
of a navigable water of the United
States.
(d) The term “letter of permission”
means a type of individual permit issued
In accordance with the abbreviated
procedures of 33 CFR 325.2(e).
(e) The term “individual permit”
means a DA authorization that is issued
following a case-by-case evaluation of a
specific structure or work in accordance
with the procedures of this regulation
and 33 CFR Part 325. and a
determination that the proposed
structure or work is in the public interest
pursuant to 33 CFR Part 320
(I ’) The term ‘general permit’ means a
DA authorization that is issued on a
nationwide or regional basis for a
category or categories of activities
when
(1) Those activities are substantially
similar in nature and cause only
minimal individual and cumulative
environmental impacts, or
(2) The general permit would result in
avoiding unnecessary duplication of the
regulatory control exercised by another
Federal, state, or local agency provided
it has been determined that the
envu’onznental consequences of the
action are Individually and cumulatively
minimal. (See 33 CFR 325.2(e) and 33
CFR Part 330.)
(g) The term “artificial reef” means a
structure which is constructed or placed
in the navigable waters of the United
States orin the waters overlying the
outer continental shelf for the purpose of
enhancing fishery resources and
commercial and recreational fishing
opportunities. The term does not indude
activities or structures such as wing
deflectors, bank stabilization. grade
stabilization structures, or low flow key
ways, all of which may be useful to
enhance fisheries resources.
322.3 ActIvities requiring permits.
(a) General. DA permits are required
under section 10 for structures and/or
work in or affecting navigable waters of
the United States except as otherwise
provided in § 322.4 below. Certain
activities specified in 33 CFR Part 330
are permitted by that regulation
(“nationwide general permits”). Other
activities may be authorized by district
or division engineers on a regional basis
(“regional general permits”). If an
activity is not exempted by section 322.4
of this part or authorized by a general
permit. an individual section 10 permit
will be required for the proposed
activity. Structures or work are in
navigable waters of the United States if
they are within limits defined In 33 CFR
Part 329. Structures or work outside
these limits are subject to the provisions
of law cited in paragraph (a) of this
section. if these structures or work affect
the course, location, or condition of the
waterbody In such a manner as to
impact on its navigable capacity. For
purposes of a section 10 permit, a tunnel
or other structure or work under or over
a navigable water of the United States is
considered to have an impact on the
navigable capacity of the waterbody.
(b) Outer continental shelf. DA
permits are required for the construction
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B)
Federal Register / Vol. 51. No. 219 1 Thursday, November 13, 1980 / Rules and Regulations
41229
of artificial islands, installations, and
other devices on the seabed, to the
seaward limit of the outer continental
shelf, pursuant to section 4(f) of the
Outer Continental Shelf Lands Act as
amended. (See 33 CFR 320.2(b))
(c) Activities of Federal agencies. (1)
Except as specifically provided in this
paragraph. activities of the type
described in paragraphs (a) and (b) of
this section, done by or on behalf of any
Federal agency are subject to the
authorization procedures of these
regulations. Work or structures In or
affecting navigable waters of the United
States that are part of the civil works
activities of the Corps of Engineers.
unless covered by a nationwide or
regional general permit issued pursuant
to these regulations, are subject to the
procedures of separate regulations.
Agreement for construction or
engineering services performed for other
agencies by the Corps of Engineers does
not constitute authorization under this
regulation. Division and district
engineers will therefore advise Federal
agencies accordingly, and cooperate to
the fullest extent in expediting the
processing of their applications.
(2) Congress has delegated to the
Secretary of the Army In section 10 the
duty to authorize or prohibit certain
work or structures In navigable waters
of the United States, upon
recommendation of the Chief of
Engineers. The general legislation by
which Federal agencies are enpowered
to act generally is not considered to be
sufficient authorization by Congress to
satisfy the purposes of section 10. If an
agency asserts that it has Congressional
authorization meeting the test of section
10 or would otherwise be exempt from
the provisions of section 10. the
legislative history and/or provisions of
the Act should clearly demonstrate that
Congress was approving the exact
location and plans from which Congress
could have considered the effect on
navigable waters of the United States or
that Congress intended to exempt that
agency from the requirements of section
10 Very often such legislation reserves
final approval of plans or construction
for the Chief of Engineers. in such cases
evaluatiun and authorization under this
regulation are litni ted by the intent of
the statutory language involved.
(3) The policy provisions set out in 33
CFR 320 4(j) relating to state or local
certifications and/or authorizations, do
not apply to work or structures
undertaken by Federal agencies, except
where compliance with non-Federal
authorization Is required by Federal law
or Executive ‘policy, e.g.. section 313 and
section 401 of the Clean Water Act.
322.4 ActIvttIes not requiring peimfts.
(a) Activities that were commenced or
completed shoreward of established
Federal harbor lines before May 27. 1970
(see 33 CFR 320 4(o)) do not require
section 10 permits: however, if those
activities involve the discharge of
dredged or fill material into waters of
the United States after October 18. 1972.
a section 404 permit is required. (See 33
CFR Part 323)
(b) Pursuant to section 154 of the
Water Resource Development Act of
1976 (Pub. L 94—587). Department of the
Array permits are not required under
section 10(0 construct wharves and
piers in any waterbody. located entirely
within one state, that Is a navigable
water of the United States solely on the
basis of its historical use to transport
interstate commerce.
* 322.5 $p.cl polkie .
The Secretary of the Arm)’ has
delegated to the Chief of Engineers the
authority to issue or deny section 10
permits. The following additional
special policies and procedures shall
also be applicable to the evaluation of
permit applications under this
regulation.
(a) General. DA permits are required
for structures or work In or affecting
navigable waters of the United States.
However, certain structures or work
specified In 33 CFR Part 330 are
permitted by that regulation. If a
structure or work Is not permitted by
that regulation, an individual or regional
section 10 permit will be required.
(b) ArlificiaiReef& (1) When
considering an application for an
artificial reef, as defined In 33 CFR
322.2(g). the district engineer will review
the applicant’s provisions for siting.
constructing. monitoring, operating.
mairitairung. and managing the proposed
artificial reef and shall determine if
those provisions are consistent with the
following standards:
(1) The enhancement of fishery
resources to the maximum extent
pracucable
(ii) The facilitation of access and
utilization by United States recreational
and commercial fishermen:
(iii) The nunimization of conflicts
among competing uses of the navigable
waters or waters overlying the outer
continental shelf and of the resources in
such waters.
(iv) The minunization of
environmental risks and risks to
personal health and property;
(v) Generally accepted principles of
international law and
(vi) the prevention of any
unreasonable obstructions ‘to navigation.
If the district engineer decides that the
applicant’s provisions e i iot consistent
with these standards, he shall deny the
permit. If the district engineer decides
that the provisions are consistent with
these standards, and If he decides to
issue the permit after the public interest
review, he shall make the provisions
part of the permit.
(2) In addition, the district engineer
will consider the National Artificial Reef
Plan developed pursuant to section 204
of the National Fishing Enhancement
Act of 1984, and If he decides to Issue
the permit. will notify the Secretary of
Commerce of any need to deviate from
that plan.
(3) The district engineer will comply
with all coordination provisions
required by a written agreement
between the DOD and the Federal
agencies relative to artificial reefs. In
addition. If the district engineer decides
that further consultation beyond the
normal public commenting process is
required to evaluate fully the proposed
artificial reef, he may Initiate such
consultation with any Federal agency,
state or local government, or other
interested party.
(4) The district engineer will Issue a
permit for the proposed artificial reef
only If the applicant demonstrates, to
the district engineers satlgfactlon, that
the title to the artificial reef construction
material Ii unambiguous . that
responsibility for ma1nt.nAn e of the
reef to clearly established, end that he
has the financial ability to assume
liability for all damage . that may arise
with respect to the proposed artificial
reef. A demonstration of financial
responsibility might Include evidence of
insurance, sponsorship, or available
assets.
(i) A person to whom a permit Is
issued In accordance with these
regulations and any insurer of that
person shall not be liable for damages
caused by activities required to be
undertaken under any terms and
conditions of the permit. if the perinittee
Is In compliance with such terms and
conditions.
(Ii) A person to whom a permit is
Issued in accordance with these
regulations and any insurer of that
person shall be liable, to the extent
determined under applicable law, for
damages to which paragraph (I) does not
apply.
(iii) Any person who has transferred
title to artificial reef construction
materials to a person to whom a permit
is issued In accordance with these
regulations shall not be liable for
damages arising from the use of such
materials in an artificial ree If such
materials meet applicable requirements
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41230 Federal Register I Vol. 51 .
No 219 / Thursday, November 13, 1988 / Rules and Regulations
of the plan published under section 204
of the National Artificial Reef Plan, and
are not otherwise defective at the time
title is transferred.
(c) Non-Federal dredging for
navigation. (1) The benefits which an
authorized Federal navigation project
are intended to produce will often
require similar and related operations
by non-Federal agencies (e.g.. dredging
access channels to docks and berthing
facilities or deepening such channels to
correspond to the Federal project depth).
These non-Federal activities will be
considered by Corps of Engineers
officials in planning the construction
and maintenance 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 coordinated will be
individually evaluated in accordance
with these regulations. In evaluating the
public interest in connection with
applications for permits for such
coordinated operations, equal treatment
will be accorded to the fullest extent
possible to both Federal and non-
Federal operations. Permits for non-
Federal dredging operations will
normally contain conditions requiring
the permittee to comply with the same
practices or requirements utilized in
connection with related Federal
dredging operations with respect to such
matters as turbidity. water quality.
containment of material. nature and
location of approved spoil disposal
areas (non-Federal use of Federal
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.
(2) A permit for the dredging of a
channel, slip, or other such project for
navigation may also authorize the
periodic maintenance dredging of the
project Authorization procedures and
limitations for maintenance dredging
shall be as prescribed in 33 CFR 325.6(e).
The permit w U require the permittee to
give advance (Ice to the district
engineer each time maintenance
dredging is to be performed. Where the
malntenancb dredging involves the
discharge of dredged material Into
waters of the United States or the
transportation of dredged material for
the purpose of dumping it in ocean
waters, the procedures in 33 CFR Parts
323 and 324 respectively shall also be
followed. ‘ -
(d) Structures for small boats (1) In
the absence of ovemding public interest,
favorable consideration will generally
be given to applications from ripanan
owners for permits fur piers. boat docks,
moorings, platforms and similar
structures for small boats. Particular
attention will be given to the location
and general design of such structures to
prevent possible obstructions to
navigation with respect to both the
public’s use of the waterway and the
neighboring propnetors access to the -
waterway Obstructions can result from
both the existence of the structure.
particularly in conjunction with other
similar facilities in the immediate
vicinity, and from its inability to
withstand wave action or other forces
which can be expected. District
engineers will inform applicants of the
hazards involved and encourage safety
in location. design. and operation
District engineers will encourage
cooperative or group use facilities in lieu
of individual propnetary use facilities.
(2) Floating structures for small
recreational boats or other recreational
purposes in lakes controlled by the
Corps of Engineers under a resource
manager are normally subject to permit
authorities bted in 322.3. of this
section. when those waters are regarded
as navigable waters of the United
States, However, such structures will
not be authorized under this regulation
but will be regulated wider applicable
regulations of the Chief of Engineers
published in 38 CFR 327.1911 the land
surrounding those lakes Is under
complete Federal ownership. District
engineers will delineate those portions
of the navigable waters of the United
States where this provision is applicable
and post notices of this designation in
the vicinity of the lake resource
manager’s office.
(e) Aids to navigation. The placing of
fixed and floating aids to navigation In a
navigable water of the United States is
within the purview of Section 10 of the
Rivers and Harbors Act of 1899.
Furthermore. these aide are of particular
interest to the U.S. Coast Guard because
of its control of marking, lighting and
standardization of such navigation aids.
A Section 10 nationwide permit has
been issued for such aids provided they
are approved by. and installed in
accordance with the requirements of the
U S. Coast Guard (33 CFR 330 5(a)(1)).
Electrical service cables to such aids are
not included In the nationwide permit
(an Individual or regional Section 10
permit will be required).
(I) Outer continental shelf. Artificial
islands. Installations, and other devices
located on the seabed. to the seaward
limit of the outer continental shell, are
subject to the standard permit
procedures of this regulation Where the
islands, installations and other devices
are to be constructed on lands which are
under mineral lease from the Mineral
Management Service. Department of the
Interior, that agency. in cooperation
with other federal agenpes. fully
evaluates the potential effect of the
leasing program on the total
environment. Accordingly, the decision
whether to issue a permit on lands
which are under mineral lease from the
Department of the Interior will be
limited to an evaluation of the impact of
the proposed work on navigation and
national security. The public notice will
so identify the criteria.
(g) Canals and other artificial
waterways connected to navigable
waters of the United Stales, A Candl or
similar artificial waterway is subject to
the regulatory authorities discussed in
322,3. of this Part, 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, location. condition.
or capacity. or if at some point in its
construction or operation it results in an
effect on the course, location. condition.
or capacity of navigable waters of the
United States. In all cases the
connection 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
exercise of regulatory authority will be
in accordance with the standard
procedures of these regulations. For all
other canals, the exercise of regulatory
authority is restricted to those activities
which affect the course, location.
condition, or capacity of the navigable
waters of the United States. The district
engineer will consider, for applications
for canal work, 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.
(h) Facilities at the borders of the
United States. (1) 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
(2) 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’cothtry, or for theL
exportation or importation of natural’• -‘
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-S3
Federal Register / Vol. 51, No . 219 / Thursday. November 13, 1986 / Rules and Regulations 41231
gas to or from a foreign country, must be
made to the Secretary of Energy.
(Executive Order 10485. September 3.
1953. 16 U.S.C. 824(a)(e), 15 U.S.C.
717(b). as amended by Executive Order
12038. February 3, 1978. and 18 CFR
Parts 32 and 153).
(3) Applications for the landing or
operation of submarine cables must be
made to the Federal Communications
Commission. (Executive Order 10530,
May 10. 1954, 47 U.S.C. 34 to 39. and 47
CFR 1.768).
(4) The Secretary of State is to receive
applications for permits for the
construction, connection, operation, or
maintenance, at the borders of the
United States, of pipelines, conveyor
belts, and similar facilities for the
exportation or importation of petroleum
products. coals, minerals, or other
products to or from a foreign country
facilities for the exportation or
Importation of water or sewage to or
from a foreign country: and monorails,
aerial cable cars, aerial tramways. and
similar facilities for the transportation of
persons and/or things, to or from a
foreign country. (Executive Order 11423,
August 18. 1068).
(5) A DA permit under section 10 of
the Rivers and Harbors Act of 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 district engineer,
in evaluating the general public interest.
may consider the basic existence and
operation of the facility to have been
primarily examined and permitted as
provided by the Executive Order..
Furthermore, in those cases where the
construction, maintenance, or operation
at the above facilities involves the
discharge of dredged or fill material in
waters of the United States or the
transportation of dredged material for
the purpose of dumping it into ocean
waters, appropriate DA authorizations
under section 404 of the Clean Water
Act or under section 103 of the Marine
Protection. Research and Sanctuaries
Act of 1972. as amended, are also
required. (See 33 CFR Parts 323 and 324.)
(i) Power transmission hnes. (1)
Permits under section 10 of the Rivers
and Harbors Act of 1899 are required for
power transmission 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 Department of Energy
under the Federal Power Act of 1920. 11
an application is received for a permit
for lines which are part of such a water
power project, the applicant will be
instructed to submit the application to
the Department of Energy. lithe lines
are not part of such a water power
project, the application will be
processed in accordance with the
procedures of these regulations.
(2) The following minimum clearances
are required for aerial electric power
transmission lines crossing navigable
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
crossing. The clearances are based on
the low point of the line under
conditions which produce the greatest
sag. taking i’ito consideration
temperature, load, wind, length or span.
and type of supports as outlined In the
National Electrical Safety Code.
N — .
2 2 I

-
--.-

—
lI SSrdbuior.
a

24
2 5
. a
35
42
46
i ss_. .
iei
230
—
I00 —
700__.________
7 50-755
(3) Clearances for communication
lines, stream gaging cables, ferry cables,
and other aerial crossings are usually
required to be a minimum of ten feet
above dearancea required for bridges.
Greater clearances will be required if
the public interest so indicates.
(4) Corps of Engineer regulation ER
1110-2—4401 prescrIbes minimum
vertical clearances for power and
communication lines over Corps lake
projects. In Instances where both this
regulation and ER 1110—2-4401 apply.
the greater minimum dearance is
required.
(j) Seoplane operations. (1) Structures
in navigable waters of the United States
associated with seaplane operations
require DA permits, but close
coordination with the Federal Aviation
Administration (FAA). Department of
Transportation, Is required on such
applications.
(2) The FAA must be notified by an
applicant whenever he proposes to
establish 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 district engineer will,
therefore, refer any objections regarding
the effect of the proposal on the use ofr
airspace to the FAA, and give due
consideration ;o its recommendations
when evaluating the general public
Interest.
(3) lithe seaplane base would serve
air carriers licensed by the Department
of Transportation. the applicant must
receive an airport operating certificate
from the FAA. That certificate reflects a
determination and conditions relating to
the installation, operation. and
maintenance of adequate air navigation
facilities and safety equipment.
Accordingly, the district engineer may.
in evaluating the general public interest,
consider such matters to have been
primarily evaluated by the FAA.
(4) For regulations pertaining to
seaplane landings at Corps of Engineers
projects, see 36 CFR 327.4.
(k) Foreign trade zones. The Foreign
Trade Zones Act (48 Stat. 998—1003,19
USC. 81a to 81u. as aneuded)
authorizes the establishnent of foreign-
trade zones In or adjacent to United
States ports of entry under termi 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 I. a
member of the Board. and cons uction
of a zone is under the supervision of the
district engineer. Laws governing the
navigable waters of the United States
remain applicable to foreign-trade
zones, including the general
requirements of these regulations.
Evaluation by a district engineer of a
permit application may give recognition
to the consideration by the Board of the
general econonic effects of the zone on
local and foreign commerce. general
location of wharves and facilities, and
other factors pertinent to construction,
operation. and maintenance of the zone
(I) Shipping safety fairways and
anchorage areas. DA permits are
required for structures located within
shipping safety fairways and anchorage
areas established by the U.S. Coast
Guard.
(1) The Department of the Army will
grant no permits for the erection of
structures in areas designated as
fairways, except that district engineers
may permit temporary anchors and
attendant cables or chains for floating or
semisubmersible drilling rigs to be
placed within a fairway provided the
following conditions are met.
(i) The installation of anchors to
stabilize semnisubmersible drilling rigs
within fairways must be temporary and
shall be allowed to remain only 120
days. This period may be extended by
the district engineer provided
reasonable cause for such extension can
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41232 Federal Register / Vol. 51. No-. 219 / Thursday , November 13. 1986 / Rules and Regu1ations
be shown and the extension is otherwise
‘stifled.
(u) Drilling rigs must be at least 500
et from any fairway boundary or
whatever distance necessary to insure
that minimnum clearance over an
anchor line within a fairway will be 125
feet.
(iii) No anchor buoys or floats or
related ngging will be allowed on the
surface of the water or to a depth of 125
feet from the surface, within the
fairway.
(lv) Drilling rigs may not be placed
closer than 2 nautical males of any other
drilling rig situated along a fairway
boundary. and not closer than 3 nautical
miles to any drilling rig located on the
opposite side of the fairway.
(v) The permittee must notify the
district engineer. Bureau of Land
Management. Mineral Management
Service. U.S. Coast Guard, National
Oceanic and Atmospheric
Admlnistri Lion and the U.S. Navy
Hydrographic Office of the approximate
dates (commencenent and completion)
the anchors will be In place to insure
maximum notification to mariners.
(vi) Navigation aids or danger
markings must be Installed as required
by the US. Coast Guard.
(2) DIstrict engineers may grant
permits for the erection of structures
within an area designated as an
anchorage area, but the number of
structures will be limited by spacing, as
follows: The center of a structure to be
erected shall be not less than two (2)
nautIcal miles from the center of any
existing structure. In a drilling or
production complex. associated
structures shall be as close together as
practicable having due consideration for
the safety factors involved. A complex
of associated structures. when
connected by walkways. shall be
considered one structure for the purpose
of spacing. A vessel fixed in place by
moorings and used In conjunction with
the associated structures of a drilling or
production complex. shall be considered
an attendant vessel and its extent shall
include Its moorings. When a drilling or
production complex includes an
attendant vessel and the complex
extends mote than five hundred (500)
yards from the center or the complex. a
structure to be erected shall be not
closer than two (2) nautical miles from
the near outer limit of the complex. An
underwater completion Installation In
end anchorage area shall be considered
a structure and shall be marked with a
lighted buoy as approved by the United
States Coast Guard.
PART 323—PERMITS FOR
DISCHARGES OF DREDGED OR FILL
MATERIAL INTO WATERS OF ThE
UNITED STATES
323.1 General.
3232 Definitions
323 3 Discharges requinng permits.
3234 Discharges not requiring permits.
3235 Program transfer to states
3238 Special policies and procedures
Authos4ty 33 Us C. 1344.
323.1 General.
This regulation prescribes, in addition
to the general policies of 33 CFR Part 320
and procedures of 33 CFR Part 325, those
special policies. practices, and
procedures to be followed by the Corps
of Engineers in connection with the
review of applications for DA permits to
authorize the discharge of dredged or fill
material into waters of the United States
pursuant to section 404 of the Clean
Water Act (CWA) (33 U.S.C. 1344)
(hereinafter referred to as section 404).
(See 33 ‘R 320.2(g).) Certain discharges
of dredged or fill material Into waters of
the United States are also regulated
under other authorities of the
Department of the Army. These include
dams and dikes In navigable waters of
the United States pursuant to section 9
of the Rivers and Harbors Act of 1899
(33 U.S.C. 401; see 33 CPR Part 321) and
certain structures or work in or affecting
navigable waters of the United States
pursuant to sectIon 10 of the Rivers and
Harbors Act of 1899 (33 U.S.C. 403; see
33 CFR Part 322). A DA permit will also
be required under these additional
authorities if they are applicable to
activities involving discharges of
dredged or fill material into waters of
the United States. Applicants for DA
permits under this part should refer to
the other cited authorities and
Implementing regulations for these
additional permit requirements to
determine whether they also are
applicable to their proposed activities.
§323.2 D. Uons.
For the purpose of this part. the
following terms are definedi
(a) The term “waters of the United
States” and all other terms relating to
the geographic scope of lurisdiction are
defined at 33 CFR Part 328.
(b) The term “lake” means a standing
body of open water that occurs in a
natural depression fed by one or more
streams from which a stream may flow.
that occurs due to the widening or
natural blockage or cutoff of a river or
stream, or that occurs in an isolated
natural depression that Is not a part of a
surface river or stream. The term also
includes a standIng body of open water
created by artificially blocking or
restricting the flow of a river, stream, or
tidal area As used in this regulatiOn. the
term does not include artificial lakes or
ponds created by excavating and/or
diking dry land to collect and retain
water for such purposes as stock
watering. Irrigation, settling basins.
cooling, or rice growing.
(c) The term “dredged material”
means material that is excavated or
dredged from waters of the United
States.
(d) The term “discharge of dredged
material” means any addition of
dredged material into the waters of the
United States. The term includes.
without limitation, the addition of
dredged material to a specified
discharge site located in waters of the
United States and the runoff or overflow
from a contained land or water disposal
area Discharges of pollutants into
waters of the United States resulting
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 Clean
Water Act even though the extraction
and deposit of such material may
require a permit from the Corps of
Engineers. The term does not include
plowing. cultivating, seeding and
harvesting for the production of food.
fiber, and forest products (See § 323.4
for the definition of these terms). The
term does not Include de minimis.
Incidental soil movement occurring
during normal dredging operations.
(e) The term “fill material” means any
material used for the primary purpose of
replacing an aquatic area with dry land
or of changing the bottom elevation of
an waterbody. The term does not
Include any pollutant discharged into
the water primarily to dispose of waste.
as that activity is regulated under
section 402 of the Clean Water Act.
(I) The term “discharge of fill
material” means the addition of fill
material into waters of the United
States. The term generally Includes,
without limitation, the following
activities: Placement of fill that is
necessary for the construction of any
structure in a water of the United States;
the building of any structure or
impoundment requiring rock, sand, dirt,
or other matenal 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 reclamation
devices such as nprap. groins. seawalls,
breakwaters, and revetments: beach
nounshment levees; fill for structures
such as sewage treatment facilities.
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Federal Register I Vol. 51.
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intake and outfall pipes associated with
power plants and subaqueous utility
lines; and artificial reefs. The term does
not include plowing, cultivating, seeding
and harvesting for the production of
food, fiber, and forest products (See
§ 3234 for the definition of these terms)
(g) The term “individual permit”
means a Department of the Army
authorization that Is issued following a
case-by-case evaluation of a specific
project involving the proposed
discharge(s) In accordance with the
procedures of this part and 33 CFR Part
325 and a determination that the
proposed discharge is In the public
Interest pursuant to 33 CFR Part 320.
(h) The term “general permit” means a
Department of the Army authorization
that is issued on a nationwide or
regional basis for a category or
categories of activities when:
(1) Those activities are substantially
similar in nature and cause only
minimal individual and cumulative
environmental impacts: or
(2) The general permit would result in
avoiding unnecessary duplication of
regulatory control exercised by another
Federal, state, or local agency provided
it has been determined that the
environmental consequences of the
action are individually and cumulatively
minimal. (See 33 CFR 325.2(e) and 33
CFR Part 330.)
* 323.3 DIscharges requiring permits.
(a) General. Except as provided in
§ 323.4 of this Part, DA permits will be
required for the discharge of dredged or
fill material into waters of the United
States. Certain discharges specified In
33 CFR Part 330 are permitted by that
regulation (“nationwide permits”). Other
discharges may be authorized by district
or division engineers on a regional basis
(“regional permits”). If a discharge of
dredged or fill material is not exempted
by § 323 4 of this Part or permitted by 33
CFR Part 330, an Individual or regional
set,tion 404 permit will be required for
the discharge of dredged or fill material
into haters of the United States.
(b) Activities of Federal agencies.
Discharges of dredged or fill matenal
into waters of the United States done by
or on behalf of any Federal agency,
other than the Corps of Engineers (see
33 CFR Part 209.145), are subject to the
authorization procedures of these
regulations. Agreement for construction
or engineering services performed for
other agencies by the Corps of Engineers
does not constitute authorization under
the regulations. Division and district
engineers will therefore advise Federal
agencies and instrumentalities
accord . gly and cooperate to the fullest
extent in expediting the processing of
their applications
§ 323.4 DIscharges not requirtng permits.
(a) General Except as specified in
paragraphs (b) and (c) of this section.
any discharge of dredged or fill material
that may result from any of the
following activities is not prohibited by
or otherwise subject to regulation under
section 404:
(i)(i) Normal farming, silviculture and
ranching activities such as plowing,
seeding. cultivating, minor drainage, and
harvesting for the production of food.
fiber, and forest products, or upland soil
and water conservation practices, as
defined in paragraph (a)(1)(ili) of this
section.
(ii) To fall under this exemption, the
activities specified In paragraph (a)(1)(i)
of this section must be part of an
established (I.e., on-going) farming.
eilvicultw’e, or ranching operation and
must be In accordance with definitions
In § 323.4(a)(1)ffll). Activities on areas
lying fallow as part of a conventional
rotational cyde are part of an
established operation, Activities which
bring an area into farming. silviculture,
or ranching use are not part of an
established operation. An operation
ceases to be established when the area
on which it was conducted has been
coverted to another use or has lain idle
so long that modifications to the
hydrological regime are necessary to
resume operations. If an activity takes
place outside the waters of the United
States, or if it does not involve a
discharge, It does not need a section 404
permit, whether or not It is part of an
established farming, silviculture, or
ranching operation.
(iii) (A) Cultivating means physical
methods of soil treatment employed
within established farming, ranching
and silviculture lands on farm, ranch, or
forest crops to aid and improve their
growth, quality or yield
(B) Harvesting means physical
measures employed directly upon farm,
forest, or ranch crops within established
agricultural and silvicultural lands to
bring about their removal from farm,
forest, or ranch land, but does not
include the construction of farm, forest.
or ranch roads.
(C)(1) Minor Drainage means.
(1) The discharge of dredged or fill
material incidental to connecting upland
drainage facilities to waters of the
United States, adequate to effect the
removal of excess soil moisture from
upland croplands (Construction and
maintenance of upland (dryland)
facilities, such as ditching and tiling,
incidential to the planting, cultivating,
protecting, or harvesting of crops,
involve no discharge of dredged or fill
material into waters of the United
States, and as such never require a
section 404 permit.);
(ii) The discharge of dredged or fill
material for the purpose of installing
ditching or other such water control
facilities incidental to planting,
cultivating, protecting, or harvesting of
rice, cranberries or other wetland a’op
species, where these activities and the
discharge occur In waters of the United
States which are in established use for
such agricultural and silvicultural
wetland crop product ions
(a!) The discharge of dredged or fill
material for the purpose of manipulating
the water levels of, or regulating the
flow or distribution of water within,
existing impoundments which have been
constructed in accordance with
applicable requirements of CWA. and
which are in established use for the
production of rice, cranberries, or other
wetland crop species. (The provisions of
paragraphs (a)(1J(iIl)(C)(i) (ii’) and (ii ,)
of this section apply to areas that are in
established use exclusively for wetland
crop production as well as areas in
established use for conventional
wetland/non-wetland crop rotation (e.g.,
the rotations of rice and soybeans)
where such rotation results in the
cyclical or Intermittent temporary
dewatering of such areas.)
(iv) The discharges of dredged or flU
material Incidental to the emergency
removal of sandbars, gravel bars, or
other similar blockage, which are
formed during flood flows or other
events, where such blockages dose or
constrict previously existing
drainegeways and, if not promptly
removed, would result In damage to or
loss of existing crops or would impair or
prevent the plowing, seeding, harvesting
or cultivating of crops on land In
established use for crop production.
Such removal does not include enlarging
or extending the dimensions of, or
changing the bottom elevations of, the
affected drainageway as it existed prior
to the formation of the blockage.
Removal must be accomplished within
one year of discovery of such blockages
in order to be eligible for exemption.
(2) Minor drainage In waters of the
U.S. is limited to drainage within areas
that are part of an established farming
or silviculture operation. It does not
include drainage associated with the
immediate or gradual conversion of a
wetland to a non-wetland (e.g., wetland
species to upland species not typically
adapted to life In saturates soil
conditions), or conversion from one
wetland use to another (for example,
silviculture to farming). In addition,
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41234 Federal Register 7 Vol. 51. No.219 / Thursday . November 13, 1988 f Ru1es and- Regulations
minor drainage does not include the
construction of any canal, ditch, dike or
other waterway or structure which
drains or otherwise significantly
modifies a stream. lake, swalpp. bog or
any other wetland or aquatic area
constituting waters of the United States.
Any discharge of dredged or fill material
into the waters of the United States
incidental to the construction of any
such structure tir waterway requires a
permit.
(D) Plowing means all forms of
primary tillage. including moldboard.
chisel, or wide-blade plowing. discing.
harrowing and similar physical means
utilized on farm. forest or ranch land for
the breaking up. cutting. turning over or
stirring of soil to prepare it for the
planting of craps. The term does not
Include the redistribution of soil, rock.
sand. orotbessurficlal materials in a
manner whlth thanges any area of the
waters of the United Statue to dry land.
For example. the redistribution of
aw’faes materials by bladlng. grading, or
other means to fill In wetland areas Is
not plowing. Rock eruahing activities
which result In the loss of natural
drainage characteristics, the reduction
of water sterage and recharge
capabilities. or the overburden of
natural water filtration capacities do not
constitute plowing. Plowing ae described
above will never Involv, a discharge of
dredged or fill materiaL
(B) Seeding me the sowing of seed
and placement of seedlings to produce
fazes, ranch, or forest crops and includes
the placement of soil beds for seeds or
seedlIngs on established farm and forest
lands.
(2) MaintenanCe. including emergency
reconatr’c$ ” of recently damaged
parts. of currently serviceable atructurea
such as dlkas , dams, levees, groins.
riprap. breakwaters. causeways, bridge
abutments or approaches. and
transportation structures. Maintenance
does not include any modification that
changes the character. scope. or size of
the original fill design. Emergency
reconstruction must occur within a
reasonable period of time after damage
occurs in order to qualify for this
exemption.
(3) Construction or maintenance of
farm or stock ponds or Irrigation ditches.
or the maintenance (but not
construction) of drainage ditches.
Discharges associated with siphons.
pumps. headgates. wingwalls. wei.rs.
diversion structures, and such other
facilities as are appurtenant and
functionally related to irrigation ditches
are included in this exemption.
(4) ConstructiOn of temporary
sedimentation basins on a construction
site which does not Include placement of
fill material into waters of the US. The
term “construction site” refers to any
siteinvolving the erection of buildings.
roads, and other discrete structures and
the installation of support facilities
necessary for construCtiOn and
utilization of such structures. The term
also includes any other land areas
which involve land-disturbing
excavation activities, including
quarrying or other nuning activities.
where an Increase in the runoff of
sediment is controlled through the use of-
temporary sedimentation basins.
(5) Any activity with respect to which
a state has an approved program under
section 208(b) (4) of the CWA which
meets the requirements of sections
208(b)(4) (B) and (C).
(8) Construction or maintenance of
farm roads, forest roads. or temporary
roads for moving mining equipment.
where such roads are constructed and
maintained In accordance with best
management practices (BMPs) to assure
that flow and circulation patterns and
chemical and biological characteristics
of waters of the United States are not
Impaired. that the reach of the waters of
the United States Is not reduced. and
that any adverse effect on the aquatic
environment will be otherwise
minimized. These BMPs which must be
applied to satisfy this provision shall
include those detailed Bl Wa described
in the states approved program
description pursuant to the requirements
of 40 CFR Part Z33 .22Li) , and shall also
include the following baseline
prov l s ions
(i) Permanent roads (for farming or
forestry activities), temporary access
roads (for mining. forestry. or farm
purposes) and skid trails (for logging) in
waters of the U.S. shall be held to the
minimum feasible number, width, and
total length consistent with the purpose
of specific farming. silvicultural or
mining operations, and local topographic
and climatic conditions.
(ii) All roads, temporary or
permanent. shall be located sufficiently
far from streams or other water bodies
(except for portions of euch roads which
must cross water bodies) to minimize
discharges of dredged or fill material
into waters of the U.S.;
(iii) The road fill shall be bridged.
culverted. or otherwise designed to
prevent the restriction of expected flood
flows,
(iv) The fill shall be properly
stabilized and maintained during and
following construction to prevent
erosion;
(v) Discharges of dredged or fill
material into waters of the United States
to construct a road fill shall be made In
a manner that minimizes the
encroachment of trucks, tractors.
bulldozers, or other heavy equipment
within waters of the United States
(including adjacent wetlands) that be
outside the lateral boundaries of the fill
itself.
(vi) In designing. constructing. and
maintaining roads, vegetative
disturbance in the waters of the U.S.
shall be kept to a minimum:
(vii) The design, construction and
maintenance of the road crossing shall
not disrupt the migration or other
movement of those species of aquatic
life inhabIting the water body
(viii) Borrow material shall be taken
from upland sources whenever feasible:
(ix) The discharge shall not take, or
jeopardize the continued existence of. a
threatened or endangered species as
defined under the Endangered Species
Act, or adversely modify or destroy the
critical habitat of such species;
(x) Discharges Into breeding and
nesting areas for migratory waterfowl.
spawning areas, and wetlands shall be
avoided If practical alternatives exiaL
(x l) The discharge shall not be located
In the proximity of a public water supply
tntake
(xii) The discharge shall not occur in
areas of concentrated shellfish
production;
(xiii) The discharge shall not occur in
a component of the National Wild and
Scenic mver Systenc
(xiv) The discharge of material shall
consist of suitable material free from
toxic pollutants in toxic amounts and
(xv) All temporary fills shall be
removed in their entirety and the area
restored to Its original elevation.
(b)U any discharge of dredged or fill
material resulting from the activities
listed in paragraphs (a) (1H6) of this
section contains any toxic pollutant
listed under section 307 of the CWA
such discharge shall be subject to any
applicable toxic effluent standard or
prohibition. and shall require a Section
404 permit.
(c) Any discharge of dredged or fill
material into waters of the United States
incidental to any of the activities
identified in paragraphs (a) (1HO) of
this section must have a permit if it is
part of an activity whose purpose is to
convert an area of the waters of the
United States into a use to which It was
not previously subject. where the flow
or circulation of waters of the United
States nay be impaired or the reach of
such waters reduced. Where the
proposed discharge will result in
significant discernible alterations to
flow or circulation, the presumption is
that flow or circulation may be impaired
by such alteration. For example. a
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Federal Register I Vol. 51, No. 219 / Thursday. November 13. 1986 / Rules and Regulations
41235
permit will be required for the
conversion of a cypress swamp to some
other use or the conversion of a wetland
from silvicultural to agricultural use
when there is a discharge of dredged or
fill material Into waters of the United
States in conjunction with construction
of dikes. drainage ditches or other
works or structures used to effect such
conversion. A conversion of a Section
404 wetland to a non-wetland Is a
change in use of an area of waters of the
United States, A discharge which
elevates the bottom of waters of the
United States without converting it to
dry land does not thereby reduce the
reach of, but may alter the flow or
circulation of. waters of the United
States.
(d) Federal projects which qualify
under the criteria contained in section
404(r) of the CWA are exempt from
section 404 permIt requirements, but
may be subject to other state or Federal
reqwrement*.
• 323.5 Program banster to states.
Section 404(h) of the CWA allows the
Adnurustratar of the EnvIronmental
Protection Agency (EPA) to transfer
athy’inietratjon of the sectIon 404 permit
program for discharges into certain
waters of the United States to qualified
states (The am cannot be
transferred or ose waters which are
presently used, or are susceptible to use
in their natural condition or by
reasonable improvement as a means to
transport interstate or foreign commerce
shoreward to their ordinary high water
mark., including all waters which are
subject to the ebb and flow of the tide
shoreward to the high tide line.
including wetlands adjacent thereto).
See 40 CFR Parts 233 and 124 for
procedural regulations for transferring
Section 404 programs to states. Once a
state’s 404 program is approved and in
effect, the Corps of Engineers will
suspend processing of section 404
applications in the applicable waters
and will transfer pending applications to
the state agency responsible for
administering the program. District
engineers will assist EPA and the states
in any way practicable to effect transfer
and will develop appropriate procedures
to ensure orderly and expeditious
transfer.
§ 323.6 Special polIcies and procedures.
(a) The Secretary of the Army has
delegated to the Chief of Engineers the
authority to issue or deny section 404
permits. The district engineer will
review applications for permits for the
discharge of dredged or fill material into
waters of the United States in
accordance with guidelines promulgated
by the Administrator, EPA. under
authority of section 404(b)(1) of the
CWA. (see 40 CFR Part 230.) Subject to
consideration of any economic impact
on navigation and anchorage pursuant
to section 404(b)(2), a permit will be
denied if the discharge that would be
authorized by such a permit would not
comply with the 404(b)(1) guidelines. If
the district engineer determines that the
proposed discharge would comply with
the 404(b)(1) gwdelines, he will grant the
permit unless issuance would be
contrary to the public interest
(b) The Corps will not Issue a permit
where the regional administrator of EPA
has notified the district engineer and
applicant in writing pursuant to 40 CFR
231.3(a)(1) that he intends to Issue a
public notice of a proposed
determination to prohibit or withdraw
the specification, or to deny, restrict or
withdraw the use for specification, of
any defined area as a disposal site in
accordance with section 404(c) of the
Clean Water Act. However the Corps
will continue to complete the
administrative processing of the
application while the section 404(c)
procedures are underway Including
completion of final coordination with
EPA under 33 CFR Part 325.
PART 324—PERMITS FOR OCEAN
DUMPING OF DREDGED MATERIAL
Sec
324.1 General.
324.2 DefinItions.
3243 Activities requinng permits.
3244 Special procedures.
Authority 33 U.S C. 1413.
§324,1 Genital .
This regulation prescribes in addition
to the general policies of 33 CFR Part 820
and procedures of 33 CFR Part 325. those
special policies, practice, and
procedures to be followed by the Corps
of Engineers in connection with the
review of applications for Department of
the Army (DA) permits to authorize the
transportation of dredged material by
vessel or other vehicle for the purpose of
dumping it in ocean waters at dumping
sites designated under 40 CFR Part 228
pursuant to section 103 of the Marine
Protection, Research and Sanctuaries
Act of 1972, as amended (33 U.S.C. 1413)
(hereinafter referred to as section 103).
See 33 CFR 320.2(h). Activities Involving
the transportation of dredged material
for the purpose of dumping in the ocean
waters also require DA permits under
Section 10 of the Rivers and Harbors
Act of 1899 (33 U.S.C. 403) for the
dredging in navigable waters of the
United States. Applicants for DA
permits under this Part should also refer
to 33 CFR Part 322 to satisfy the
requirements of Section 10...
• 3242 DefInitions.
For the purpose of this regulation, the
following terms are defineth
(a) The term “ocean waters’ means
those waters of the open seas lying
seaward of the base line from which the
territorial sea is measured, as provided
for in the Convention on the Territorial
Sea and the Contiguous Zone (15 UST
1600: TIAS 5839).
(b) The term “dredged material”
means any material excavated or
dredged from navigable waters of the
United States.
(c) The term “transport” or
“transportation” refers to the
conveyance and related handling of
dredged material by a vessel or other
vehicle.
• 324.3 ActivtlI.s rsq .r,g pwnit
(a) Genemi. DA permit. are required
for the transportation of dredged
material for the purpose of dumping It In
ocean waters.
(b) Activities of Federol ogencies. (1)
The transportation of dredged material
for the purpose of disposal In ocean
waters done by or on behalf of any
Federal agency other than the activities
of the Corps of Engineers Is subject to
the procedures of this regulation.
Agreement for construction or
engineering services performed for other
agencies by the Corps of Engineers does
not constitute authorization under these
regulations. Division and district
engineers will therefore advise Federal
agencies accordingly and cooperate to
the fullest extent In the expeditious
processing of their applications. The
activities of the Corps of Engineers that
Involve the transportation of dredged
material for disposal in ocean waters
are regulated by 33 CFR 209.145.
(2) The policy provisions set out in 33
CFR 320.4(j) relating to state or local
authorizations do not apply to work or
structures undertaken by Federal
agencies. except where compliance with
non-Federal authorization is reqwred by
Federal law or Executive policy. Federal
agencies are responsible for
conformance with such laws and
policies. (See EO 12088, October 18,
1978 ) Federal agencies are not required
to obtain and provide certification of
compliance with effluent limitations and
water quality standards from state or
interstate water pollution control
agencies In connection with activities
involving the transport of dredged
material for dumping into ocean waters
beyond the territorial sea.
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41236 Federal Register / Vol. 51. No. 219 / Thursday. November 13, 1988 / Rules and Regulations
§ 324.4 Special procedures.
The Secretary of the Army has
delegated to the Chief of Engineers the
authority to issue or deny section 103_
permits. The following additional
procedures shall also be applicable
under this regulation.
(a) Public notice For all applications
for section 103 permits. the district
engineer will issue a public notice which
shall contain the information specified
in 33 CFR 325.3.
(b) Evaluation. Applications for
permits for the transportation of dredged
material for the purpose of dumping it in
ocean waters will be evaluated to
determine whether the proposed
dumping will unreasonably degrade or
endanger human health. welfare,
amenities, or the marine environment.
ecological systems or economic
potentialities. District engineers will
apply the criteria established by the
Administrator of EPA pursuant to
section 102 of the Marine Protection.
Research and Sanctuaries Act of 1972 In
making this evaluatfon. (See 40 CFR
Parts 220-229) Where ocean dumping is
determined to be necessary. the district
engineer will, to the extent feasible.
specify disposal sites using the
recommendations of the Administrator
pursuant to section 102(c) of the Act.
(a) EPA review. When the Regional
Administrator. EPA. in accordance with
40 CFR 223.2(b). advises the district
engineer. In writing, that the proposed
dumping will comply with the criteria.
the district engineer will complete his
evaluation of the appilcation under this
part end 33 CFR Parts 320 and 325. If.
however, the Regional Administrator
advises the district engineer. in writing.
that the proposed dumping doe . not
comply with the criteria, the district
engineer will proceed as follows:
(1) The district engineer will
determine whether there is an
economically feasible alternative
method or site available other than the
proposed ocean disposal site. If there
are other feasible alternative methods or
sites available, the district engineer will
evaluate them in accordance with 33
CFR Parts 320, 322, 323. and 325 and this
Part, as appropriate.
(2) lIthe district engineer determines
that there is no economically feasible
alternative method or site available. and
the proposed project Is otherwise found
to be not contrery to the public interest.
he will so advise the Regional
Administrator setting forth his reasons
for such determination, lithe Regional
Administrator has not removed his
objection within 15 days. the district
engineer will submit a report of his
determination to the Chief of Engineers
for further coordination with the
Administrator. EPA, and decision. The
report forwarding the case will contain
the analysis of whether there are other
economically feasible methods or sites
available to dispose of the dredged
material.
(d) Chief of Engineers review. The
Chief of Engineers shall evaluate the
permit application and make a decision
to deny the permit or recommend its
issuance. If the decision of the Chief of
Engineers is that ocean dumping at the
proposed disposal site is required
because of the unavailability of
economically feasible alternatives, he
shall so certify and request that the
Secretary of the Army seek a waiver
from the Administrator. EPA, of the
criteria or of the critical site designation
In accordance with 40 CFR 2254.
PART 325—PROCESSING OF
DEPARTMENT OF THE ARMY
PERMITS
Se
3251 ApplicatIons for permits.
3252 Processing of applications.
3253 Public notice.
3254 ConditIoning of permits.
3255 Forms of permits.
325.8 DuratIon of permits.
3257 ModificatIon. suspension, or
revocation of permit..
3238 Authority to issue or deny permits.
3259 Authority to determine tunedictlon.
32510 PublicIty.
Appendix A—Permit Form and Special
Conditions
Appendix B—Reserved (For Future NEPA
Regulation)
Appendix C—Reserved (For Historic
Properties Regulation)
Auth ty 33 U 5.C. 401 t seq.. 33 U S C.
1344; 33 USC 1413.
§325.1 ApplICat$OflStOrPStTflIt$.
(a) General. The processing
procedures of this Part apply to any
Department of the Army (DA) permit.
Special procedures and additional
information are contained In 33 CFR
Parts 320 through 324. 327 and Part 330.
This Part is arranged in the basic timing
sequence used by the Corps of
Engineers in processing applications for
DA permits.
(b) Pre-applicaLton consultation for
major applications. The district staff
element having responsibility for
administering, processing. and enforcing
federal laws and regulations relating to
the Corps of Engineers regulatory
program shall be available to advise
potential applicants of studies or other
information foreseeably required for
later federal action. The district
engineer will establish local procedures
and policies including appropriate
publicity programs which will allow
potential applicants to contact the
district engineer or the regulatory staff
element to request pre-applica Lion
consultation Upon receipt of such
request, the district engineer will assure
the conduct of an orderly process which
may involve other stafr elements and
affected agencies (Federal. state. or
local) and the public. This early process
should be brief but thorough so that the
potential applicant may begin to assess
the viability of some of the more
obvious potential alternatives in the
application. The district engineer will
endeavor, at this stage. to provide the
potential applicant with all helpful
information necessary in purswng the
application, including factors which the
Corps must consider in its permit
decision making process. Whenever the
district engineer becomes aware of
planning for work which may require a
DA permit and which may involve the
preparation of an environmental
document, he shall contact the
principals involved to advise them of the
requirement for the permit(s) and the
attendant public interest review
including the development of an
environmental document. Whenever a
potential applicant indicates the intent
to submit an application for work which
may require the preparation of an
environmental document. a single point
of contact shall be designated within the
district’s regulatory staff to effectively
coordinate the regulatory process.
including the National Environmental
Policy Act (NEPA) procedures and all
attendant reviews, meetings. hearings,
and other actions, including the scoping
process if appropriate. leading to a
decision by the district engineer. Effort
devoted to this process should be
commensurate with the likelihood of a
permit application actually being
submitted to the Corps. The regulatory
staff coordinator shall maintain an open
relationship with each potential
applicant or his consultants so as to
assure that the potential applicant is
fully aware of the substance (both
quantitative and qualitative) of the data
required by the district engineer for use
in prepanng an environmental
assessment or an environmental impact
statement (EIS) in accordance with 33
CFR Part 230. Appendix B.
(c) Application form. Applicants for
all individual DA permits must use the
standard application form (ENG Form
4345. 0MB Approval No. 0MB 49-
R0420). Local variations of the
application form for purposes of
facilitating coordination with federaL
state and local agencies may be used.
The appropriate form may be obtained
from the district office having
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Federal Register / Vol. 51. No. 219 / Thursday, November 13. 1988 / Rules and Regulations
41237
jurisdiction over the waters in which the
activity is proposed to be located.
Certain activities have been authorized
by general permits and do not require
submission of an application form but
may require a separate notification.
(d) Content of apphcat,on. (1) The
application must include a complete
description of the proposed activity
including necessary drawings, sketches.
or plans sufficient for public notice
(detailed engineering plans and
specifications are not required); the
location, purpose and need for the
proposed activity: scheduling of the
activity; the names and addresses of
adjoining property owners; the location
and dimensions of adjacent structures;
and a list of authorizations required by
other federal, interstate, state, or local
agencies for the work. Induding all
approvals received or denials already
made. See § 325.3 for Information
required to be in public notices. District
and division engineers are not
authorized to develop additional
Information forms but may request
specific information on a case-by-case
basis. (See 325.1(e)).
(2) All activities which the applicant
plans to undertake which are
reasonably related to the seine project
and for which a DA permit would be
required should be included In the same
permit application. District engineers
should reject, as incomplete, any permit
application which fails to comply with
this requirement. For example, a permit
application for a marina will include
dredging required for access as well as
any fill associated with construction of
the marina.
(3) If the activity would Involve
dredging in navigable waters of the
United States, the application must
include a description of the type.
composition and quantity of the material
to be dredged, the method of dredging.
and the site and plans for disposal of the
dredged material.
(4) If the activity would include the
discharge of dredged or fill material into
the waters of the United States or the
transportation of dredged material for
the purpose of disposing of It in ocean
waters the application must include the
source of the matenal; the purpose of
the discharge. a description of the type,
composition and quantity of the
material, the method of transportation
and disposal of the material; and the
location of the disposal site.
Certification under section 401 of the
Clean Water Act is required for such
discharges into waters of the United
States
(5) If the activity would Indude the
construction of a filled area Or pile or
float-supported platform the project
description must include the use of, and
specific structures to be erected on, the
fill or platform.
(6) If the activity would involve the
construction of an impoundment
structure, the applicant may be required
to demonstrate that the structure
complies with established state dam
safety criteria or that the structure has
been designed by qualified persons and,
In appropnate cases, independently
reviewed (and modified as the review
would indicate) by similarly qualified
persons. No specific design criteria are
to be prescribed nor is an independent
detailed engineering review to be made
by the district engineer.
(7) Signature on applicatiort The
application must be signed by the
person who desires to undertake the
proposed activity (i.e. the applicant) or
by a duly authorized agent. When the
applicant is represented by an agent,
that information will be included In the
space provided on the application or by
a separate written statement The
signature of the applicant or the agent
will be an affirmation that the applicant
possesses or will possess the requisite
property interest to undertake the
activity proposed In the application,
except where the lands are under the
control of the Corps of Engineers, in
which cases the district engineer will
coordinate the transfer of the real estate
and the permit actIon. An application
may tndude the activity of more than
one owner provided the character of the
activity of each owner is similar and in
the same general area and each owner
submits a statement designating the
same agent.
(8) If the activity would involve the
construction or placement of an artificial
reef, as defined in 33 CFR 322.2(g), In the
navigable waters of the United States or
in the waters overlying the outer
continental shelL the application must
include provisions for siting.
constructing, monitoring, and managing
the artificial reef.
(9) Complete opplicotion. An
application will be determined to be
complete when sufficient information is
received to Issue a public notice (See 33
CFR 325.1(d) and 325 3(a).) The issuance
of a public notice will not be delayed to
obtain information necessary to
evaluate an application.
(e) Additional information. In addition
to the information indicated in
paragraph (d) of this section. the
applicant will be required to furnish
only such additional information as the
district engineer deems essential to
make a public interest determination
mcluding, where applicable, a
determination of compliance with the
section 404(b)(1) guidelines or ocean
dumping criteria. Such additional
information may include environmental
data and information on alternate
methods and sites as may be necessary
for the preparation of the required
environmental documentation.
(I) Fees. Fees are required for permits
under section 404 of the Clean Water
Act, section 103 of the Marine
Protection. Research and Sanctuaries
Act of 1972, as amended, and sections 9
and 10 of the Rivers and Harbors Act of
1899. A fee of $100.00 will be charged
when the planned or ultimate purpose of
the project Is commercial or industrial In
nature and Is in support of operations
that charge for the production,
distribution or sale of goods or services.
A $10.00 fee will be charged for permit
applications when the proposed work Is
non-commercial in nature and would
provide personal benefits that have no
connection with a commercial
enterprise. The final decision as to the
basis for a fee (commercial vs. non-
commercial) shall be solely the
responsibility of the district engineer. No
fee will be charged if the applicant
withdraw, the application at any time
prior to issuance of the permit or If the
permit is denied. Collection of the fee
will be deferred until the proposed
activity has been determined to be not
contrary to the public interest Multiple
fees are not to be charged if more than
one law Is applicable. Any modification
significant enough to require publication
of a public notice will also require a fee.
No fee will be assessed when a permit ii
transferred from one property owner to
another. No fees will be charged for time
extensions, general permits or letters of
permission. Agencies or
instrumentalities of federal, state or
local governments will not be required
to pay any fee in connection with
permits.
3252 Proc.ulng of applications.
(a) Standard procedures. (1) When an
application for a permit is received the
district engineer shall immediately
assign it a number for identification.
acknowledge receipt thereof, and advise
the applicant of the number assigned to
it He shall review the application for
completeness, and if the application Is
incomplete. request from the applicant
within 15 days of receipt of the
application any additional information
necessary for further processing.
(2) Within 15 days of receipt of an
application the district engineer will
either determine that the application is
complete (see 33 CFR 325.1(d)(9) and
issue a public notice as described in
* 325.3 of this Part, unless specifically
exempted by other provisions of this
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.238 Federal Register/YOl . 51. No 219 I Thursuay._ o .emDer / o -.-_
gulation or that it is incomplete and
)tify the applicant of the information
-—essary for a complete application.
listrict engineer will issue a
emental. revised, or corrected
ic notice if in his view there is a
iange in the application data That
ould affect the public’s review of the
roposal.
(3) The district engineer will consider
II comments received in response to the
ublic notice in his subsequent actions
n the permit application. Receipt of the
omments will be acknowledged. if
ppropnate. and they will be made a
art of the adinirustrative record of the
pplicatiofl. Comments received as form
etters or petitions may be
icknowledged as a group to the person
ir organization responsible for the form
etter or petition. if comments relate to
iiatters within the special expertise of
inoth r federal agency. the district
.ngineer m y seek the advice of that
sgertcy. If the district engineer
letermines. based on comments
received, that he must have the views of
the applicant on a particular Issue to
make a public interest determination.
the applicant will be given the
opportunity to furnish his views on such
issue to the district engineer (see
325.2(d)(5)). At the earliest practicable
time other substantive comments will be
furnished to the applicant for his
information and any views he may wish
ffer. A summary of the comments.
actual letters or portions thereof. or
iepresentatiVe comment letters may be
furnished to the applicant. The applicant
may voluntarily elect to contact
objectors In an attempt to resolve
objections but will not be required to do
so. District engineers will ensure that all
parties are informed that the Corps
alone is responsible for reaching a
decision on the merits of any
application. The district engineer may
also offer Corps regulatory staff to be
present at meetings between applicants
and objectors. where appropriate, to
provide information on the process. to
mediate differences, or to gather
information to aid in the decision
process. The district engineer should not
delay processing of the application
unless the applicant requests a
reasonable delay. normally not to
exceed 30 days. to provide additional
information or comments.
(4) The district engineer will follow
Appendix B of 33 CFR Part 230 for
environmental procedures and
documentation required by the National
Environmental Policy Act of 1969. A
decision on a permit application will
require either an environmental
assessment or an environmental impact
statement unless it is included within a
categorical exclusion.
(5) The district engineer will also
evaluate the application to determine
the need for a public hearing pursuant to
33 CFR Part 327.
(8) After all above actions have been
completed. the district engineer will
determine in accordance with the record
and applicable regulations whether or
not the permit should be issued. He shall
prepare a statement of findings (SOF)
or. where an EIS haibeen prepared. a
record of decision (ROD). on all permit
decisions. The SOF or ROD shall
include the district engineer’s views on
the probable effect of the proposed work
on the public interest including
conformity with the guidelines published
for the discharge of dredged or fill
material into waters of the United States
(40 CFR Part 230) or with the criteria for
dumping of dredged material in ocean
waters (40 CFR Parts 220 to 229). if
applicable, and the conclusions of the
district engineer. The SOF or ROD shall
be dated. signed. and included in the
record prior to final action on the
application. Where the district engineer
has delegated authority to sign permits
for and in his behalf. he may similarly
delegate the signing of the SOF or ROD.
If a district engineer makes a decision
on a permit application which is
contrary to state or local decisions (33
CFR 320.4(j) (2) & (4)). the district
engineer will include In the decision
document the significant national issues
and explain how they are overriding in
importance. if a permit is warranted, the
district engineer will determine the
special conditions. if any, and duration
which should be incorporated into the
permit. In accordance with the
authorities specified in Section 325.8 of
this Part, the district engineer will take
final action or forward the application
with all pertinent comments, records,
and studies. including the final EIS or
environmental assessment, through
channels to the official authorized to
make the final decision. The report
forwarding the application for decision
will be in a format prescribed by the
Chief of Engineers. District and division
engineers will notify the applicant and
interested federal and state agencies
that the application has been forwarded
to higher headquarters. The district or
division engineer may. at his option.
disclose his recommendation to the
news media and other interested parties.
with the caution that it is only a
recommendation and not d final
decision. Such disclosure is encouraged
in permit cases which have become
controversial and have been the subject
of stories in the media or have generated
strong public interest In those cases
where the application is forwarded for
decision in the format prescribed by the
Chief of Engineers, the report will serve
as the SOF or ROD. District engineers
will generally combine the SOF.
environmental assessment, and findings
of no significant impact (FONSfl.
404(b)(1) guideline analysis. and/or the
criteria for dumping of dredged material
in ocean waters into a single document.
(7) If the final decision is to deny the
permit. the applicant will be advised in
writing of the reason(s) for denial. If the
final decision is to issue the permit and
a standard individual permit form will
be used, the issuing official will forward
the permit to the applicant for signature
accepting the conditions of the permit.
The permit is not valid until signed by
the issuing official. Letters of permission
require only the signature of the issuing
officiaL Final action on the permit
application is the signature on the letter
notifying the applicant of the denial of
the permit or signature of the issuing
official on the authorizing document.
(8) The district engineer will publish
monthly a list of permits issued or
denied during the previous month. The
list will identify each action by public
notice number, name of applicant. and
brief description of activity involved. It -
will also note that relevant
environmental documents and the SOF’s
or ROD’s are available upon written
request and, where applicable, upon the
payment of administrative fees. This list
will be distributed to all persons who
may have an interest in any of the
public notices listed.
(9) CopIes of permits will be furnished
to other agencies in appropriate cases as
follows:
(i) If the activity involves the
construction of artificial islands,
installations or other devices on the
outer continental shelf, to the Director,,.
Defense Mapping Agency. HydrograPb.
Center, Washington. DC 20390
Attention, Code NS12, and to the
Charting and Geodetic Services. NI
CG222. National Ocean Service NOAA.
Rockville, Maryland 20852.
(ii) If the activity involves the
construction of structures to enhance
fish propagation (e.g.. fishing reefs)
along the coasts of the United States, tO
the Defense Mapping Agency.
HydrographiC Center and National
Ocean Service as in paragraph (a)(9)(’)
of this section and to the Director. OffiC
of Marine Recreational Fisheries.
National Marine Fisheries Service,
Washington. DC 20235.
(iii) If the activity involves the
erection of an aerial transmission Iine
submerged cable, or submerged pipeli
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Federal Register I VoL 51.
No. - 219 / Thursday, November 13, 1988 / RuIes -and Regulanoas - 41239
across a navigable water of the United
states, to the Charting and Geodetic, -
Services N/CG222, National Ocean
Service NOAA. Rockville. Maryland
2D85 -
(iv) If the activity Is listed in, -
paragraPhs (a)(9) (i), (ii), or (iii) of, this
section. or Involves the transportation of
dred8ed material for the purpose of
dumping It In ocean waters, to the
appropriate District Commander. U.S.
Coast Guard.
(b) Procedures for particular types of
permit s,tuoiions.—(1) Section 401
Waler Quality Certification. If the
district engineer determines that water
quality certification for the proposed
activity is necessary under the
provisions of section 401 of the Clean
Water Act, he shall so notify the
applicant and obtain from him or the
certifying agency a copy of such
certification.
(I) The public notice for such activity.
which will contain a statement on
certification requirements (see
325.3(a)(8fl. will serve as the - -
notification to the Administrator of the
Environmental Protection Agency (EPA)
pursuant to section 401(a)(2) of the
Clean Water Act. If EPA determines that
the proposed discharge may affect the
quality of the waters of any state other
than the state in which the discharge
will originate. it will so notify such other
state, the district engineer, and the
applicant. 11 such notice or a request for
supplemental information is not
received within 30 days of issuance of
the public notic e. the district engineer
will assume EPA has made a negative
determination with respect to section
401(a)(2). If EPA determines another
state’s waters may be affected, such
state has 80 days from receipt of EPA’s
notice to determine If the proposed
discharge will affect the quality of Its
waters so as to violate any water
quality requirement in such state, to
notify EPA and the district engineer in
wilting of its objection to permit
Issuance, and to request a public
hearing. If such occurs, the diatrict
engineer will hold a public hearing In
the objecting state. Except as stated
below, the hearing will be conducted In
accordance with 33 CFR Part 327. The
Issues to be considered at the public
hearing will be limited to water quality
Impacts. EPA will submit Its evaluation
and recommendations at the hearing
with respect to the state’s objection to
permit issuance. Based upon the
recommendations of the objecting state,
EPA. and any additional evidence
Presented at the hearing, the district -
engineer will condition the permit, if..
Issued, in such a manner as may be ,
necessary to insure compliance with - -. the district engineer ehali ot make a
applicable water quality requirements. If. -final decisioii on the application until
the Imposition of conditions cannot, in - the disagreeing parties have had an -
the district engineer’s opinion. insure - .opportunity to utilize the procedures -
such compliance, he will deny the specified by the CZM Act for resolving
permit. such disagreements.
(ii) No permit will be granted until (ii) If the applicant is not a federal
required cartificatThn has been obtained agency and the application involves an
or has been waived. A waiver may be activity affecting the coastal zone, the
explicit, or will be deemed to occur If district engineer shall obtain from the
the certifying agency fails or refuses to applicant a certification that his
act on a request for certification within proposed activity complies with and will
sixty days after receipt of such a request be conducted In a manner that is
unless the district engineer determines a consistent with the approved state CZM
shorter or longer period Is reasonable Program. Upon receipt of the
for the state to act. In determining certification, the district engineer will
whether or not a waiver period has forward a copy of the public notice
commenced or waiver has occurred. the (which will include the applicant’s
district engineer will verify that the certification statement) to the state
certifying agency has received a valid coastal zone agency and request Its
request for certification. if. however. - concurrence or objection. If the state -
special circumstances Identified by the agency objects to the certification or
district engineer require that action on Issues a decision Indicating that the -
an application be taken within a more proposed activity requires further
limited period of time, the district review, the district engineer shall not
engineer shall determine a reasonable issue the permit until the state concurs
lesser period of time. advise the with the certification statement or the
certifying agency of the need for action Secretary of Commerce determines that
by a particular date, and that, if the proposed activity Is consistent with
certification Is not received by that date, the purposes of the CZM Act aria
It will be considered that the necessary in the Interest of national
requirement for certification has been security, If the state agency falls to
waived. Similarly, if It appears that concur’or object to a certification - - -
circumstances may reasonably require a statement within six month . of the state
period of time longer than sIxty days, agency’s receipt of the tdrtiflcatlon
the district engineer, based on statement, state agency concurrence -
Information provided by the certifying with the certification statement shall be
agency, will determine a longer conclusively presumed. District
reasonable period of time, not to exceed engineers will seek agreements’with
one year. at which time a waiver will be state CZM agencies that the agency’. -
deemed to occur. failure to provide comments during the
(2) Coastal Zone Management public notice comment period will be -
Consistency. If the proposed activity is considered as a concurrence with the
to be undertaken In a state operating certification or walver9f the right to
under a coastal zone management concur or nOn-concur.
program approved by the Secretary of (iii) If the applicant is requesting a -
Commerce pursuant to the Coastal Zone permit for work on Indian reservation
Management (CZM) Act (see 33 CFR lands which are In the coastal zone. the
320.3(b)). the district engineer shall district engineer shall treat the
proceed as follows: application in the same manner as
(1) If the applicant is a federal agency, prescribed for a Federal applicant in
and the application Involves a federal paragraph (b)(2)(i) of this section.
activity In or affecting the coastal zone, However, if the applicant Is requesting a
the district engineer shall forward a permit on non-trust Indian lands, and
copy of the public notice to the agency the state CZM agency has decided to
of the state responsible for reviewing assert jurisdiction over such lands, the
the consistency of federal activities. The district engineer shall treat the
federal agency applicant shall be application in the same manner as -
responsible for complying with the CZM prescribed for a non-Federal applicant
Act’s directive for ensuring that federal in paragraph (b)(2)(iI) of this section.
agency activities are undertaken In a (3) Historic Prop ertie -s. If the proposed
manner which is consistent, to the activity would Involve any property -
maximum extent practicable, with listed or eligible for listing in the
approved CZM Programs. (See 15 CFR National Register of Historic Places, the
Part 930.) lIthe state coastal zone , district engineer will proceed in -
agency objects to the proposed federal accordance with Corps National - - -
• activity on the basis of Its Inconsistency Historic Preservation Act implementing
with the state’s approved CZM Program. ‘ regulations. .
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; 1240 - Federal Register / Vol. 51. No 219 / Thursday, t o ernoer 1J, 1 uo , rcu es atiu
(4) Act.’ vit.zes Aäsociated with Federal
‘rojecLs. lithe proposed activity would -
onsist of the dredging of an access
uiel and/or berthing facility
aated with an authorized federal
gatlon project. the activity .wtU be
nciuded In the planning and
:oordination of the construction or
naintenance of the federal project to the
iiaximum extent feasible. Separate
iotice. hearing, and environmental
locumentation will not be required for
activities so Included and coordinated.
and the public notice issued by the
district engineer for these federal and
associated non-federal activities will be
the notice of intent to issue permits for
those included non-federal dredging
activities. The decision whether to Issue
or deny such a permit will be COUB IS tent
with the decision on the federal project
unless special considerations applicable
to the proposed activity are identified.
(See 322.5(c).)
(5) Endangered Species. Applications
will be reviewed for the potential Inipact
on threatened or endangered species
pursuant to section 7 of the Endangered
Species Act as amended. The district
engineer will include a statement In the
public notice of his current knowledge of
endangered species based on his initial
review of the application (see 33 CFR
325.2(a)(2)). If the district engineer
determines that the proposed activity
would not affect listed species or their
cal habitat. he will include a
tment to this effect In the public
ce. if he finds the proposed activity
. ay affect an endangered or threatened
species or their critical habitat, he will
initiate formal consultation procedures
with the U.S. Fish and Wildlife Service
or National Marine Fisheries Service.
Public notlcã forwarded to the U.S. Fish
and Wildlife Service or National Marine
Fisheries Service will serve as the
request for Information on whether any
listed or proposed to be listed
endangered or thfeatened species may
be present In the area which would be
affected by the proposed activity.
pursuant to-section 7(c) of the Act.
References, definitions, and consultation
procedures are found En 50 CFR Part 402.
(c) [ Reserved]
(d) Timing of processing of
applications. The district engineer will
be guided by the following time limits
for the indicated steps In the evaluation
process:
(1) The public notice will be issued
withIn 15 days of receipt of all
Information required to be submitted by
the applicant in accordance with
paragraph 325.1.(d) of this Part.
(2) The comment period on the public
notice should be for a reasonable period
of time within which Interested parties
may express their views concerning the
- permit. The comment period should not
be more than 30 days nor less than 15 -.
- days from the date of the notice. Before
designating comment periods less than
30 days. the district engineer will
consideri (i) Whether the proposal is
routine or noncontroversial. (ii) mail
tune and need for comments from
remote areas. (iii) comments from
similar proposals. and (iv) the need for a
site visit. After considering the length of
the original comment period, paragraphs
(a)(2) (i) through (iv) of this section. and
other pertinent factors. the district
engineer may extend the comment
period up to an additional 30 days if
warranted.
(3) District engineers will decide on all
applications not later than 60 days after
receipt of a complete application, unless
(i) precluded as a matter of law or
procedures required by law (see below),
(ii) the case must be referred to higher
authority (see * 325.5 of this Part). (Iii)
the comment period Is extended. (iv) a
timely submittal of information or
comments is not received from the
applicant. (v) the processing is
suspended at the request of the
applicant, or (vi) information needed by
the district engineer for a decision on
the application cannot reasonably be
obtained within the 60-day period. Once
the cause for preventing the decision
from being made within the normal 80-
day period has been satisfied or
ehrnina ted, the 60-day clock will start
running again from where It was
suspended. For example. if the comment
period is extended by 30 days, the
district engineer will, absent other
restraints, decide on the application
within 90 days of receipt of a complete
application. Certain laws (e.g.. the Clean
Water Act. the CZM Act. the National
Environmental Policy Act, the National
Historic Preservation Act, the
Preservation of Historical and
Archeological Data Act. the Endangered
Species Act. the Wild and Scenic Rivers
Act, and the Marine Protection.
Research and Sanctuaries Act) require
procedures such as state or other federal
agency certifications, public hearings,
environmental Impact statements.
consultation, special studies. and testing
which may prevent district engineers
from being able to decide certain
applications within 60 days.
(4) Once the district engineer has
sufficient information to make his public
interest determination, he should decide
the permit application even though other
agencies which may have regulatory
jurisdiction have not yet granted their
authorizations, except where such
authorizations are, by federal law, a
prerequisite to making a decision on the
DA permit application. Permits granted
prior to other (non-prerequisite)
authorizations by other agencies should.
where appropriate. be conditioned in
such manner as to give those other
authorities an opportunity to undertake
their review without the applicant
biasing such review by making
substantial resource commitments on
the basis of the DA permit. In unusual
cases the district engineer may decide
that due to the nature or scol5e of a
specific proposal. It would be prudent to
defer taking final action until another
agency has acted on its authorization. In
such cases, he may advise the other
agency of his position on the DA permit
while deferring his final decision.
(5) The applicant will be given a
reasonable time, not to exceed 30 days.
to respond to requests of the district
engineer. The district engineer may
make such requests by certified letter
and clearly inform the applicant that if
he does not respond with the requested
Information or a justification why
additional time is necessary. then his
application will be considered
withdrawn or a final decision will be
made. whichever is appropriate.!!
additional time is requested. the district
engineer will either grant the time. make
a final decision. or consider the
application as withdrawn.
(8) The time requirements in these
regulations arc In terms of calendar
days rather than in terms of working
days.
(e) Aiternative procedures. Division
and district engineers are authorized to
use alternative procedures as follows:
(1) Letters of permission- Letters of
permission are a type of permit Issued
through an abbreviated processing
procedure which includes coordination
with Federal and state fish and wildlife
agencies. as required by the Fish and
Wildlife Coordination Act. and a public
interest evaluation. but without the
publishing of an Individual public notice.
The letter of permission will not be used
to authorize the transportation of
dredged material for the purpose of
dumping It in ocean waters. Letters of
permission may be use&
(i) In those cases subject to section 10
of the Rivers and Harbors Act of 1899
when, in the opinion of the district
engineer, the proposed work would be
minor, would not have significant
individual or cumulative impacts on
environmental values, and should
encounter no appreciable opposition.
(ii) In those cases subject to section
404 of the Clean Water Act after.
(A) The district engineer, through
consultation with Federal and state fish
and wildlife agencies. the Regional
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Federal Register I VoL 51. No. 219 I Thursday, November 13, 1988 1 Rules and Regulations 41.241
Admirus ator. Environmental Protection
Agency. the 8tate water quality
certifying agency. and. if appropriate.
• the state Coastal Zone Management
• Agency. develops a list of categories of
activities proposed for authorization
under LOP procedures:
(B) The district engineer issues a
public notice advertising the proposed
list and the LOP procedures, requesting
comments and offering an opportunity
for public hearing and
(C) A 401 certIfication has been issued
or waived and. If appropriate. CZM
consistency concurrence obtained or
presumed either on a generic or
individual basis.
(2) Regional perm u.s. Regional permits
are a type of general permit as defined
In 33 CFR 322.2(1) and 33 CFR 323.2(n).
They may be Issued by a division or
district engineer after compliance with
the other procedures of this regulation.
After a regional permit has been issued.
Individual activities falling within those
categories that are authorized by such
regional permits do not have to be
further authorized by the procedures of
this regulation. The Issuing authority
will determine and add appropriate
conditions to protect the public Interest.
When the Issuing authority determines
on a case-by-case basis that the
concerns for the aquatic environment so
Indicate, he may exercise discretionary -
authority to override the regional permit
and require an individual application
and review. A regional permit may be
revoked by the issuing authority lilt Is
determined that It Is contrary to the
public Interest provided the procedures
of 325.7 of this Part are followed.
Following revocation, applications for
future activities In areas covered by the
regional permit shall be processed as
applications for individual permits. No
regional permit shall be issued for a
period of more than five years.
(3) Joint procedures. Division and
district engineers are authorized and
encouraged to develop joint procedures
with states and other Federal agencies
with ongoing permit programs for
activities also regulated by the
Department of the Army. Such
procedures may be substituted for the
procedures In paragraphs (a)(1) through
(a)(5) of this section provided that the
substantive requirements of those
sections are maintained. Division and
district engineers are also encouraged to
develop mauag ment techniques such as
Joint agency review meetings to
expedite the decision-making process.
However, in doing so. the applicant’s
rights to a full public Interest review and
• Independent decision by the district or
division engineer must be strictly -
- observed, - -
(4) Emergency procedures. Division
engineers are authorized to approve -
special processing procedures in
emergency situations. An “emergency”
is a situation which would result In an
unacceptable hazard to life, a significant
loss of property, or an Immediate.
unforeseen, and significant economic
hardship if corrective action requiring a
permit is not undertaken within a time
period less than the normal time needed
to process the application under
standard procedures. In emergency
situations, the district engineer will
explain the circumstances and
recommend special procedures to the
division engineer who will Instruct the
district engineer as to further processing
of the application. Even in an emergency
situation, reasonable efforts will be
made to receive comments from
interested Federal, state, and local
agencies and the affected public. Also,
notice of any special procedures
authorized and their rationale Is to be
appropriately published as soon as
practicable.
of the proposed 8fructures to the size of
the impacted waterway and depth of
water in the area; - - -.
(7) If the proposed activity would
occur in the territorial seas or ocean
waters, a description of the activity’s
relationship to the baseline from which
the territorial sea is measured
(8) A list of other government
authorizations obtained or requested by
the applicant, Including required
certifications relative to water quality.
coastal zone management. or marine
sanctuaries;
(9) II appropriate, a statement that the
activity Is a categorical exclusion for
purposes of N A (see paragraph 7 of
Appendix B to 33 CFR Part 230);
(10) A statement of the district
engineer’s current knowledge on historic
propertler
(11) A statement of the district
engineer’s current knowledge’on
endangered species (see I 325.2(b)(Sfl;
(12) A statement(s) on evaluation . -‘
factors (see 0 325.3(c)); -‘
- (13) Any other available Informs tioti
* 325.3 PUblIC flOtICS. which may assist Interested patties In
(a) General. The public notice Is the evaluating the likely Impact of the
primary method of advising all • proposed activity, If any. on factor
Interested parties of the proposed affecting the public interest
activity for which a permit is sought and (14) The comment period baseà on
of soliciting comments and Information - . - . .:
necessary to evaluate the probable (15) A statement that any person may
impact on the public Interest. The notice request. in writing, within the commen; .
must, therefore, Include sufficient period specified In the notice, that a
information to give a clear public hearing be held to consldeiih . ,
understanding of the nature and . application. Requests for public hearings
magnitude of the activity to generate shall state, with particularity, the .-
meaningful comment The notice should reasons for holding a public bear1ngi
Include the following Items of . (16) For non-federal applications In
Information: states with an approved CZM Plan. a
(1) Applicable statutory authority or statement on compliance with thee:
authorities;
(2) The name and address of the approved Plan; and -
applicant; . (17) In addition. for section 103 ocean -
(3) The name or title, address and dumping) activities: •
telephone number of the corps . (i) The specific location of the
employee from whom additional proposed disposal site and its physical
Information concerning the application boundaries:
may be obtained; (ii) A statement as to whether the
(4) The location of the proposed proposed disposal site has been
activity: designated for use by the Administrator,
(5) A brief description of the proposed EPA. pursuant to section 102(c) of the
activity, Its purpose and Intended use, Act: -
so as to provide sufficient information (iii) if the proposed disposal site has
concerning the nature of the activity to not been designated by the
generate meaningful com ments, Administrator. EPA. a description of the
including a description of the type of characteristics of the proposed disposal
structures, if any, to be erected on fills site and an explanation as to why no
or pile or float-supported platforms, and previously designated disposal site is
a description of the type, composition, feasible:
and quantity of materials to be (iv) A brief description of known
discharged or disposed of in the ocean, dredged material discharges at the -
(6) A plan and elevation drawing proposed disposal site; — • -
showing the general and specific site - (v) Existence and documented effects
• - location and character of all proposed , . of other authorized disposals that have
activities, including the sIze relationship - been made in the disposal area (e.g.,
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ieavy uretal backgnnmd reading and
irganiC carbon. conlent)-
(vi) An estimate of the length of time
- ng which disposal would continue at -
propoeedslte and
i) Information on the characteristics
and composition of the dredged
naterial.
(b) Public notice for generol pernnt3.
District engineers will publish a public
notice for all proposed regional general
permits and for significant modifications
to. or reissuance of. existing regional
permits within their area of jurisdiction.
Public notices for statewide regional
permits may be issued jointly by the
affected Corps districts. The notice will
include all applicable information
necessary to provide a clear
understanding of the proposal. In
addition, the notice will state the
availability of information at the district
office which reveals the Corps’ -
provisional determination that the
proposed activities comply with the
requirements for issuance of general
permits. District engineers will publish a
public notice for nationwide permits In
accordance wIth 33 CFR 330.4.
(c) Evaluation factors. A paragraph
describing the various evaluation factor&
on which decisions are based shall be
included in every public notice.
(1) Except as provided in paragraph
(c)(3) of this section. the following will
be included
The decision whether to issue a permit
be based on an evaluation of the
.iable impact Including cumulative
. npacts of th. proposed activity on the public
Interest That dedsios will reflect the
national concern for both protection and
utilization of important resources. The benefit
which reasonably maybe expected to accrue
from the proposal must be balanced against
its reasonably foreseeable detriments. All
factors which may be relevant to the
proposal will be considered Including the
cumulative effects thereof: among those are
conservation. economics. aesthetics, general
environmental concerns, wetlands, historic
properties. fish and wildlife values. flood
hazards. floodplain values, land use.
navigation, shoreline erosion and accretion.
recreation. water supply and conservation.
waler quality. energy needs. safety, food and
fiber production. mineral needs.
considerations of property ownership and, in
general. the needs and welfare of the peopie.”
(2) If the activity would involve the *
discharge of dredged or fill material into
the waters of the United States or the
transportation of dredged material for
the purpose of disposing of it in ocean
waters, the public notice shall also
indicate that the evaluation of the Inpact
of the activity on the public interest will
include application of the guidelines
promulgated by the Administrator. EPA,
(40 CFR Part 230) or of the criteria
established under authority of section
102(a) of the Marine Protection.
Research and Sanctuaries Act of 1972,
as amended (40 “R Parts 220 to 229), as
appropriate. (See 33 CFR Parts 323 and
324).
(3) In cases involving construction of
artificial islands. installations and other
devices on outer continental shelf lands
which are under mineral lease from the
Department of the Interior, the notice
will contain the following statementi
‘l ’he decision 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.”
(d) Distribution of public notices. (1)
Public notices will be distributed 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 appropriate
city and county officials, to adjoining
property owners, to appropriate state
agencies. to appropnate Indian Tribes or
tribal representatives, to concerned
Federal agencies. to local, regional and
national shipping and other concerned
business and conservation
organizations. to appropriate River
Basin Commissions. to appropriate state
and areawide clearing houses as
prescribed by 0MB Circular A—95. to
local news media and to any other
Interested party. 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 performed. the field
representative of the Secretary of the
Interior, the Regional Director of the
Fish and Wildlife Service, the Regional
Director of the National Park Service.
the Regional Administrator of the
Environmental Protection Agency (EPA),
the Regional Director of the National
Marine Fisheries Service of the National
Oceanic and Atmospheric
Administration (NOAA). the head of the
state agency responsible for fish and
wildlife resources, the State Historic
Preservation Officer, and the District
Commander, U.S. Coast Guard.
(2) In addition to the general
distribution of public notices cited
above, notices will be sent to other
addressees in appropriate cases as
follows:
(i) 11 the activity would involve
structures or dredging along the shores
of the seas or Great Lakes. to the
Coastal Engineering Research Center.
Washington. DC 20016.
(ii) If the activity would involve
construction of fixed structures or
artificial islands on the outer continental
shelf or in the territorial seas, to the
Assistant Secretary of Defense -
(Manpower. Installations, and Logistics
(ASDfMI&L)). Washington. DC 20310i
the Director. Defense Mapping Agency
(Hydrographic Center) Washington. DC
20390, Attention Code NS12. and the
Chart ,ing and Geodetic Services. NI
CCZZ2. National Ocean Service NOAA.
Rockvi lle, Maryland 20852. and to
affected military installations and
activities.
(iii) If the activity involves the
construction of structures to enhance
fish propagation (e.g., fishing reefs)
along the coasts of the United States. to
the Director. Office of Marine
Recreational Fisheries, National Marine
Fisheries Service. Washington. DC
20235.
(iv) If the activity involves the
construction of structures which may
affect aircraft operations or for purposes
associated with seaplane operations . to
the Regional Director of the Federal
Aviation Administration.
(v) if the activity would be in
connection with a foreign-trade zone, to
the Executive Secretary. Foreign-Trade
Zones Board. Department of Commerce.
Washington. DC 20230 and to the
appropriate District Director of Customs
as Resident Representative. Foreign-
Trade Zones Board.
(3) It Is presumed that all interested
parties and agencies will wish to
respond to public notices; therefore, a
lack of response will be interpreted as
meaning that there is no objection to the
proposed project. A copy of the public
notice with the list of the addresses to
whom the notice was sent will be
included In the record. If a question
develops with respect to an activity for
which another agency has responsibility
and that other agency has not responded
to the public notice, the district engineer
may request its comments. Whenever a
response to a public notice has been
received from a member of Congress.
either in behalf of a conat.itutent or
himself. the district engineer will inform
the member of Congress of the final
decision.
(4) District engineers will update
public notice mailing lists at least once
every two years.
325.4. ConditionIng of permit*.
(a) District engineers will add special
conditions to Department of the Army
permits when such conditions are
necessary to satisfy legal requirements
or to otherwise satisfy the public
interest requirement. Permit conditions
will be directly related to the impacts of,
the proposal. appropriate to the scope
and degree of those impacts. and
reasonably enforceable.
U242 - FederaL Register / Vol. 51, No. Z19 / Thurs ay, Novemoer i . -
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FederaLRegisteri. VoL SL No. 219 / Thursday,November 13, 1986 I Ruies and Regulatxon.s 41243
(1) Legal requirements which may be
5 atisfled by means of Corps permit - -
conditions include compliance with the
ø4(b)(1) guidelines, the EPA ocean
dumping criteria, the Endangered
Species Act, and requirements Imposed
by conditions on state section 401 water
quality certifications.
(2) Where appropriate, the district
engineer may take Into account the
existence of controls imposed under
other federal, state, or local programs
which would achieve the objective of
the desired condition, or the existence of
an enforceable agreement between the
applicant and another party concerned
with the resource In question. In
determining whether a proposal
complies with the 404fb)(1) guidelines.
ocean dumping criteria, and other
applicable statutes, and Is not contrary
to the public interest In such cases, the
Department of the Army permit will be
conditioned to state that material
changes in. or a failure to implement and
enforce such program or agreement. will
be grounds for modifying, suspending. or
revoking the permit.
(3) Such conditions may be
accomplished on-site, or may be
accomplished off-site for mitigation of
significant losses which are specifically
Identifiable, reasonably likely to occur,
and of importance to the human or
aquatic environment.
(b) District engineers are authorized to
add special conditions, exclusive of
paragraph (a) of this section. at the
applicant’s request or to clarify the
permit application.
(c) U the district engineer determines
that special conditions are necessary to
Insure the proposal will not be contrary
to the public Interest, but those
conditions would not be reasonably
implementable or enforceable, he will
deny the permit
(d) Bonds. If the district engineer has
reason to consider that the permittee
might be prevented from completing
work which Is necessary to protect the
public Interest, he may require the
permittee to post a bond of sufficient
amount to Indemnify the government
against any loss as a result of corrective
action It might take.
p325.5 Forms of pormnfta.
(a) General ifiscussion. (1) DA permits
wider this regulation will be in the form
of individual permits or general permits.
The basic format shall be ENG Form
1721. DA Permit (Appendix A).
(2) The general conditions Included in
ENG Form 1721 are normally applicable
to all permits: however, some conditions
may not apply to certain permits and
may be deleted by the Issuing officer.
Special conditions applicable to the
specific activity will be included in the
permit as necessary to protect the public
interest in accordance with Section 325.4
of this Part.
(b) lndividuoiperrrzits—(1) Standard
permits. A standard permit is one which
has been processed through the public
interest review procedures, including
public notice and receipt of comments.
described throughout this Part The
standard Individual permit shall be
issued using ENG Form 1721.
(2) Letters of permission. A letter of
permission will be Issued where
procedures of paragraph 325.2(e)(1) have
been followed. It will be In letter form
and will Identify the permittee, the
authorized work and location of the
work, the statutory authority, any
limitations an the work, a construction
time limit and a requirement for a report
of completed work. A copy of the
relevant general conditions from ENG
Form 1721 wIll be attached and will be
incorporated by reference Into the letter
of permission.
(c) General pemiits—(1) Regional
permits. Regional permits are a type of
general permit They may be issued by a
division or district engineer after
compliance with the other procedures of
this regulation. If the public interest so
requires. the Issuing authority may
condition the regional permit to require
a case-by-case reporting and
acknowledgment system. However, no
separate appLications or other
authorization documents will be
required.
(2) Nationwide permits. Nationwide
permits are a type of general permit and
represent DA authorizations that have
been issued by the regulation (33 CFR
Part 330) for certain specified activities
nationwide. If certain conditions are
met, the specified activities can take
place without the need for an individual
or regional permit
(3) Programmatic perrn its.
Programmatic permits are a type of
general permit founded on an existing
state, local or other Federal agency
program and designed to avoid
duplication with that program.
(d) Section 9 permits. Permits for
structures in Interstate navigable waters
of the United States under section 9 of
the Rivers and Harbors Act of 1899 will
be drafted at DA leveL
f 325.6 Duration of permits.
(a) GeneraL DA permits may
authorize both the work and the
resulting use. Permlt.s continue In effect
until they automatically expire or are
modified, suspended, or revoked.
(b) Structzzras. Permits for the
existence of a structure or other activity
of a permanent natuñ are usually for an
indefinite duration with no expiration
date cited. However, where a temporary
structure Is .authorjzed. or where
restoration of a waterway is
contemplated. the permit will be of
limited duration with a definite
expiration date.
(c) Works. Permits for construction
work, discharge of dredged or fill
material, or other activity and any
construction period for a structure with
a permit of indefinite duration under
paragraph (b) of this section will specify
time limits for completing the work or
activity. The permit may also specify a
date by which the work must be started,
normally within one year from the date
of issuance. The date will be established
by the issuing official and will provide
reasonable tlmeebased on the scope
and nature of the work Involved. Permits
Issued for the transport of dredged
material far the purpose of disposing of
itln ocean waters will specify.
completion date for the disposal not to
exceed three years from the dateol
permit Issuance. -
(d) tensions of time. An
authorization or construction period will
automatically If the permittee
fails to request and receive an extension
of time. Extensions of time may be -
granted by the district engineer. The’
permittee must request the extension
and explain the basis of thi request,
which will be granted unless the district
engineer determines that an extension
would be contrary to the public Interest
Requests for extensions will be
processed In accordance with the
regular procedures of 325.2 of this Part,
Including Issuance of a public notice,
except that such processing Is not
required where the district engineer
determines that there have been no
significant changes In the attendant
circumstances since the authorization
was issued. -
(e) Maintenance dreo gin.g. If the
authorized work Includes periodic
maintenance dredging. an expiration
date for the authorization of that
maintenance dredging will be Included
In the permit The expiration date, which
in no event is to exceed ten years from
the date of Issuance of the permit, will
be established by the issuing official
after evaluation of the proposed method
of dredging and disposal of the dredged
material In accordance with the.
requirements of 33 CFR Parts 320 to 325.
In such cases, the district engineer shall
require notification of the maintenance
dredging prior to actual performance to
Insure continued compliance with the
requirements of this regulaUon and 33
CFR Parts 320 to 324. If the permittee
desires to continue maintenance
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1244 rederIe ister’/ Vol. 51 No 2 9 / Thi.rsday,Nôvémnber 13, 19861 R i1es and Regtion s ;
.redglng beyond the expiration date, he
inst request a new pirniiL The
lee should be advised to apply for
. permit six months prior to the
a wishes to do the maintenance
325.7 ModfllCatIon, suspension, or’
evoc t1on of penatta.
(a) General. The district engineer may
aevaluate the circumstances and
:onditlons of any permiL Including
egional permits. either on his own
notion, at the request of the permittee.
r a third party, or as the result of
,eriodlc progress inspections. and
nitiate action to modify, suspend, or
revoke a permit as may be made
necessary by considerations of the
public interest. In the case of regional
permits, this reevaluation may cover
individual activities, categories of
activities, or geographic areas. Among
the factors to be considered axe the
extent of the petmittee’s compliance
with the terms and condition. of the
permit whether or not circumstances
relating to the authorized activity have
changed since the permit was issued or
extended. and the continuing adequacy
of or need foe the permit conditions; any
significant objections to the authorized
activity which were not earlier
constdered revisions to applicable
statutory and/or regulatory authorities;
and the extent to which modification.
iinalbn.ãrother action would’
ersely affect plans. Investments and
uona thepermittee has reasonably
made or taken in reliance on the permit.
Significant Increases in’scope of a
permitted activity will be processed as
new applications for permits in
accordance with 325.2 of this Part, end
not as modifications under this section.
(b) Modification. Upon request by the
permittee or. as a result of reevaluation
of the circumstances and conditions of a
permit, the district engineer may
determine that the public Interest
requires a modification of the terms or
conditions of the permit. In such cases.
the district engineer will hold informal
consultations with the permittee to
ascertain whether the terms and
conditions can be modified by mutual
agreement If a mutual agreement is
reached on modification of the terms
and conditions of the permit. the district
engineer will give the permittee written
notice of the modification, which will
then become effective on such date as
the district engineer may establish. In
the event a mutual agreement cannot be
reached by the district engineer and the
permittee. the district engineer will
proceed in accordance with paragraph
(c) of this section ii imniediate
‘spensiou is warranted. In cases where
immediate suspension is not warranted
but the district engineer determines that
the permit should be modified, he will
notify the permittee of the proposed
modification and reasons therefor. and
that he may request a meeting with the
district engineer and/or a public
hearing The modification will become
effective on the date set by the district
engineer which shall be at least ten days
after receipt of the notice by the
permittee wiless a hearing or meeting Is
requested within that period. U the
permittee fails or refuses to comply with
the modification, the district engineer
will proceed in accordance with 33 CFR
Part 328. The district engineer abal]
consult with resource agencies before
modifying any permit terms or
conditions, that would result In greater
impacts. for a project about which that
agency expressed a significant Interest
In the term. condition, or feature being
modified prior to permit issuance.
(c) Suspe,,szon. The district engineer
may suspend a permit after preparing a
written determination and finding that
immediate suspension would be in the
public interest. The district engineer will
notify the permittee in writing by the
most expeditious means availabie that
the permit has been suspended with the
reasons therefor. and order the
permittee to stop those activities
previously authorized by the suspended
permit. The permittee wül also be
advised that foUowing this suspension a
decision will be made to either reinstate.
modify, or revoke the permit. and that
he may within 10 days of receipt of
notice of the suspension, request a
meeting with the district engineer andJ
or a public hearing to present
Information in this matter. ha hearing Is
requested. the procedure. prescribed in
33 CFR Part 3V will be foUowed. After
the completion of the meeting or 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 or meeting Is
requested). the district engineer will
take action to reinstate, modify, or
revoke the permit.
(d) Revocation. Following completion
of the suspension procedures in
paragraph Cc) of this section. II
revocation of the permit is found to be in
the public interest, the authority who
made the decision on the original permit
may revoke it. The perinittee will be
advised in writing of the final decision.
(e) Regioii a) permit.s. The issuing
official may. by following the
procedures of this section. revoke
regional permits for individual activities.
categories of activities, or geographic
areas. Where groups of pernuttees are
involved, such as for categories of
activities or geographic areas, the
informal discussions provided In
paragraph (b) of this section may be
waived and any written notification nay
be made through the general public
notice procedures of this regulation if a
regional permit is revoked, any
perrnittee may then apply for an
individual permit which shall be
processed in accordance with these
regulations.
b325J Authorttytolesu.ordenypenu ilts.
(a) Genera). Except as otherwise
provided 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 authorized
representatives to Issue or deny permits
for dams or dikes in Intrastate waters of
the United States pursuant to section 9
of the Rivers and Harbors Act of 2899:
for construction or other work in or
affecting navigable waters of the United
States pursuant to section 10 of the
Rivers and Harbors Act of 1899: for the
discharge of dredged or fill material into
waters of the United States pursuant to
section 404 of the Clean Water Act or
for the transportation of dredged
material for the purpose of disposing of
it Into ocean waters pursuant to section
103 of the Marine Protection. Research
and Sanctuaries Act of 1972. as
amended, The authority to issue or deny
permits in Interstate navigable waters of
the United States pursuant to section 9
of the Rivers and Harbors Act of March
3. 1899 has not been delegated to the
Chief of Engineers or his authorized
representatives.
(b) District engineer’s authority.
District engineers are authorized to
issue or deny permits hi accordance
with these regulations pursuant to
sections 9 and 10 of the Rivers and
Harbors Act of 1899: section 404 of the
Clean Water Act; and section 103 of the
Marine Protection. Research and
Sanctuaries Act of 1972, as amended, in
all cases not required to be referred to
higher authority (see below). It is
essential to the legality of a permit that
It contain the name of the district
engineer as the issuing officer. 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. In cases where
permits are denied for reasons other
than navigation or failure to obtain
required local, state, or other federal
approvals or certifications, the
Statement of Findings must conclusively
justifya denial decision. District
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Federal Register / Vol. 51. No. 219 / Thursday. November 13. 1986 / Rules arid Regulations
41245
engineers are authorized to deny
permits without issuing a public notice
or taking other procedural steps where
reqwred local. state. or other federal
permits for the proposed activity have
been denied or where he determines
that the activity will clearly interfere
with navigation except in all cases
required to be referred to higher
authority (see below). District engineers
are also authorized to add, modify, or
delete special conditions in permits in
accordance with 325.4 of this Part,
except for those conditions which may
have been imposed by higher authority.
and to modily, suspend and revoke
permits according to the procedures of
§ 325.7 of this Part. District engineers
will refer the following applications to
the division engineer for resolution:
(1) When a referral is required by a
written agreement between the head of
a Federal agency and the Secretary of
the ArmY ’,
(2) When the recommended decision
is contrary to the written position of the
Governor of the state in which the work
would be performed;
(3) When there is substantial doubt as
to authority, law, regulations, or policies
applicable to the proposed activity;
(4) When higher authority requests the
application be forwarded for decision:
or
(5) When the district engineer is
precluded by law or procedures required
by law from taking final action on the
application (e g. section 9 of the Rivers
and Harbors Act of 1899, or territorial
sea baseline changes).
(c) Division engineer’s authority.
Division engineers will review and
evaluate all permit applications referred
by district engineers. Division engineers
may authorize the Issuance or denial of
permits pursuant to section 10 of the
Rivers and Harbors Act of 1899: section
404 of the Clean Water Act: and section
103 of the Marine Protection, Research
and Sanctuaries Act of 1972. as
amended and the inclusion of
condi’iorc :n accordance with § 3254 of
this Par ii 31! cases not required to be
referred to the Chief of Engineers.
Division engineers will refer the
following applications to the Chief of
Engineers for resolution:
(1) When a referral is required by a
written agreement between the head of
a Federal agency and the Secretary of
the Army;
(2) When there is substantial doubt as
to authority, law, regulations, or policies
applicable to the proposed activity;
(3) When higher authority requests the
application be forwarded for decision;
or
(4) When the division engineer is
precluded by law or procedures required
by law from taking final action on the
application. .-. -
{ 325.9 AuthorIty to determine
jurisdiction.
District engineers are authorized to
determine the area defined by the terms
“navigable waters of the United States”
and “waters of the United States”
except.’
(a) When a determination of
navigability is made pursuant to 33 CFR
329.14 (division engineers have this
authority); or
(b) When EPA makes a section 404
jurisdiction determination under its
authority.
f 325.10 PublicIty.
The district engineer will establish
and maintain a program to assure that
potential applicants for permits are
Informed of the requirements of this
regulation arid of the steps required to
obtain permits for activities In waters of
the United States or ocean waters.
Whenever the district engineer becomes
aware of plans being developed by
either private or public entities which
might require permits for
Implementation, he should advise the
potential applicant In writing of the
statutory requirements and the
provisions of this regulation. Whenever
the district engineer is aware of changes
in Corps of Engineers regulatory
jurisdiction, he will issue appropriate
public notices.
Appendix A—Permit Form and Special
Conditions
A. Permit Form
Department of the Army Permit
Permittee
Permit No
Issuing Office
NoIe.—The term “you” and Its derivatives,
as used in this permit means the permlttee or
any future transferee. The term “this office”
refers to the appropnate district or division
office of the Corps of Engineers having
Jurisdiction over the permitted activity or the
appropriate official of that office acting under
the authority of the commanding officer.
You are authorized to perform work in
accordance with the terms and conditions
specified below,
Project Description: (Describe the
permitted activity and its intended use with
references to any attached plans or drawings
that are considered to be a part of the project
description, include a description of the types
and quantities of dredged or fill materials to
be discharged in jurisdictional waters.)
Project Location: (Where appropriate,
provide the names of and the locations on the
waters where the permitted activity and any
off-site disposals will take place. Also, using
name, distance, and direction, locate the
permitted activity In reference to a nearby
1andmarii such as a town or city.)
- Permit Conditions: -
General Conditions:
I The time limit far completing the work
authorized ends on __________ 11 you find
that you need more time to complete the
authorized activity, ubinit your request for a
time extension to this office for consideration
at least one month before the above date is
reached.
2. You must maintain the activity
authorized by this permit in good condition
and in conformance with the terms and
conditions of this permit You are not relieved
of this requirement if you abandon the
permitted activity, although you may mske a
good faith ‘ransfer to a third party In
compliance with Caner.] CondItion 4 below.
Should you wish to cease to maintain the
authorized activity or should you desire to
abandon It without a good faith transfer, you
must obtain a modificatIon of this permit
from this office, which may require
restoration of the area. - -
3.11 you discover any previously nnuinowu
historic or archeological remains while -
accomplishing the activity authorized by this
permit, you must immediately notify this
office of what you have found. We will
initiate the Federal and state coordination -
required to determine lithe remains warrant
a recovery effort or If Lb. site is eligIbIs for
listing in the National Register of Historic’
Places, . . S ‘., %‘ . -
4.11 you sell the property auodated with
this permit, you must obtain the sipatore at
the new owner in the spice provided and’
forward a copy of the permit to this office to
validate the transfer qf this authorization.
5. If a conditioned water quality,
certification has been Issued for your project,
you must comply with Lbs conditions
specified in the certification as special,
conditions to this permit For your
convenience, a copy of the certification is /
attached If It contains inch conditions.
6. You must allow representatives from this
office to inspect the authorized activity at
any time deemed necessary to ensur, that it -
is being or has been accomplished m i
accordanc, with the terms and conditions of
your permit. - . .
Special Conditions: (Md special -
conditions as tequired in this spice with
reference to a continuation sheet If
necessary.)
Further Information:
1. Congressional Authorities: You have
been authorized to undertake the activity
described above pursuant to:
Section lOof theRiver . and Harbors
Act of 1899 (33 U.S.C 403).
Section 404 of the Clean WaterAct (33
U S.C. 1344). ‘ -
Section 103 of the Marine Protection,
Research and Sanctuaries Act of 1972(33
U.S.C 1413). . - -
2. LimIts of this authorization.
a. This permit does not obviate the need to
obtain other Federal, state, or local -
authorizations required by law.
b. This permit does not giant any property’
rights or exclusive privileges. .‘‘.
c. This permit does not authorize any injury
tothepropertyorrightsofothers;
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- 41246 Fad aI Register J Vol. 51. iJo. __________
- d. This permit does riGt anihorl - -
interference with any ax ng OrProPoled
Feeralpeolect. -- -
, ,fpedezaIL abi1ily.In1a *thi*th15
Go’ve meat does not--
ime any IlahiE ty foe lbs foflow1z .
a. Damages totbs permitted profect or ales (District Engineer)
thereof as a resull of other permitted or
unpermitted activities or from natural causes.
b. Damages to the permitted project or ma.
thereof on a remit of current or future
activities rmdestakvi by or on behalf of the
United Staten in the pabhcI . .t 5t
C. Damage ’ to persons . property. or to other
permitted or unpermitted activities or
•ttvchul 5$ caused by the activity authorized
by this peiwdt.
d. De.1 or caas act*ofl ddiaenciea
associated with the pomutted work. _______
e. Damage claima .seocmted with any
future mOd*1 *I . flS 5iCil oi ?C 3I1O (Transferee)
of this permM.
4. Rellertos o n Appihefli’s Daim Tb.
determination of this office thai issuance of
this permit La not contrary to the public
1nter won made La rsli on lb.
InforimUot mii prowtded.
& RsuabsatiCfl of Permit Decision. This
office ma reevaluata Ito daci” o ihia
permit at soy time the clrorahlSnCU
wurant. CizcumatanCe 5 that could requu* a
reevuluatioft include. but are not limited to.
the IoUow1 e . -
a. You fafl to comply wait the terms and
condaloceof this permit -
b. The information provided by you In
support of your permit applIcation proves to
have bean false. incomplete. or inaccurate
($ee4abOT eI.
C. SignifIcant new information surfaces
which this of ca d ot consider hi reaching
bs — — interest decision.
Such a ne ehsuution may romli In a
datermMa Oft that It Ii approiirlate to use the
suspension. moth Cat iOn. and revocation
precadwe. wwtebted 1n33 R 325.7 or
enforeement procedures such as those
contained ta32 CFR 3 4 and 3265. The
ivfSru 5i d .&..niut procedur provide
for the hu— ’ of an adwhus atiVe order
requfrmn p to p y with the terms and
conditima of yma’ p dL a d ice the _______
initiation of legal action where appropriate.
‘You will be repwed to pay for any corrective
me.511se ordered by this office. and If you
fail to comply with such directive, this office
may In certaIn situation’ (such on those
specified in 33 CTR 206.170) accomplish the
cozzectivs measures by contract or otherwise
and bill you for lb. coat.
8. ExtensiOns. General conditron 1
umahhehe& a time boil for the completion of
the activity suthonsed by this. permit Unless
there art Waao.s*aflCeI reqidrfrsg either a
prompt completion of the authorized activity
or a reevaluation of the public Internet ____
decision, the Corps will normally give
favorable consideration to a request for an
extension of this tints limit.
Your signatule below, as permnittee.
Indicates that you accept and agree to
comply with the terms and conditions of this
permit
(Pecm i t t e e
- YOU must take the actions reqi ixedt0 -
record this permit, with the Registrar of Deeds
or other appropriate official charged with the
- responsibthtY for maintaining records of title
to or interest in real property.
Appendix B— .L’Reserved) (For Future
NEPA Regulation)
Appendix C _.1Reserved1 (‘For Historic
Properties Regulation)
PART 32$_ENFORCEMENT
Sec.
325.1 Purpose
328.2 Policy.
328.3 Unauthorized activities.
328.4 SupervisiOn of authorized activities.
3285 Legal action.
Authority: 33 U.s C. 401 et seq.: 33 U.S C.
1344:33 U.S.C. 1413.
§ 328.1 Purpose.
This Part prescribes enforcement
policies ( 326.2) and procedures
applicable to activities performed
without required Department of the
Army permits ( 328.3) and to activities
not in compliance with the terms and
conditions of Issued Department of the
Army permits (* 326.4). Procedures for
Initiating lcgai actions are prescribed in
§ 328.5. No thing contained in this Part
shall establish a non.discretiOflarY duty
on the part of district engineers nor shall
deviation from these precedures give
rise to a private right of action against a
district engineer.
§328.2 Policy.
Enforcement, as part of the overall
regulatory program of the Corps. Is
based on a policy of regulating the
waters of the United States by
discouraging activities that have not
been properly authorized and by
requiring corrective measures, where - - -
appropriate, to ensure those waters are
not misused and to maintain the
integrity of the program. There are
several methods discussed in the
remainder of this part which can be
used elther singly or in combination to
implement this policy, while making the
most effective use of the enforcement
resources available. As A has
independent enforcement authority
under the Clean Water Act for
unauthorized discharges. the district
engineer should normally coordinate -
with EPA to determine the most
effective and efficient mariner by which
resolution of a section 404 violation C fl
be achieved. -
§ 326.3 UnauthoriZed actlvftle$.
(a) Surveillance. To detect
unauthorized activities requiring ‘ -
permits, district engineers should ma ) e
the best use of all available resourceS’
(Date) -
This permit becomes effective when the
Federal officuL designated to act for the
Sea’etary of the’Armny. has signed below.
(Date)
When the structures or work authorized by
this permit are still in existence at the time
the property is transfeued. the terms and
conditions of this permit will continue to be
binding on the new owner(s) of the property.
To validate the transfer of thi. permit and the
associated llabihtle. associated with
compliance with its terms and conditions.
have the tran.sleree sign arid date below.
(Date)
a. Specie. 1 Conditions. No special
conditions will be prepemated on the permit
form. Tb. following and other special
condition’ should be added, as appropoate.
In the space provided after the general
conditions or on a referenced continuation
sheet
1. Your me of the permitted activity must
not Interfere with the publiCs right to he-.
nsvmgatioo on afl navigable waters of the
United Stales.
2. You mast have a copy of this pernut
available on the vessel used fur the
auThorized transportation and disposal of
dredged materiaL
3. Yon must advise thi, office In writing, at
leest two weâs before yeta start
maintenance dredging act vlUea under the
authority of this permit.
4. You must Install and maintain, at your
expense. any safety lights and signals
prescribed by the United Stales Coast Guard
(USCG). through regulations or otherwise. on
your authorimd fecibbes. The USCG maybe
reached at the following address and
telephone nnmhw
m. coodluan below will be used when a
Corps permit authormas an artificial reef, an
aerial trananussion line, a submerged cable
or pipeline, or a structure on the outer
continental shelL
Natioaa.t Ocean Service (NOS) baa been
notified of thia authorization. You must notify
NOS and this office in writing, at least two
weeks before you begin work and upon
completion of the activity authorized by this
permit Your notification of completion must
oclude a drawing which certifies the location
and configuratIon of the completed activity (a
certified drawing may be used).
Notifications to NOS will be sent to the
following ad&ese The Director. National
Ocean Service (NIx 222). Rockville.
Maryland 20852.
6. The following condition should be used
for every permit where legal recordatlon of
the permit would be reasonably practicable
and recordation could put a subsequent
purchaser or owner of property on notice of
permit conditions. . -
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. - -Federal.Register I VoL 51.-No. 219 / Thursday. No ’ember 13. 1988 I Rules and Regulations 41247
Corps employees; members of the -
public; arid representatives of state. -
local, and other Federal agencies should
be encouraged to report suspected
inolations. Additionally, district
engineers should consider developing
joint surveillance procedures with
Federal. state, or local agencies having
similar regulatory responsibilities,
special expertise. or interest.
(b) Initial investigation. District
engineers should take steps to
investigate suspected violations in a
timely manner. The scheduling of
investigations will reflect the nature and
location of the suspected violations, the
anticipated impacts, and the most
effective use of inspection resources
available to the district engineer. These
Investigations should confirm whether a
violation exists, and if so, will identify
the extent of the violation and the
parties responsible.
(c) Formal notifications to parties
responsible for violations. Once the
district engineer has determined that a
violation exists, he should take
appropriate steps to notify the
responsible parties. -
(1) If the violation involves a project
that is not complete. the district
engineer’s notification should be in the
form of a cease and desist order
prohibiting any further work pending
resolution of the violation in accordance
with the procedures contained in this
part. See paragraph (c)(4) of this section
for exception to this procedure.
(2) If the violation involves a
completed project. a cease and desist
order should not be necessary.
However, the district engineer should
still notify the responsible parties of the
violation.
(3) All notifications, pursuant to
paragraphs (c) (1) and (2) of this section.
should identify the relevant statutory
authorities, indicate potential
enforcement consequences. and direct
the responsible parties to submit any
additional information that the district
engineer may need at that time to
determine what course of action he
should pursue in resolving the violation.
further information may be requested. as
needed, in the future.
(4) In situations which would, ifs
violation were not involved, qualify for
emergency procedures pursuant to 33
CFR Part 32.5.2(e)(4), the district engineer
may decide it would not be appropriate
to direct that the unauthorized work be
stopped. Therefore, in such situations,
the district engineer may, at his
discretion, allow the work to continue.
subject to appropriate limitations and
conditions ashe may prescribe, while
the violation Is being resolved in
accordance with the procedures
contained in this part. - --
(5) When an unauthorized activity
requiring a permit has been undertaken
by American Indians (including Alaskan
natives. Eskimos. and Aleuts, but not
including Native Hawaiians) on
reservation lands or in pursuit of
specific treaty rights, the district
engineer should use appropriate means
to coordinate proposed directives and
orders with the Assistant Chief Counsel
for Indian Affairs (DAEN—CCI).
(6) When an unauthorized activity
requiring a permit has been undertaken
by an official acting on behalf of a
foreign government, the district engineer
should use appropriate means to
coordinate proposed directives and
orders with the Office, Chief of
Engineers. ATrN: DAEN-CCX.
(d) Initial corrective measures. (1) The
district engineer should. In appropriate
cases, depending upon the nature of the
impacts associated with the
unauthorized, completed work, solicit
the views of the Environmental
Protection Agency’, the U.S. Fish and
Wildlife Servlcr the National Marine
Fisheries Service, and other Federal.
state, and local agencies to facilitate his
decision on what initial corrective
measures are required. If the district -
engineer determines as a result of his
investigation, coordination, and
preliminary evaluation that initial
corrective measures are required, he
should issue an appropriate order to the
parties responsible for the violation. In
determining what Initial corrective
measures are required. the district
engineer should consider whether
serious jeopardy to life, property, or
Important public resources (see 33 CFR
Part 320.4) may be reasonably
anticipated to occur during the period
required fur the ultimate resolution of
the violation. In his order, the district
engineer will specify the Initial
corrective measures required and the
time limits for completing this work. In
unusual cases where Initial corrective
measures substantially eliminate all
current and future detrimental impacts
resulting from the unauthorized work.
further enforcement actions should
normally be unnecessary. For all other
- - cases, the district engineer’s order
should normally specify that compliance
with the order will not foreclose the
Government’s options to Initiate
appropriate legal action or to later
require the submission of a permit
application. -
(2) An order requiring Initial
corrective measures that resolve the
violation may also be Issued by the
district engineer In situations where the
acceptance or processing of an after-the-
fact permit application is prohibited or
considered not appropriate pursuant to
§ 328.3(e)(1) (iiiHlv) below. However.
such orders will be issued only when the
district engineer has reached an
independent deternunation that such
measures are necessary and
appropriate.
(3) It will not be necessary to Issue a
Corps permit in connection with initial
corrective measures undertaken at the
direction of the district engineer.
(e) After-the-fact permit applications.
(1) FollowIng the completion of any
required initial corrective measures. the
district engineer will accept an after-the-
fact permit application unless he
determines that one of the exceptions
listed in subparagiaphs 1—tv below is
applicable. Applications for after-the-
fact permits will be processed In
accordance with the applicable
procedures In 33 CTR Parts 320-325.
SItuations where no permit application
will be processed or where the
acceptance of a permit application must
be deferred are as follows: -
(I) No permit application will be
processed when restoration of the.
waters of the United States has been
completed that eliminates corTent and
future detrimental Impacts to the -.
satisfaction of the district engineer.
(II) No permit application will be
accepted In connection with a violation
where the district engineer determines
that legal action Is appropriate
( 326.5(a)) until such legal action has
been completed.
(ill) No permit application will be
accepted where a Federal. state. or local
authorization or certification, required
by Federal law, has already been
denied.
(Iv) No permit application will be
accepted nor will the procesaing of an
application be continued when the -
district engineer Is aware of -
enforcement litigation that has been
Initiated by other Federal. state, or local
regulatory agencies, unless he
determines that concurrent processing of
an after-the-fact permit application Is
clearly appropriate. -
(2) Upon completion of his review in
accordance with 33 CFR Parts 320-325,
the district engineer will determine If a
permit should be Issued, with special
conditions If appropriate, or denied. In
reaching a decision to Issue, he must
determine that the wor’ involved Is not
contrary to the public Interest, and If
section 404 Is applicable, that the work
also complies with the Environmental
Protection Agency’s section 404(b)(1)
guidelines. 11 he determines that a denial
Is warranted, his notification of denial
should prescribe any final corrective
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41248 Federal - Regi Ster-I Vol 51. No. 219 / Thursday. November 13, 1986 / Rules and RegutatiorS
athonl requsre His notification should
also estab zsh a reasorzab4e period op---
- ne for the applicant to complete &nch-
‘orm unlese bedetemiines that ñntber
Formation required before the
orrecbve meesures can be apecifled. if
further uiformahoo is reqeired. the final
corrective measures may be specified at
a later date. 11 an applicant refuses to
underta prescribed corrective actions
ordered sabaeq.ent to p rm denial or
refuses to accept acozidilioned permit.
the dis cL enginnar may initiate legal
action In accordance with 328 5.
(1) ciim1 i ng steps. The procedural
slepsIn this aethoaare In theconnal
sequence-. I 1owever. these regpilationa
do not prohihit the atrumllruog of the
process througiir the
combining of steps.
(g) Co thnoJJon with PA 1 all
cases where the district en2Jnner ia
aware that EPA is considering
enlo c’ n’ tInn , he should
coordinate with A. to attempt to avoid
conflict or dupflCation. Such
coordination applies to interim
protective measures and alter-the-fact
permittla as well as to appropriate
legal enforcement actions.
320.4 jpssv ton ot thor 4
_ -
(a) h ect aa District engineers wilL
at their diaore1Icn take reasonable
ea ee to inspect permitted activities.
.requlred.tocw.tuethat the..
ctlvitles comp)ywtth specified term.
and con ticns. To mippismeni
Inspections by their enforcement
persmmeL dlsatd en eers should
ccc igS their otherpersoenek
members of the peblt and Interested
state, Iocs}..and other Federal agency
representatives to report suspected
violations of Corps perazits. To facilitate
Inspections. diafr angineere will. In
approp te cases. requIre that copies of
ENG Form 4330 be posted conspicuously
at the sites of authorized activities and
will make avaiisble to all interested
persons In.formaticn on the terms and
conditinos of issned permits. The U.S.
Coast Cuard will inspect permitted -
ocean dumping activitIes pa imit to
section IIP (c) of the Marine Protection.
Research and Sanctnades Act of 1 Z
as
(b) hzspecLio i liazitctkmr. Section
328.4 does not establish a non—
discretionary duty to Inspect permitted
activities for safety ’. round engim’ering
prathces. or Iniederence with other
permitted or unpermitted structures or
uses in the area. Furth& ’ . the regulations
Im em fing the Corps regulatory
proçam do not establish a non- -
discretionary duty to inspect permitted
acthri&s for any otherpurpose.
(c) Inspec on expenses. The expenses
incurred tn connection with the
inspection of permitted activities will
normally be paid by the Federal
Government tmless daily supervision or
other unusual expenses are involved. In
such unu al cases . the district engineer
may cozslitwn peruu to require
permit tees to pay inspection expenses
porsuant to the authority contained in
Section 9701 of Pub L 97-2w (33 U.S.C.
9701). The collection and disposition of
inspection expense funds obtained from-
appllcanb will be administered in
accordance with the relevant Corp.
regulations governing such funds.
(d p/un7ce If a district
engineer cleternuiie . that a permittee has
violated the terms or conditions of the
permit and that the violation is
sufficiently serious to require an
enforcement action, then ho should.
unles . at his discretion he deems It
inappopriate (1) First contact the
permitte (2) request corrected plans
reflecting actuel work’. If needed; and (3)
attempt to resolve the violation.
Resolution of the violation may take the
form of the permitted project being
voluntarily brought Into compliance or
of a permit modificatIon (33 CFR
325.7(b)). if a metuafly a eeab)e
solution carmot be reached, a written
order requiring compliance should
normally be Issued and delivered by-
personal service. Imoance of an order Is
not. however’. a prerequisit . to legal
action. if an order Is Issued. It Will
specify a time period of not more than
30 days for bringing the permitted
project into compliance. and. copy wilt
be sent to the appropriate stats official
pursuant to section 404(sJ(2) of the
Clean Water Act. If the peunittee falli
to comply with the order within the
specified period of tune, the district
engetees may consider using the
suspension/re vocation procedures In 33
CFR 325.7(c) and/or he may recommend
legal action m accordance with 326 $. -
320.5 LegatactiOs.
(a) G e.mL For cases the district
engineer determines to be-appropriate.
he will recommend criminal or civil
actions to obtain permities for
violations, compliance with the orders
and directives he has Imued pursuant to
§1326.3 and 326.4. or other relief as
appropiate. Appropriate cases for
criminal or vil action Inc lude, but are -
not hnnted to. violations which. In the
district engineer’s opinion, are willful.
repeated. flagrant. or of substantial
Impact.
(b)PteparadaROfQiSe. If the district’
engineer determines that legal action is
appropriate, be will prepare a litigation
report or such other doonnmntation that
he and The local US Attorney have -
mutually agreed to. which contains an
analysis of the information obtained
during his investigation of the violation
or during the processing of a permit
application and a recommendation of
appropnate legal action. The litigation
report or alternative documentation will
also recommend what. it any.
restoration or miligetive measures are
required and will provide the rationale
for any such recommendation.
(c)Referro) So the Focal IfS Attorney
Except as provided in paragraph (d) of
this section, district engineers are
authorized to refer cases directly to the
U.S. Attorney. Because of the unique
legal system in the That Territones. all
cases over which the Deportment of
UStICa has no anthority will be referred
to the Attorney General for the trust
Tern tories. Information copies of all
letters of referral shall be forwarded to
the appropriate divisIon cmmeek the -
- Offlce.Chiefofflzrgineer s , ATfl k
DAEN—CCIC. the Office of the Assistant
Secretary of the Army (Clvi ) Works),
and the Chief of the Environmental
Defense Section. Lands and Natural
RwveaDIviafoii, U.S. Department of
Justice. -
(d)Referroitothe Office. Chief of
Engineers. District engineers wdl
forward litigation reports with
recommendations through division
offices to the Office. Chief of gineers. -
ATTN DAEN-C(X. for all cases that
qualify under the following criteri&
(1) SignIficant precedentia) or
controversial questions of law or fact
(2) Requests for elevation to the-
Washington level by the Department of
Juslice
(3) VIolations of section 9 of the
Rivers and Harbors Act of 189
(4) Violations of section 103 the
Ma r ine Protection, Research and
Sanctuaries Act of i9
(5) All cases Involving violations by.,
American Indiana (original of htigation
report to DAEN-CCI with copy to
DAEN-CCK) on reservation lands or in -
pursuit of specific treaty rights;
(6) All cases civolving violations by
officiala acting on behalf of foreign
governments; and
(7) Coses requiring action pursuant to
paragraph (e) of this section.
(e) Legal option not ovmlabie. In
cases where the local U.S. Attorney
declines to take legal action, it would W
appropriate for the district engineer to
close the enforcement case record
unless he believes that the case
warrants special attention. In that - -
situation, he Is encouraged to forward s
litigation report to the Office. Chief of
Eng ineer 5..ATl l1A 4 -C CKfor
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Federal Register / VoL 51, TNo. 219 I Thursday. November 13, 1986 I -Rules_and Regulations 41249
chrect coordination through the Office of
the Assistant Secretary of the Army
(Civil Works) with the Department of
Justice. Further the case record should
not be closed If the district engineer
anticipates that further administrative
enforcement actions, taken In
accordance with the procedures
prescribed In this part, will Identify
remedial measures which, If not
complied with by the parties responsible
for the violation, will result in
appropriate legal action at a later date.
PART 327—PUBUC HEARINGS
Sec.
327.1 Purpose.
327.2 Applicability.
327.3 DefInitions.
327.4 General policieL
327.5 Presiding officer.
327.6 Legal adviser.
3V.7 Representation.
327.5 Conduct of heailngs.
327.6 FlUng of .naaipt of the public
hearing.
327.10 Authority of the presiding officer.
327.11 Public notice.
Authozlty 33 U.S.C. 1344; 33 U.S.C. 1413.
327 1 Purpose.
This regulation prescribes the policy.
practice and procedures to be followed
by the U.S. Arm ’ Corps of Engineers In
the conduct of public hearings
conducted in the evaluation of a
proposed DA permit action or Federal
project as defined in * 327.3 of this Part
including those held pursuant to section
404 of the Clean Water Act (33 U.S.C
1344) and section 103 of the Marine
Protection. Research and Sanctuaries
Act (MPRSA). as amended (33 U.S.C.
1413).
§ 327.2 ApplicabilIty.
This regulation Is applicable to all
divisions and districts responsible for
the conduct of public hearings.
327.3 DefinItions.
(a) Public hearing means a public
proceeding conducted for the purpose of
acquiring information or evidence which
will be considered in evaluating a
proposed DA permit action, or Federal
project, and which affords the public an
opportunity to present their views, -
opinions, and Information çn such
permit actions or Federal projects.
(b) Permit action. as used herein
means the evaluation of and decision on
an application for a DA permit pursuant
to sections 9 or 10 of the Rivers and
Harbors Act of 1899, section 404 of the
Clean Water Act, or sectIon 103 of the
MPRSA. as amended, or the
modification. suspension or revocation
of any DA permit (see 33 CPR 325.7). -.
- (c) Federal project means a Corps of
Engineers project (work or activity of
any nature for any purpose which Is to
be performed by the Chief of Pngineers
pursuant to Congressional
authorizations) Involving the discharge
of dredged or fill material into waters of
the United States or the transportation
of dredged material for the purpose of
dumping it In ocean waters subject to
section 404 of the Clean Water Act, or
section 103 of the ? WRSA.
{ 327.4 General policies.
(a) A publIc hearing will be held in
connection with the consideration of a
DA permit application or a Federal
project whenever a public hearing Is
needed for making a decision on such
permit application or Federal project. In
addition, a public hearing may be held
when It Is proposed to modify or revoke
a permit. (See 33 CFR 325.7).
(b) Unless the public notice specifies
that a public hearing will be held, any
person may request, In writing, withIn
the comment period specified in the
public notice on a DA permit application
or on a Federal project, that a public
hearing be held to consider the material
matters at Issue in the permit
application or with respect to Federal
project. Upon receipt of any such
request. stating with particularity the
reasons for holding a public hearing, the
district engineer may expeditiously
attempt to resolve the Issues Informally.
Otherwise, he shall promptly set a time
and place for the public hearing, and
give due notice thereof, as presaibed In
I 327.11 of this Part. Requests for a
public hearing under this paragraph
shall be granted, unless the district
engineer determine, that the Issues
raised are insubstantial or there I s
otherwise no valid Interest to be served
by a hearing. The district engineer will
make such a determination In writing.
and communicate his reasons therefor to
all requesting parties. Comments
received as form letters or petitions may
be acknowledged as a group to the
person or organization responsible for
the form letter or petition.
(c) In case of doubt, a public hearing
shall be held. HQDA has the
discretionary power to require hearings
in any case.
(d) In fixing the time and place for a
hearing, the convenience and necessity
of the interested public will be duly
considered.
* 327.5 PresIding officer.
(a) The district engineer. in whose
district a matter arises, shall normally
serve as the presiding officer. When the
district engineer Is unable to serve, he
may designate the deputy district
engineer or other qualified person as
presiding officer. In cases of unusual
Interest, the Chief of Engineers or the
division engineer may appoint such
person as he deems appropriate to serve
as the presiding officer.
(b) The presiding officer shall include
In the administrative record of the
permit action the request or requests for
the hearing and any data or material
submitted In justification thereof
materials submitted In opposition to or
In support of the proposed action. the
hearing transcript, and such other
material as may be relevant or pertinent
to the subject matter of the hearing. The
administrative record shall be available
for public Inspection with the exception
of material exempt from disclosure
under the Freedom of Information Act.
I 327.6 L.gal dvtsir.
At each public hearing, the district
counsel or his designee may serve as
legal advisor to the presiding officer. In
appropriate circumstances, the district
engineer may waive the requirement for
a legal advisor to be present
* 327.7 RepresentatIon. -
At the public hearing, any person may
appear on his own behalL or may be
represented by counsel, or by other
representatives. -
*327 . 8 Condufhssrlngs.
(a) The presiding officer shall make an
opening statement outlining the purpose
of the hearing and prescribing the
general procedures to be followed.
(b) Hearings shall be conducted by the
presiding officer In an orderly but
expeditious manner. Any person shall
be permitted to submit oral or written
statements concerning the subject
matter of the hearing, to call witnesses
who may present oral or written
statements, and to present
recommendations as to an appropriate
decision. Any person may present
written statements for the hearing
record prior to the time the hearing
record Is closed to public submissions,
and may present proposed findings and
recommendations. The presiding officer
shall afford participants a reasonable
opportunity for rebuttal.
(c) The presiding officer shall have
discretion to establish reasonable limits
upon the time allowed for statements of
witnesses, for arguments of parties or
their counsel or representatives, and
upon the number of rebuttals.
(d) Cross .examinatlon of witnesses
shall not be permitted. -
(e) All public bearings shall be
reported verbatim. CopIes of the
transcripts of proceedings may be
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‘ 41250 FedöraFReglsler / 51 ,
No. .219 I Thursday. November13 988- 4 . ule3’-and RegulaUoflS
purchased by any pers n from the Corps
of Engineers or the reporter of such
hearing. A copy will be available for
ubllc inspection at the office of the
,propriate district engineer.
(f) All written statements, charts.
tabulations, and similar data offered in
evidence at the hearing shall, subject to
exclusion by the presiding officer for
reasons of redundancy, be received in
evidence and shall constitute a part of
the record.
(g) The presiding officer shall allow a
period of not legs than 10 days after the
close of the public hearing for
submission of written comments.
(h) In appropriate cases, the district
engineer may participate in Joint public
hearings with other Federal or state
agencies, provided the procedures of
those hearings meet the requirements of
this regulation. In those cases in which
the other Federal or state agency allows
a cross-examInation In iti public
hearing, the district engineer may still
participate In the Joint public hearing
but shall not require cross examination
as a part of his participation.
327.9 F ig of the transcript of the
— M
Where he presiding officer Is the
initial action authority, the transcript of
the public hearing, together with all
evidence introduced at the public
hearing, shall be made a part of the
a’4,nlntatrative record of the permit
action or Federal project The Initial
action authority shall fully consider the
matters discussed at the public hearing
in arriving at his initial decision or
recommendation and shall address. In
his decision or recommendation, all
substantial and valid issues presented at
the hearing. Where a person other than
the Initial action authority serves as
presiding officer, such person shall
forward the transcript of the public
hearing and all evidence received in
connection therewith to the initial action
authority together with a report
summarizing the issues covered at the
hearing. The report of the presiding
officer and the transcript of the public
hearing and evidence submitted thereat
shall in such cases be fully considered
by the initial action authority in making
his decision or recommendation to
higher authority as to such permit action
or Federal project
327.10 AuthorIty of th. presiding officer.
Presiding office’rs shall have the
followüi g authority.’
• (a) To regulate the course of the
hearing Including the order of all
sessions and the scheduling thereof,
after any initial session. and the
recessing. reconvening, and
adjournment thereo and -
- (b) To take any other action necessary
or appropriate to the discharge of ’ the
duties vested In them. consistent with
the statutory or other authority under
which the Chief of Engineers functions,
and with the policies and directives of
the Chief of Engineers and the Secretary
of the Army.
*327.11 PubliC noticS.
(a) Public notice shall be given of any
public hearing to be held pursuant to
this regulation. Such notice should
normally provide for a period of not less
than 30 days following the date of public
notice during which tune interested
parties may prepare themselves for the
hearing. Notice shall also be given to all
Federal agencies affected by the
proposed action. and to state and local
agencies and other parties having an
interest in the subject matter of the
hearing. Notice shall be sent to all-
persons requesting a hearing and shall
be posted in appropriate government
buildings and provided to newspapers of
general circulation for publication.
Comment.s received as form letters or
petitions may be acknowledged as a
group to the person or organization
responsible for the form letter or
petition.
(b) The notice shall contain time,
place. arid nature of hearingi the legal
authority and Jurisdiction under which
the hearing is held: and location of and
availability of the draft environmental
impact statement or environmental
assessment
PART 328.- .OEF1NmON OF WATERS
OF THE UNITED STATES
s,
328.1 Purpose.
328.2 General scope.
328.3 Defliutions.
328.4 Limits of jurisdiction.
3285 Changes in limits of waters of the
United States.
Authonty 33 U.S.C. 1344.
*328.1 Purpose.
This section defines the term “waters
of the United States” as it applies to the
jurisdictional limits of the authority of
the Corps of Engineers under the Clean
Water Act. It prescribes the policy.
practice. and procedures to be used in
determining the extent of jurisdiction of
the Corps of Engineers concerning
“waters of the United States.” The
terminology used by section 404 of the
Clean Water Act includes “navigable
waters” which is defined at section
502(7) of the Act as “waters of the -
United States including the territorial..
seas.” To provide clarity and to avoid
nfusion with other Corps of Engineer
regulatory programs. the term “waters of
the United States’ is used throughout 33
CFR Parts 320—330. This section does not
apply to authorities under the Rivers
and Harbors Act of 1899 except that
some of the same waters may be
regulated under both statutes (see 33
CFR Parts 322 and 329).
* 328.2 General scope.
Waters of the United States include
those waters listed in * 328.3(a). The
lateral limits of Jurisdiction In those
waters may be divided into three
categories. The categories include the
territorial seas, tidal waters, and non-
tidal waters (see 33 CFR 328.4 (a). (b).
and (c). respectively).
* 328.3 Deflnitlàns.
For the purpose of this regulation
these terms are defined as follows:
(a) The term “waters of the United
States” means
(1) All waters which are currently
used, or were used in the past. or may
be susceptible to use in interstate or
foreign commerce, including all waters
which are subject to the ebb and flow of
the tide
(2) All interstate waters including
interstate wetlands;
(3) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams). mudflats.
sandflats. wetlands, sloughs. prairie
potholes. wet meadows, playa lakes, or
natural ponds. the use, degradation or
destruction of which could affect
Interstate or foreign commerce including -
any such waters:
(i) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes; or
(ii) From which fish or shellfish are or
could be taken and sold in interstate or -
foreign commerce: or
(iii) Which are used or could be used
for industrial purpose by industries in ‘
interstate commerce;
(4) All impoundments of waters
otherwise defined as waters of the
United States under the definition:
(5) Tributaries of waters identified in.,
paragraphs (a) (1)—(4) of this section —‘t
(6) The territorial seas;
(7) Wetlands adjacent to waters --
(other than waters that are themselves
wetlands) identified in paragraphs (a)
(1)—(6) of this section.
Waste treatment systems, Includ ing
treatment ponds or lagoons designed to
meet the requirements of CWA (other .i
than cooling ponds as defined in 40 CFR
123,11(m) which also meet the criteria O
this definition) are not waters of the
United States..
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Federal Register / Vol. 51, No. 219 I Thursday. November 13, 1986 / Rules and Regulations 41251
(b) The term “wetlands” means those
areas that are inundated or saturated by
surface or ground water at a frequency
and duration sufficient to support, and
that under normal circumstances do
support. a prevalence of vegetation
typically adapted for life in saturated
sail conditions. Wetlands generally
jnclude swamps. marshes, bogs. and
similar areas.
(c) The term “adjacent” means
bordering, contiguous, or neighbonng.
Wetlands separated from other waters
of the United States by man-made dikes
or barriers, natural river berms, beach
dunes and the like are “adjacent
wetlands.”
(d) The term “high tide line” means
the line of intersection of the lend with
the water’s surface at the maximum
height reached by a rising tide. The high
tide line may be determined, In the
absence of actual data, by a line of oil or
scum along shore objects, a more or less
continuous deposit of fine shell or debris
on the foreshore or berm, other physical
markings or characteristics, vegetation
lines, tidal gages. or other suitable
means that delineate the general height
reached by a rising tide. The line
encompasses spring high tides and other
high tides that occur with periodic
frequency but does not include storm
surges in which there Is a departure
from the normal or predicted reach of
the tide due to the piling up of water
against a coast by strong winds such as
those accompanying a hurricane or
other intense storm.
(e) The term “ordinary high water
mark” means that line on the shore
established by the fluctuations of water
and indicated by physical
characteristics such as clear, natural
line impressed on the bank, shelving.
changes in the character of soil.
destruction of terrestrial vegetation, the
presence of litter and debris, or other
appropriate means that consider the
characteristics of the surrounding areas.
(f) The term “tidal waters” means
those waters that rise and fall in a
predictable and measurable rhythm or
cycle due to the gravitational pulls of
the moon and sun. Tidal waters end
where the rise and fall of the water
surface can no longer be practically
measured in a predictable rhythm due to
masking by hydrologic, wind. or’other
effects.
328.4 LImits of jurisdiction.
(a) Territorial Seas. The limit of
jurisdiction in the territorial seas Is
measured from the baseline in a
seaward direction a distance of three -
nautical miles. (See 33 CFR 329.12) -
(b) Tidal Waters of the United States.
The landward IiiilIts of jurisdiction in
tidal waters: . ‘ -
- (1) Extends to the high tide line, or
(2) When adjacent non-tidal waters of
the United States are present. the
jurisdiction extends to the limits
identified in paragraph (c) of this
section.
(c) Non-Tidal Waters of the United
States. The limits of jurisdiction in non-
tidal waters:
(1) In the absence of adjacent
wetlands, the jurisdiction extends to the
ordinary high water mark, or
(2) When adjacent wetlands are
present. the jurisdiction extends beyond
the ordinary high water mark to the limit
of the adjacent wetlands.
(3) When the water of the United
States consists only of wetlands the
jurisdiction extends to the limit of the
wetland.
* 328.5 Changes in Umits of waters of the
United States.
Permanent change. of the shoreline
configuration result In similar
alterations of the boundaries of waters
of the United States. Gradual changes
which are due to natural causes and are
perceptible only over some period of
time constitute changes In the bed of a
waterway which also change the
boundaries of the waters of the United
States. For example, changing sea levels
or subsidence of land may cause some
areas to become waters of the United
States while siltation or a change in
drainage may remove an area from
waters of the United States. Man-made
changes may affect the limits of waters
of the United States: however.
permanent changes should not be
presumed until the particular
circumstances have been examined and
verified by the district engineer.
Verification of changes to the lateral
limits of jurisdiction may be obtained
from the district engineer.
PART 329—DEFiNITION OF
NAVIGABLE WATERS OF ThE UNITED
STATES
Se
329.1 Purpose.
329.2 Applicability.
329.3 General policies.
329.4 General definitions.
329.5 General scope of determination.
329.6 Interstate or foreign commerce.
329.7 Intrastate or interstate nature of
waterway.
329 8 Improved or natural condition. of the
waterbody.
329J Time at which commerce exists or
determination Is made.
329.10 Existence of obetruclions.
s -
32911 Geoaplucan ’fffurisdictional limits
of rivers and Iakes -
329.12 Geographic ai d luriadictional limits
of ocean ic and tidal waters.
329.13 Geographic limits: shutting
boundaries.
329.14 Determination of navigability.
329.15 InquIries regarding determinations.
329.16 Use and maintenance of lists of
determinations.
Authozity 33 U.S.C. 401 at seq.
*329.1 Purpose.
This regulation defines the term
“navigable waters of the United States”
as it is used to define authorities of the
Corps of Engineers. It also prescribes
the policy, practice and procedure to be
used In determining the extent of the
jurisdiction of the Corps of Engineera
and in answering inquiries concerning
“navigable waters of the United States.”
This definition does not apply to
authorities under the Clean Water Act
which definitions are described under 33
CFR Parts 323 and 328.
* 329.2 Appflcabwty.. -.
This regulation Is applicable to all
Corp. of Engineers districts and
division, having civil works .
responsibilIties. -
*329.2 G.n.r&po8di& ’ --‘...
Precise definition, of “navigable.
waters of the Uruted States” or
“navigability” are ultimately dependent
on judicial interpretation and cannot be
made conclusively by administrative
agencies. However, the policies and
criteria contained in this regulation are
In close conformance with the tests used
by Federal courts and determinations
made under this regulation are
considered binding in regard to the
activities of the Corps of Engineers.
* 329.4 General delWbon.
Navigable waters of the United States
are those waters that are subject to the
ebb and flow of the tide and/or are
presently used. or have been used lii the
past, or may be susceptible for use to
transport Interstate or foreign
commerce. A determination of
navigability, once made, applies
laterally over the entire surface of the
waterbody, and Is not extinguished by
later actions or events which impede or
destroy navigable capacity.
* 329.5 General scope of determination.
The several factors which must be
examined when making a determination
whether a weterbody Is a navigable
water of the United State. are discussed
In detail below. Generally, the following
conditions must be satisfied:
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42252 Federal Register / Vol 51. No29 T iuscay. .overnDer 13. 1986 I Ruies anu Regu.a i ”
(a) Past, present, or potential presence
of interstate or foreign commerce:
(b) Physical capabilities for use by
mmerce as in paragraph (a) of this
ction: and
(c) Defined geographic limits of the
waterbody.
329.8 Interstate or foreign commerce.
(a) Nature of commerce: type. means.
and extent of use. The types of
commercial use of a waterway are
extremely varied and will depend on the
character of the region. its products, and
the difficulties or dangers of navigation.
It is the waterbody’s capability of use by
the publIc for purposes of transportation
of commerce which is the determinative
factor, and not the time, extent or
manner of that use. As discussed In
* 3299 of this Part. It is sufficient to
establish the potential for commercial
use at any past. present. or future time.
Thus. sufficient commerce may be
shown by historical use of canoes.
bateaux. or other frontier craft, as long
as that type of boat was common or
well-suited to the place and period.
Similarly, the particular Items of
commerce may vary widely, depending
again on the region and period. The
goods involved might be gram, furs, or
other commerce of the time. Logs are a
common example; transportation of logs
baa been a substantial and well-
recognized commercial use of many
‘avigable waters of the United States.
ate, however, that the mere presence
(floating logs will not of itself make
the river “navigable”; the logs must have
been related to a commercial venture.
Slmilaz4y. the presence of recreational
craft may indicate that a waterbody Is
capable of bearing some forms of
commerce, either presently. In the
future, or at a past point In time.
(b) Nature of coinmeite interstate
and ,ntrcstate. Interstate commerce may
of course be existent on an intrastate
voyage which occurs only between
places within the same state. It Is only
necessary that goods may be brought
from, or eventually be destined to go to.
another state. (For purposes of this
regulation. the term “interstate
commerce” hereinafter includes “foreign
commerce as welL)
§ 329.7 Intrastate or Interstate nature of
waterway.
A waterbody may be entirely within a
state. yet still be capable of carrying
interstate commerce. This is especially
clear when It physically connects with a
generally acknowledged avenue of
interstate commerce, such as the ocean
or one of the Great Lakes. and is yet
wholly within one state. Nor is it -
necessary that there be a physically
navigable cor nection across a state
boundary Where a waterbody extends
through one or more states. but
substantial portions. which are capable
of bearing interstate commerce, are
located in only o ie of the states. the
entirety of the waterway up to the head
(upper limit) of navigation is subject to
Fede:al ;urisd ction.
§ 329.8 mpro’ved or natural conditions of
the waterDody.
Determinations are not limited to the
natural or original condition of the
waterbody. Navigability may also be
found where artificial aids have been or
may be used to make the waterbody
suitable for use in navigation.
(a) E.xisti.ig improvements: artificial
waterbod 1 es. (1) An artificial channel
may often constitute a navigable water
of the United States. even though it hiis
been privately developed and
maintained, or passes through private
property The test is generally as
developed above, that is. whether the
water’oody is capable of use to transport
interstate commerce. Canals which
connect two navigable waters of the
United States and which are used for
commerce clearly fall within the test.
and themselves become navigable. A
canal open to navigable waters of the
United States on only one end is itself
navigable where it in fact supports
interstate commerce. A canal or other
artificial waterbody that is subject to
ebb arid flow of the tide Is also a
navigable water of the United States.
(2) The artificial waterbody may be a
major portion of a river or harbor area
or merely a minor backwash. slip. or
turning area (see paragraph 329.12(b) of
this Part).
(3) Private ownership of the lands
underlying the waterbody. or of the
lands through which it runs, does not
preclude a finding of navigability.
Ownership does become a controlling
factor if a privately constructed and
operated canal is not used to transport
interstate commerce nor used by the
publ;c it is then not considered to be a
navigable water of the United States.
However, a private waterbody. even
though not itself navigable. may so
affect the navigable capacity of nearby
waters as to nevertheless be subject to
certain regulatory authorities.
(b) Von-erisfing ,n7prvvements. post
or potential. A waterbody may also be
considered navigable depending on the
feasibility of use to transport interstate
commerce after the construction of
whate’.er reasonable ” improvements
may potentially be made. The
improvement need not exist, be planned.
nor even authorized. it is enough that
potentially they could be made. What is
a “reasonable” improvement is always a
matter of degree: there must be a
balance between cost and need at a
time when the improvement would be
(or would have been) useful. Thus. if an
improvement were “reeisoriable” at a
time of past use, the water was therefore
na%lgable in law from that time forward
The chdnges in engineering practices or
the coming of new industries with
varying classes of freight may affect the
type of the improvement: those which
may be entirely reasonable in a thickly
populated. highly developed industrial
region may have been entirely too costly
for the same region in the days of the
pioneers. The determination of
reasonable improvement is often similar
to the cost analyses presently made in
Corps of Engineers studies.
§ 329.9 Time at which commerce exists or
determination Is made.
(a) Post use. A waterbody which was
navigable In its natural or improved
state, or which was susceptible of
reasonable improvement (as discussed
in paragraph 329.8(b) of this Part) retains
its character as “navigable in law” even
though it is not presently used for
commerce, or is presently incapable of
such use because of changed conditions
or the presence of obstructions Nor
does absence of use because of changed
economic conditions affect the legal
character of the waterbody. Once
having attained the character of
“navigable In law.” the Federal
authority remains in existence. and
cannot be abandoned by administrative
officers or court action. Nor is mere
inattention or ambiguous action by
Congress an abandonment of Federal
control. However, express statutory
declarations by Congress that described
portions of a waterbody are non-
navigable, or have been abandoned, are
binding upon the Department of the
Army. Each statute must be carefully
examined. since Congress often reserves
the power to amend the Act, or assigns
special dutIes of supervision and control
to the Secretary of the Army or Chief of
Engineers.
(b) Future or potential use
Navigability may also be found in a
waterbody’s susceptibility for use in its
ordinary condition or by reasonable
improvement to transport interstate -
commerce. This may be either in its
natural or improved condition, arid may
thus be existent although there has been
no actual use to date. Non-use in the
past therefore does not prevent
recognition of the potential for future
use. -
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Federal Register / Vol. 51, No. 219 I Thursday, November 13, 1966 I Rules ai d Rel oas 41253
§ 329.10 ExIstence of obstructions.
A stream may be navigable despite
the existence of falls, rapids, sand bars,
bridges. portages. shifting currents, or -
similar obstructions. Thus, a waterway
in its original condition might have had
substantial obstructions which were
overcome by frontier boats and/or
portages. and nevertheless be a
“channel” of commerce, even though
boats had to be removed from the water
jn some stretches, or logs be brought
around an obstruction by means of
artificial chutes. However, the question
is ultimately a matter of degree, and it
must be recognized that there is some
point beyond which navigability could
not be established.
§ 329.11 GeographIc and Jur Isdictional
limits of rivers and lakes.
(a) Jurisdiction over entire bed.
Federal regulatory jurisdiction, and
powers of improvement for navigation,
extend laterally to the entire water
surface and bed of a navigable
waterbody, which includes all the land
and waters below the ordinary high
water mark. jurisdiction thus extends to
the edge (as determined above) of all
such waterbodies, even though portions
of the waterbody may be extremely
shallow, or obstructed by shoals,
vegetation or other barriers. Marshlands
and similar areas are thus considered
navigable in law, but only so far as the
area is subject to inundation by the
ordinary high waters.
(1) The “ordinary high water mark” on
non-tidal rivers is the line on the shore
established by the fluctuations of water
and indicated by physical
characteristics such as a clear, natural
line impressed on the bank; shelving;
changes In the character of soil:
destruction of terrestrial vegetation; the
presence of litter and debris; or other
appropriate means that consider the
characteristics of the surrounding areas.
12) Ownership of a river or lake bed or
of the lands between high and low
water marks will vary according to state
law; however, private ownership of the
underlying lands has no bearing on the
existence or extent of the dominant
Federal jurisdiction over a navigable
waterbody. -
(b) Upper limit of navigability. The
character of a river will, at some point
along its length, change from navigable
to non-navigable. Very often that point
will be at a major fall or rapids, or other
place where there is a marked decrease
in the navigable capacity of the river.
The upper limit will therefore often be
the same point traditionally recognized
as the head of navigation, but may,
under some of the tests described above,
be at some point yet farther upstream,
§ 329.12 GeographIc and Jurisdictional
Smltz of oceanic and tidal waters,
(a) Ocean and coastal waters. The
navigable waters of the United States
over which Corps of Engineers
regulatory jurisdiction extends include
all ocean and coastal waters within a
zone three geographic (nautical) miles
seaward from the baseline (The
Territorial Seas). Wider zones are
recognized for special regulatory powers
exercised over the outer continental
shelf. (See 33 CFR 322.3(b)).
(1) Baseline defined. Generally, where
the shore directly contacts the open sea,
the line on the shore reached by the
ordinary low tides comprises the
baseline from which the distance of
three geographic miles is measured. The
baseline has significance for both
domestic and international law and is
subject to precise definitions. Special
problems arise when offshore rocks,
Islands, or other bodies exist, and the
baseline may have to be drawn seaward
of such bodies.
(2) Shoreward limit of jurisdiction.
Regulatory jurisdiction in coastal areas
extends to the line on the shore reached
by the plane of the mean (average) high
water. Where precise determination of
the actual location of the line becomes
necessary, it must be established by
survey with reference to the available
tidal datum, preferably averaged over a
period of 18.8 years. Less precise
methods, such as observation of the
apparent shoreline” which is
determined by reference to physical
markings. lines of vegetation, or changes
in type of vegetation, may be used only
where an estimate is needed of the line
reached by the mean high water.
(b) Boys and estuaries. Regulatory
jurisdiction extends to the entire surface
and bed of all waterbodies subject to
tidal action. Jurisdiction thus extends to
the edge (as determined by paragraph
(a)(2) of this section) of all such
waterbodies, even though portions of
the waterbody may be extremely
shallow, or obstructed by shoals,
vegetation, or other barriers.
Marshlands and similar areas are thus
considered “navigable in law,” but only
so far as the area is subject to
inundation by the mean high waters.
The relevant test Is therefore the
presence of the mean high tidal waters,
and not the general test described
above, which generally applies to inland
rivers and lakes.
§ 329.13 GeographiC mlts shifting
boundaries.
Permanent changes of the shoreline
configuration result in similar
alterations of the boundaries of the
navigable waters of the United States.
Thus, gradual changes which are due to
natural causes and are perceptible only
over some period of time constitute
changes in the bed of a waterbody
which also change the shoreline
boundaries of the navigable waters of
the United States. However, an area will
remain “navigable in law.” even though
no longer covered with water, whenever
the change has occurred suddenly, or
was caused by artificial forces intended
to produce that change. For example,
shifting sand bars within a river or
estuary remain part of the navigable
water of the United States, regardless
that they may be dry at a particular
point in time.
§ 329.14 Determination of navigabulty.
( ) Effect on determinations. Although
conclusive determinations of -.
navigability can be made only by -b.
federal Courts, those made by federal
agencies are nevertheles, accorded
substantial weight by the courts, It Is -
therefore necessary that when -
jurisdictional questions arise, district
personnel carefully Investigate thou
waters which may be subject to Federal
regulatory jurisdiction under guidelines
set out above, as the resulting
determination may have substantial
impact upon a judicial body. Official.
determinations by an agency made In -
the past can be revIsed or reversed u
necessary to reflect chsnged rule. or.
interpretations of the law,
(b) Procedures of determination. A
determination whether a waterbody is a
navigable water of the United States
will be made by the division engineer,
and will be based on a report of findings
prepared at the district level In -
accordance with the criteria set out in
this regulation. Each report of finding.
will be prepared by the district engineer,
accompanied by an opinion of the
district counsel, and forwarded to the -
division engineer for final
determination. Each report of findings
will be based substantially on
applicable portions of the format In
paragraph (c) of this section. -
(c) Suggested form at of report of
findings:
(1) Name of waterbody
(2) Tributary to: - -
(3) Physical characteristics:
(i) Type: (river, bay, slough, estuary,
etc.)
(ii) Lengt l u
(iii) Approximate discharge volumes:
Maximum, Minimum, Mearu -
(iv) FaU per mile:
(v) Extent of tidal lnfluen e: -
(vi) Range between ordinary high and
ordinary low water - -
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41254 FederaiRegister / Vol 51. o 219 / Tbu _ day ‘.ovemoer 13. 19d6 / aru ceg- 5 na oiu
(vu) Description of improvements to
navigation not listed ui paragraph (c)(5)
of this sectlon
4) Nature and location of siginficant
ruction8 to navigation in portions of
waterbody used or potentially
..apable of use in interstate commerce.
(5) Authorized projects:
(t) Nature. condition and location of
an improvements made under projects
authorized by Congress:
(II) Description of projects authorized
but not constructed:
( Iii) List of known survey documents
or reports describing the waterbody’
(8) Past or present Interstate
commerce -
(1) General types. extent, and period in
tims:
(Ii) Documentation if necessaryi
(7) Potential use for Interstate
commerce, if applicable:
(1) If in natural condition.
(11)11 improved:
(8) Nature of jurisdiction known to
have been exercised by Federal
agencies If any: ‘ -
(9) State or Federal court decisions
relating to navigability of the
waterbody. if any
(10) Remarks:
(11) FInding of navigability (with date)
and recommendation for determination.
329.15 Ifl d.$ regardIng
dstsrm leadofl&.
( ) Findings and determinations
ould be made whenever a question
sea regarding the navigability of a
iaterbody. Where no determination has
been made, a report of findings will be
prepared and forwarded to the division
engineer, as described above. Inquiries
may be answered by an Interim reply
which indicates that a final agency
determination must be made by the
division engineer. If a need develops for
an energency determination, district
engineers may act in reliance on a
finding prepared as in Section 329.14 of
this Part The report of flnding should
then be forwarded to the division
engineer on an expedited basis.
(b) Where determinations have been
made by the division engineer. Inquiries
regarding the navigability of specific
portions of waterbodies covered by
these determinations may be answered
as follows:
This Department . in the
administration of the laws enacted by
Congress for the protection and
preservation of th’e navigable waters of
the United States. has determined that
(River) (Bay) (Lake. etc.) is a
navigable water of the United States
from _____ to- _ - Actions which
modify or otherwise affect those waters
are subject to the Jurisdiction of this
Department. whether such actions occur
within or outside the navigable areas.
(c) Specilic inquiries regarding the
jurisdiction of the Corps of Engineers
can be answered only after a
determination whether (1) the waters
are navigable waters of the United
States or (2) if not navigable, whether
the proposed type of activity may
nevertheless so affect the navigable
waters of the United States that the
assertion of regulatory jurisdiction is
deemed necessary.
§ 329.18 Us. and mathtenattCe of flats of
determiltadaris.
(a) Tabulated lists of final
determinations of navigability are to be
maintained in each district office, and
be updated as necessitated by court
decisions. jurisdictional inquiries, or
other changed conditions.
(b) It should be noted that the lists
represent only those waterbodles for
which d.eternunatlons have been made’.
absence from that list should not be
taken as an uidicat.lon that the
waterbody is not navigable.
(c) Deletions from the list are not
authorized. if a change in status of a
waterbody from navigable to non-
navigable is deemed necessary, an
updated finding should be forwarded to
the division engineen changes are not
considered final until a determination
has been made by the division engineer
PART 330—NATIONWIDE PERMITS
Se
330.1 GeneraL
330.2 De niuons.
330.3 Acnvi es ooninng before certain
dates.
3304 Pubflccotice.
330.5 NationwIde permits.
330.8 Management practices.
3307 NotificatIon procedures.
330.8 Discretionary Authority.
330.9 State water quality certification.
330.10 Cnasiai Zone Management
consistency determination.
330.11 auonwide permit verification.
330.12 Exiration of nationwide permit..
Autbor.1y 33 U.S.C. 401 et seq. 33 U.S.C
1343:33 U.S.C. 1413.
§330.1 GeneraL
The purpose of this regulation is to
describe the Department of the Army’s
(DA) nationwide permit program and to
list all current nationwide permits which
have been issued by publication herein.
A nationwide permit is a form of general
permit which may authorize activities
throughout the nation. (Another type of
general permit is a “regional permit”
and is issued by division or district
engineers on a regional basis iii
accordance with 33 CFR Part 325).
Copies of regional conditions and
modifications, if any. to the nationwide
permits can be obtained from the
appropriate district engineer. -
Nationwide permits are designed to
allow certain activities to occur with
little, if any. delay or paperwork.
Nationwide permits are valid only if the
conditions applicable to the nationwide
permits are met. Failure to comply with
a condition does not necessarily nIean
the activity cannot be authorized but
rather that the activity can only be
authorized by an individual or regional
permit. Several of the nationwide
permits require notification to the
district engineer prior to commencement
of the authorized activity. The
procedures for this notification are
located at § 330.7 of this Part.
Nationwide permits can be issued to
satisfy the requirements of section 10 of
the Rivers and Harbors Act of 1899.
section 404 of the Clean Water Act.
and/or section 103 of the Marine
Protection. Research and Sanctuaries
Act. The applicable authority is
Indicated at the end of each nationwide
permit
*330.2 Deflnttlons.
(a) The definitions of 33 CFR Parts
321—329 are applicable to the terms used
in this Part.
(b) The term “headwaters” means the
point on a non-tidal stream above which
the average annual flow is less than five
cubic feet per second. The district
engineer may estimate this point from
available data by using the mean annual
area precipitation, area drainage basin
maps . and the average runoff coefficient.
or by similar means. For streams that
are dry for long periods of the year.
district engineers may establish the
“headwaters” as that point on the
stream where a flow of five cubic feet
per second is equaled or exceeded 50
percent of the time.
(c) Discretionary authority means the
authority delegated to division engineers
- in § 330.8 of this part to override
provisions of nationwide permits. to add
regional conditions. or to require
individual permit application.
* 330.3 ActIvities occurring before certain
dates.
The following activities were
permitted by nationwide permits issued
on July 19. 1977, and unless modified do
not require further permittingi
(a) Discharges of dredged or fill
material into waters of the United States
outside the limits of navigable waters of.
the United States that occurred before
the phase-in dates which begat. July 25.
1975, and extended section 404 - -.
jurisdiction to all waters of the United
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Federal Register / VoL St
No. 219 / Thursday. November :13. 1988 1 Rules and ‘ Regulations 41255
Slates. (These phase-in dates are After
July 25.1975. discharges into navigable
waters of the United Stat and
adjacent wetlands; after September
1976. discharges into navigable waters
of the United States and their primary
tributaries. including adjacent wetlands.
and Into natural lakes, greater than
acres in surface area and after July 1.
discharges into all waters of the
United States.) (Section 404)
(b) Structures or work completed
before December 18. 1968. or in
waterbodies over which the district
engineer had not asserted jurisd iction at
the time the activity occurred provided.
in both instances, there is no
interference with navigation. (Section
10)
330.4 PublIc notice.
(a) Chief of Engineers. Upon proposed
issuance of new nationwide permits.
modification to. or reissuance of.
existing nationwide permits, the Chief of
Engineers will publish a notice In the
Federal Register seeking public
comments and Induding the opportunity
for a public hearing. This notice will
state the availability of Information at
the Office of the Chief of Engineers and
at all district offices which reveals the
Corps’ provisional determination that
the proposed activities comply with the
requirements for Issuance under general
permit authority. The Chief of Engineers
will prepare this information winch will
be supplemented. If appropriate, by -
division engineers.
(b) District engineers. Concurrent
with publication In the Federal Register
of proposed. new, or reissued
nationwide permits by the Chief of
Engineers, district engineers wiU so
notify the known interested public by an
appropriate notice. The notice will
include regional conditions, if any.
developed by the division engineer.
§ 330.5 NationwIde permits.
(a) Authorized activities. The
following activities are hereby permitted
provided they meet the conditions listed
in paragraph (b) of this section and.
where required. comply with the
notification procedures. of § 330.7.
(1) The placement of aids to
navigation and regulatory markers
which are approved by and Installed in
accordance with the requirements of the
US. Coast Guard (33 CFR Part 66.
Subchapter C). (Section 10)
(2) Structures constructed in artificial
canals within principally residential
developments where the connection of
the canal to a navigable water of the
United States has been previously
authorized (see 33 Part 322.5(g)).
ethon10)-
(3) The repair. khabilitaticm. or separation scheme (where such limits
replacement of any previously - have not been des gna ted or where
authorized, currently serviceable, changes are anticipated. district
structure-or flu, or of any currently engineers will consider recommending
serviceable structure or fill constructed the discretionary authority provided by
prior to the requirement for 330.8 of this Part, and further subject to
authorization, provided such repair. the provisions of the fairway regulations
rehabilitation. or replacement does not in 33 CFR 322.5(1) (Section 10).
result in a deviation from the plans of (9) Structures placed Within anchorage
the original structure or fill. and further or fleeting areas to facilitate moorage of
provided that the structure or fill has not vessels where inch areas have been
been put to uses differing frorauaes established far that purpose by the U.S.
specified for it In any permit authorizing Coast Guard. (Section 10)
its original construction. Minor - (10) Non-commercial. single-boat.
deviations due to changes In materials mooring buoys. (SectIon 10)
or construction techniques and which (11) Temporary buoys and markers *
are necessary to make repair, placed for recreational use such as
rehabilitation, or replacement are water skiing and boat racing provided
permitted. Maintenance dredging and that the buoy or marker Is removed
beach restoration are not authorized by within 30 days after Its use ha. been
this nationwide permit. (Section 10 and discontinued. At Corps of Engineer.
404) ‘ reservoirs, the reservoir manager must
(4) FIsh and wildlife harvesting approve each buoy or marker
devices and activities such as pound IndIvi uslly. (SectIon 10) -
nets. crab traps, eel pots, lobster traps,. (12) DIscharge of niaterfal for backfill
duck blinds. and clam and oyster’ - ‘: ‘,‘- beddlr igfor utility lines. Including
digging. (Section 10) - - outfall and Intake structures, provided
(5)Staffges,tidegages .water thereisnochangetnpreconstruction ”:.
recording deviCes. water quality testing bottom contours (excess material mustS
and Improvement devices, and similar be removed to an upland disposal ares).
sdenlilic structures. (Section 10) A “utility line” I. defined as any pipe or
(6) Survey activities Including core pipeline for the anspcrtation of any’ -
sampling seismic eXploratory gaseous. liqald.llquifiabIe.crsluny -
operations, and plugging of seismic shot substance, for any purpose. and any.-’
holes and other exploratory-type bore ijne, or wire for the n ” 1 ’s ion
holes. Drilling of exploration-type bore for any purpose of electrical ecer , .
holes for oil and gas exploration IS not telephone and telegraph messages. and
authorized by this nationwide permit radio arid television co inmunlcatlca. -
the plugging of such holes is authorized. (The utility line and outfall and 1ntake
(Sections 10 and 404).
(7) Outfall structures and associated structures wIll requIres SectIon 10
intake structures where the effluent from permit If In navigable waters of the
That outfall has been permitted under United States. See 33 CFR Part 322. See
the National Pollutant Discharge also paragraph (a)(7) of this section). -.
Elimination System program (Section ( on 404) - -
402 of the Clean Water Act) (see 40 C it (13) Bank stabilization activities
Part 122) provIded that the dIstrict or providedi - - ‘. -
division engineer makes a determination (1) l ’he bank stabilization activity is -
that the individual and cumulative less than 500 feet in Iengtic
adverse en’nmnmental effects of the (Ii) The activity Is necessary For
structure itself are minimal in erosion prevention;
accordance with I 330. (cM2) and (d). (iii) The activity Is limited to less than
Intake structures per se are not an average of one cubic yard per
included—only those directly associated running foot placed along the bank
with an outfall structure are covered by Within waters of the United States:
this nationwide permit This permit -(Iv) No material Is placed In excess of
includes minor excavation, filling and the minimum-needed for erosion
—other work associated with installation protection;
or the intake end outfall structures. (v) No material Is placed in any
(Sections 10 and 404) wetland area:
(8) Structures for the exploratIon, (vi) No material Is placed In any
production. and transportation of oil, location or In any manner so as to
gas, and minerals on the outer impair surface water flaw into or out of
continental shelf within areas leased for any wetland area:
such purposes by the Department of ‘. (vii) Only dean material free of waste
Interior. Mineral Management Service. metal products, organic materials,
provided those structures are not placed unsightly debris. etc. is used: and - -
within thelimits of any designated. - ‘ - (viii) The activity is a single and
shipping safety fairway or traffic - complete project4Sections 10 and 404)
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41256 Federal Register I Vol 51, No 219 / Thursday, November 13, 1988 / Rules and Regulatio 3
(14) Minor road ssu g fills including
all attendant features, both temporary
“ej permanent. that are part of a single
complete project for crossing of a
tidal waterbody, provided that the
,ssing is culverted. bridged or
otherwise designed to prevent the
restriction of. and to withstand.
expected high flows and provided
further that discharges into any
wetlands adjacent to the waterbody do
not extend beyond 100 feet on either
side of the ordinary high water ma’rk of
that waterbody. A “minor road crossing
fill” is defined as a crossing that
involves the discharge of less than 200
cubic yards of fill material below the
plane of ordinary high water. The
crossing may require a permit from the
US Coast Guard If located in navigable
waters of the United States. Some road
fills may be eligible for an exemption
from the need for a Section 404 permit
altogether (see 33 CFR 323.4). District
engineers are authorized, where local
ciroumatanCas indicate the need. to
define the term “expected high flows”
for the purpose of establishing
applicability of thi. nationwide permit
(Sections 10 and 404)
(15) macbarges of dredged or fill
material incidental to the construction of
bridges across navigable waters of the
United States, including cofferdarns.
abutments. foundation seals. piers. and
‘mporary construction and acceu fills
ivided such discharge has been
.thorized by the US Coast Guard a.
part of the bridge permit Causeways
and approach fill. are not included in
this nationwide permit and will require
an individual or regional Section 404
permit (Section 404)
(18) Return water from an upland.
contained dredged material disposal
area (see 33 CFR 323.2(d)) provided the
state has issued a site specific or generic
certification under section 401 of the
Clean Water Act (see also 33 CFR
325.2(b)(1)). The dredging itself requires
a Section 10 permit if located in
navigable waters of the United States.
The return water or runoff from a
contained disposal area La
administratively defined as a discharge
of dredged material by 33 CFR 323.2(d)
even though the disposal itself occurs on
the upland and thus does not require a
section 404 permit This nationwide
permit satisfies the technical
requirement for a section 404 permit for
the return water where the quality of the
return water is controlled by the state
through the section 401 certification
procedures. (Section 404)
(17) Fills associated with small
hydropower pro jects at existing
reservoirs where the project which
includes the fill is licensed by the
Federal Energy Regulatory Commission
(FERC) under the Federal Power Act of
1920. as amended; has a total generating
capacity of not more than 1500kw (2.000
horsepower): qualifies for the short-form
licensing procedures of the FERC (see 18
CFR 4 61). and the district or division
engineer makes a determination that the
individual and cumulative adverse
effects on the environment are minimal
in accordance with § 3307 (c)(2) and (d).
(Section 404)
(18) Discharges of dredged or fill
material into all waters of the United
States other than wetlands that do not
exceed ten cubic yards as part of a
single and complete project provided the
material is not placed for the purpose of
stream diversion. (Sections 10 and 404)
(19) Dredging of no more then ten
cubic yards from navigable waters of
the United States as part of a single and
complete project This permit does not
authonze the connection of canals or
other artificial waterways to navigable
waters of the United States (see Section
33 CFR 322.5(g)). (Section 10)
(20) Structures, work, and discharges
for the containment and cleanup of oil
and hazardous substances which are
sub ject to the National Oil and
Hazardous Substances Pollution
Contingency Plan. (40 CFR Part 300).
provided the Regional Response Team
which is activated under the Plan
concurs with the proposed containment
and cleanup action. (Sections 10 and
404)
(21) Structures. work, discharges
associated with surface coal mining
activities provided they were authorized
by the Department of the Interior. Office
of Surface Mining, or by states with
approved programs under Title V of the
Surface Mining Control and Reclamation
Act of 1977; the appropriate district
engineer is given the opportunity to
review the Title V permit application
and all relevant Office of Surface
Min.ir.g or state (as the case may be)
documentation prior to any decision on
that application; and the district or
division engineer makes a determination
that the individual and cwnulative
adverse effects on the environment from
such structures. work, or discharges are
minimal in accordance with H 330.7 (c)
(2) and (3) and (d). (Sections 10 and 404)
(22) Minor work, fills, or temporary
structures required for the removal of
wrecked. abandoned, or disabled
vessels, or the removal of man-made
obstructions to navigation. This permit
does not authorize maintenance
dredging. shoal removal, or river bank
snagging. (Sections 10 and 404)
(23) Activities, work, and discharges
undertaken. assisted, authorized.
regulated funded, or financed, in whole
or in part. by another federal agency or
department where that agency or
department has determined, pursuant to
the CEQ Regulation for Implementing
the Procedural Provisions of the
National Environmental Policy Act (40
CFR Part 1500 et seq), th ’i’at the activity,
work, or discharge is categorically
excluded from environmental
documentation because it is included
within a category of actions which
neither individually nor cumulatively
have a significant effect on the human
environment, and the Office of the Chief
of Engineers (ATrN: DAEN-CWO--N)
has been furnished notice of the
agency’s or department’s application for
the categorical exclusion and concurs
with that determination. Prior to
approval for purposes of this nationwide
permit of any agency’s categoricdl
exlciisions. the Chief of Engineers will
solicit comments through publication in
the Federal Register. (Sections 10 and
404)
(24) Any activity permitted by a state
administering its own Section 404 permit
program for the discharge of dredged or
fill material authorized at 33 U.S.C.
1344(g)—(l) is permitted pursuant to
section 10 of the Rivers and Harbors Act
of 1899. Those activities which do not
involve a section 404 state permit are
not included In this nationwide permit
but many will be exempted by section
154 of Pub. L 94—587. (See 33 CFR
322.3(a)(2)). (Section 10)
(25) Discharge of concrete into tightly
sealed forms or cells where the concrete
is used as a structural member which
would not otherwise be subject to Clean
Water Act jurisdiction. (Section 404)
(26) Discharges of dredged or fill
material into the waters listed in
paragraphs (a)(28) (i) and (ii) of this
section except those which cause the
loss or substantial adverse modiflcatio
of 10 acres or more of such waters of the
United States, Including wetlands. For -
discharges which cause the loss or
substantial adverse modification of 1 to
10 acres of such waters, including
wetlands, notification to the district
engineer is required in accordance with
section 330.7 of this section. (Section
404).
(i) Non-tidal rivers, streams, and their
lakes and impoundments. including
adjacent wetlands, that are located
above the headwaters.
(ii) Other non-tidal waters of the
United States. including adjacent
wetlands, that are not part of a surface
tributary system to interstate waters or
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- Federal Register] . VoL 5l, No. 219 / Thursday, No ember 13. 1988 1 Rules ana RejWalions 412.57
navigable waters of the United States
(i.e.. isolated waters).- —
- (b) CandiLions. The following special
conditions must be followed in order (or
the nationwide permits identified in.
paragraph (a) of this section to be valith
(1) That any discharge ot’dredged or
fill material will not occur in the
proximity of a public water supply
intake.
(2) That any discharge of dredged or
fill material will not occur in areas of
concentrated shellfish production unless
the discharge is directly related to a
shellfish harvesting activfly authorized
by paragraph (a)(4) of this section.
(3) That the activity will not
jeopardize a threatened or endangered
species as identified under the
Endangered Species Act IESA). or
destroy or adversely modify the critical
habitat of such species. in the case of
federal agencies. it Is the agencies’
responsibility to comply with the
reqwrernents of the ESA. if the activity
may adversely affect any listed species
or critical habitat, the district engineer
must initiate Section 7 consultation in
accordance with the ESA. In such cases.
the district engineer may
i) Initiate section 7 consultation and
then, upon completion, authorize the
activity under the nationwide permit by
adding. if appropridte. activity specific
conditions, or
(ii) Prior to or concurrent with section
7 consultation be may recommend
discretionary authority (See section
330.8) or use modification, suspension,
or revocation procedures (See 33 CFR
325.7).
(4) That the activity shall not
significantly disrupt the movement of
those species of aquatic life indigenous
to the waterbody (unless the primary
purpose of the fill is to Impound water):
(5) That any discharge of dredged or
fill material shall consist of suitable
material free from toxic pollutants (see
section 307 of the Clean Water Act) in
toxic amounts;
(6) ThaI any structure or fill
authorized shall be properly maintained.
(7) That the activity will not occur in a
component of the National Wild and
Scenic River System; nor in a river
officially designated by Congress as a
“study river” for possible inclusion in
the system, while the river is in an
official study status;
(8) That the activity shall not cause an
unacceptable interference with
navigation:
(9) That, if the activity may adversely
affect historic properties which the -
National Park Service has listed on, or
determined eligible for listing on. the
National Register of Historic Places, the
permittee will notify the disbict
• engineer. If the district engineer — -
‘detennines that such historic properties
-: my -beedverselyaected,hewill
provide the Advisory Council on -
Historic Preservation an opportunity to
comment on the effects on such historic
properties or he will consider
modilicatlou, suspension, or revocation
In accordance with 33 CFR 3252.
Furthermore. that. If the permfttee before
or during prosecution of the work
authorized, encounters a historic
property that has not been hated or
determined eligible for hating on the
National Register, but which may be
eligible for listing in the National
Register. he shall im mediately notify the
district engirteen
(10) That the construction or operation
of the activity wifl not Impair reserved
tribal rights, including. but not limited
to, reserved water rights end treaty
fishing end hunting rtghts
(11) That In certain states, an
individual state water quality -
certification must be obtained or waived
(See * 330.9):
(12) That in certain states, an
individual state coastal zone
management consistency concurrence
must be obtained or waived (See
§ 330,10)-.
(13) That the activity will comply with
regional conditions which may have
been added by the division engineer
(See § 330,8(a)): and
(14) That the management practices
listed in * 330.6 o(this part shall be
followed to the maximum extent
practicable.
(c) Further informalion. (1) District
engineers are authorized to determine if
an activity complies with the terms and
conditions of a nationwide permit unless
that decision must be made by the
division engineer In accordance with
1 330.7.
(2) Nationwide permits do not obviate
the need to obtain other Federal. state or
local authorizations required by law.
(3) Nationwide permits do not grant
any property rights or exclusive
priv ileges.
(4) Nakonwule permits do not
authorize any injury to the property or
rights of others.
(5) Nationwide permits do not
- authorize interference with any existing
or proposed Federal project
(d) Modification. Suspension or
Revocotion of Nationwide Permits. The
Chief of Engineers may modify, suspend.
or revoke nationwide permits in
accordance with the relevant
procedures of 33 CFR 325.7. Such
authority includes, but is not limited 1o
adding individuaL regional, or
nationwide conditions revoking
authorazatio for a category of activities
or a categoryof waters-by requiring
individual or regional permits; or
revoking an authorization on a case-by-
case basis. This authority is not limited
to concerns for the aquatic environment
-as Is the discetionary authority hi
*330.8.
* 330.5 Management practices.
(a) In addition to the conditions
specified in § 330.5 of this Part, the
following management practices shall
be followed, to the maximum extent
practicable, in order to minimize the
adverse effects of these discharges on
the aquatic environment Failure to
comply with these practices may be
cause forthe district engineer -to
recommend, or the division engineer to
take, discretionary authority to regulate
the activity on en Individual or.regional
basis pursuant to § 3302 of this Part.
(1) Discharges of dredged or fill -
material into waters of the United States
shall be avoided or rntnlmte, ’d through
the use of other practical alternatives.
(2) DIscharges in spawning areas
during spawning seasons shall be
avoided, - . - -
(3) Discharges shall not-restrict or
impede the movement of aquatic species
indigenous to the waters or the passage
of normal or expecte4 high flows or
cause the relocation of the water (unless
the primary purpose of the flU).s to
Impound water ,). . -
(4) lIthe discharge creates an
impoundment of water, adverse Impacts
on the aquatic system caused by the
-accelerated passage of water and/or the
restriction of Its flow shall be
minimized. -
(5) DIscharge In wetlands areas shall
be avoided. -
(6) Heavy equipment working In
wetlands shall be placed on mats.
(7) Discharges Into breeding areas for
migratory waterfowl shall be avoided.
(8) All temporary fills shall be
removed in their entirety.
1330.7 NotIfication procedure..
(a) The general permittee shall not
begin discharges requiring pre-diacharge
notification pursuant to the nationwide
permit at § 330.5(a)(26):
(1) Until notified by the district
engineer that the work may proceed
under the nationwide permit with any
special conditions imposed by the
district or division engineer or
(2) U no ified by the district or
division engineer that an individual
permit may be required; or -
(3) Unless 20 day. have passed from
receipt of the notification by the district
engineer and no notice has been . -
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41258 Fede.i ,RegiSter / Vol. 51. No. Zig I Thursday . November 13. 1988 / Rules and Regulations
received from the district or division
engineer. ’ - ’ . - —
bJ Notification pursuant to the
lonwide permit at 1330.5(a)(26) must
In writing and include the -
iformaUon listed below. Notification is
not an admission that the proposed
work would result in more than minimal
Impacts to waters of the United States; it
sunply allows the district or division
engineer to evaluate specific activities
for compliance with general permit
criteria.
(1) Name. address. and phone number
of the general permittee;
(2) Location of the planned work;
(3) Brief description of the proposed
work, Its purpose. and the approximate
size of the waters. including wetlands.
which would be lost or substantially
adversely modified as a result of the
work and
(4) Any specific Information required
by the nationwide permit and any other
Information that the permittee believes
Is appropriate.
(c) District engineer review of
noLificotioti. Upon receipt of
notification, the district engineer will
promptly review the general perniittee’s
notifica Lion to determine which of the
following procedures should be
foflowedi
(1) lIthe nationwide permit at
330.5(a)(28) Is involved and the district
engineer determines either. (i) the
roposed activity falls within a class of
ischargee or will occur in a category of
waters which has been previously
Identified by the Regional
Administrator. Environmental Protection
Agency the Regional Director. Flab and
Wildlife Service; the Regional Director,
National Marine Fisheries Service: or
the heads of the appropriate state
natural resource agencies as being of
particular interest to those agencies: or
(ii) the particular discharge has not been
previously Identified but he believes it
may be of importance to those agencies.
he will promptly forward the
notification to the division engineer and
the head and appropriate staff officials
of those egc ncles to afford those
agencies an adequate opportunity before
such discharge occurs to consider such
notification and express their views, if
any, to the district engineer concerning
whether individual permits should be
requIred.’
(2) lIthe nationwide permits at
§ 330.5(a) (7), (17). or (21) are involved
and the Environmental Protection
Agency. the Fish and Wildlife Service.
the National Marine Fisheries Service or
the appropriate state natural resource or
water quality agencies forward concerns
to the district engineer. he will forward
those concerns to the division engineer
together with a statement of the factors
pertinent to a determination of the
environmental effects of the proposed
discharges. including those set forth in
the 404(b)(1) guidelines, and his views
on the specific points raised by those
agencies.
(3) If the nationwide permit at
§ 330.5(a)(Zl) is involved the district
engineer will give notice to the
Environmental Protection Agency and
the appropriate state water quality
agency. This notice will include as a - -
minimum the information required by
paragraph (b) of this section.
(d) Division engineer review of
notification. The division engineer will
review all notifications referred to him
in accordance with paragraph (c)(l) or
(c)(2) of this section. The division
engineer will require an individual
permit when he determines that an
activity does not comply with the terms
or conditions of a nationwide permit or
does not meet the definition of a general
permit (see 33 CFR 322.2(f) and 323.2(n))
including discharges under the
nationwide permit at 330.5(a)(28)
which have more than minimal adverse
environmental effects on the aquatic
environment when viewed either
cumulatively or separately. In reaching
his decision. be will review factors
pertinent to a determination of the
environmental effects of the proposed
discharge. including those set forth In
the 404(b)(1) guidelines, and will give
full consideration to the views, if any, of
the federal and state natural resource
agencies identified in paragraph (c) of
this section. If the division engineer
decides that an Individual permit Is not
required. and a federal or appropriate
state natural resource agency has
indicated in writing that an activity may
result in more than minimal adverse
environmental impacts, he will prepare
a written statement, available to the
public on request. which sets forth his
response to the specific points raised by
the commenting agency. When the
division engineer reaches his decision
he will notify the district engineer, who
will immediately notify the general
permittee of the division engineer’s
decision.
* 330.1 DIecrstiOn 7 authority.
Except as provided in paragraphs (c)
(2) and (d) of this section, division
engineers on their own initiative or upon
recommendation of a district engineer
are authorized to modify nationwide
permits by adding regional conditions or
to override nationwide permits by
requiring individual permit applications
on a case-by-case basis. for a category
of activities, or In specific geographic
areas. Discretionary authority will be
based on concerns for the aquatic
environment as expressed in the
guidelines published by EPA pursuant to
section 404(b)(1). (40 CFR Part 230)
(a) Activity Specific condjbOflS.
Division engineers are authorized to
modify nationwide permits by adding
individual conditions on a case-by-case
basis applicable to certain activities
within their division. Activity specific
conditions may be added by the District
Engineer in instances where there is
mutual agreement between the district
engineer and the permittee. Furthermore.
district engineers will condition NWPs
with conditions which have been
imposed on a state section 401 water
quality certification Issued pursuant to
§ 330.9 of this Part.
(b) Regional conditions. Division
engineers are authorized to modify
nationwide permits by adding
conditions on a generic basis applicable
to certain activities or specific
geographic areas within their divisions.
In developing regional conditions.
division and district engineers will
follow standard permit processing
procedures as prescribed in 33 CFR Part
325 applying the evaluation criteria of 33
CFR Part 320 and appropriate parts of 33
CFR Parts 321. 322. 323. and 34
Division and district engineers will take
appropriate measures to inform the
public of the additional conditions.
(c) Individual perrnhts—(l) Case-by-
Case. In nationwide permit cases where
additional Individual or regional
conditioning may not be sufficient to
address concerns for the aquatic
environment or where there is not
sufficient time to develop such
conditions under paragraphs (a) or (b) of
this section. the division engineer may
suspend use of the nationwide permit
and require an individual permit
application on a case-by-case basis. The
district engineer will evaluate the
application and will either issue or deny
a permit. However, if at any time the -
reason for taking discretionary authority
Is satisfied, then the division engineer
may remove the suspension. reactivating
authority under the nationwide permit.
Where time is of the essence. the district
engineer may telephonically recommend,
that the division engineer assert
discretionary authority to require an
Individual permit application for a
specific activity. U the division engineer
concurs, he may orally authorize the
district engineer to Implement that
authority. Oral authorization should be
followed by written confirmation.
(2) Category. Additionally, after
notice and opportunity for public
hearing, division engineers may decide
that individual permit applications
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- Federal Register / VoL 51.
No. 219 /.Thursday, Nove ber 13.1986 / Rules and Regi.ilatioflS -41259
should be required for categories of
activities, or in specLfic geographic
areas. However, only the Chief of
Engrneers may modify, suspend, or
revoke nationwide permits on a
statewide or nationwide basis. The
division engineer will announce the
decision to persons affected by the
‘action. The district engineer will then
regulate the activity or activities by
processing an application(s) for an
individual permit(s) pursuant to 33 CFR
Part 325.
(d) For the nationwide permit found at
§ 330.5(a)(26). after the applicable
provisions of § 330.7(a) (1) and (3) have
been satisfied, the permittee’s right to
proceed under the general permit may
be modified, suspended, or revoked only
in accordance with the procedure set
forth in 33 CFR 325.7.
(e) A copy of all modifications or
revocatioris of activities covered by
nationwide permits will be forwarded to
the Office of the Chief of Engineers.
ATI’N: DAEN-CWO-N.
§ 330.9 State water quality certification.
(a) State water quality certification is
required for nationwide permits which
may result in any discharge into waters
of the United States. If a state issues a
water quality certification which
includes special conditions, the district
engineer will add these conditions as
conditions of the nationwide permit in
that state. However, if such conditions
do not comply with the provisions of 33
CFR 325.4 or if a state denies a required
401 certification for a particular
nationwide permit. authorization for all
discharges covered by the nationwide
permit within the state is denied without
prejudice until the state issues an
individual or generic water quality
certification or waives its right to do so.
A district engineer will not process an
individual permit application for an
activity for which authorization has
been denied without prejudice under the
nationwide permit program. However. If
the division engineer determines that it
would otherwise be appropriate to
exercise his discretionary authority.
pursuant to § 330.8. to override the
nationwide permit or permits in
question, he may do so. and the district
engineer may proceed with the
processing of ind.vidual permit
applications. In instances where a state
has denied the 401 water quality
certification for discharges under a
particular nationwide permit, applicants
must furnish the district engineer with
an individual or generic 401 certification
or a copy of the application to the state
for the certification. If a state fails to act
within a reasonable period of time (see
* 325.2(b)(1)(ll)), a waiver will be
presumed. Upon receipt of an individual
or generic certification or a waiver pf
certification, the proposed work is
authora.zed under the nationwide permit.
If a state issues a conditioned individual
certification, the district engineer will
include those conditions that comply
with 33 CFR 32.5.4 as special conditions
of the nationwide permit (see 33 CFR
Part 330.8(a)) and notify the applicant
that the work is authorized under the
nationwide permit provided all
conditions are met.
(b) Certification requirements for
nationwide permits fall into the
following general categories:
(1) No certification required.
Nationwide permits numbered 1, 2, 4. 5.
8, 9. 10, 11, and 19 do not involve
activities which may result in a
discharge and therefore 401 certification
is not applicable.
(2) Certification sometimes required.
Nationwide permits numbered 3, 6, 7, 13.
20, 21, 22, and 23 each involve various
activities, some of which may result in a
discharge and require certification, and
others of which do not. State denial of
certification for any specific nationwide
permit In this category affects only those
activities involving discharges. Those
not involving discharges remain in
effect.
(3) Certification required. Nationwide
permits numbered 12. 14, 15, 16, 17, 18.
24. 25. and 26 involve activities which
would result in discharges and therefore
401 certification Is required.
(c) District engineers will take
appropriate measures to Inform the
public of which waterbodies or regions
within the state, and for which
nationwide permits, an individual 401
water quality certification is required.
§ 330.10 Coastal zone management
Cofl&stency determination.
In instances where a state has not
concurred that a particular nationwide
permit is consistent with an approved
coastal zone management plan.
authorization for all activities subject to
such nationwide permit within or
affecting the state coastal zone agency’s
area of authority is denied without
prejudice until the applicant has
furnished to the district engineer a
coastal zone management consistency
determination pursuant to section 307 of
the Coastal Zone Management Act and
the state has concurred in it. If a stdte
does not act on an applicant’s
consistency statement within six months
after receipt by the state, consistency
shall be presumed. District engineers
will take appropriate measures to inform
the public of which waterbodies or
- regions within the state, and for which
nationwide permits. such Individual
consistency determination is required -
District engineers will not process any
permit application for an activity which
has been denied without prejudice
under the nationwide permit program.
However, if the division engineer
determines that it would otherwise be
appropriate to exercise his di retionary
authority, pursuant to * 330.8. to
override the nationwide permit or
permits in question. he may do so, and
the district engineer may proceed with
the processing of individual permit
- applications.
§330.11 NatIonwide permit verifIcatIon.
(a) General permlttees may. and In
some cases must, request from a district
engineer confirmation that an activity
complies with the terms and conditions
of a nationwide permit. District
engineers will respond promptly to such
requests. The response will state that
the verification is valid for a period of
no more than two years or a lesser
period of time if deemed appropriate.
Section 330.12 takes precedence over
this section. therefore, It Is incumbent
upon the perinlttee to remain Informed
of changes to nationwide permits.
(b) If the district engineer decides that
an activity does not comply with the
terms or conditions of a nationwide
permit, he will so notify the person
desiring to do the work and indicate that
an individual permit Is required (unless
covered by a regional permit).
(c) If the district engineer decides that
an activity does comply with the terms
and conditions of a nationwide permit
he will so notify the general permittee.
in such cases, as with any activity
which qualifies under a nationwide
permit. the general permittee’s right to
proceed with the activities under the
nationwide permit may be modified.
suspended, or revoked only in
accordance with the procedures of 33
CF’R 325.7.
§ 330.12 ExpIration of nationwide permits.
The Chief of Engineers will review
nationwide permits on a continual basis,
and will decide to either modify, reissue
(extend) or revoke the permits at least
every five years. If a nationwide permit
is not modified or reissued within five
years of publication in the Federal
Register, it automatically expires and
becomes null and void, Authorization of
activities which have commenced or are
under contract to commence in reliance
upon a nationwide permit will remain in
effect provided the activity is completed
within twelve months of the date a
nationwide permit has expired or was
revoked unless discretionary permit
authority has been exercised in
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l26O FderaI Register /,Vol. 51, No. 219 I Thursday, November 13, 1988 / Rules and Regulations
‘.cordance with 330.8 of this Part or
“ficatiori. suspension, or revocation
dures are initiated in accordance -
the relevent provisions of 33 CFR
.i. Activities completed under the
ithorization of a nationwide permit
hichwas lneffectatthetimethe -
rtivity was completed continue to be
Lithonned by that nationwide permit.
R Doc. 58-25301 FIled 11-1Z-18 &45 amj
LLSSQ cOOt flIO42-
-------
there arc no unresolved confliLts (i C • no
unres0l’1 objections rC ardiflg
alterflat e uses of a’. ailable resources
from Federal and State resource
aaCnCicS and members of the public
mmenting on the publ!C notice or nose
discerned by the district commander);
and. if the activitY is “water dependent”
in the rneiJfliflZ of 40 CFR 230.10(a)(3)
(for ischarge5 requiring a section 404
permit) the EA need not include a
discUSSiOfl on alternatives. Howevt r.
there is nothing in this regulation htch
would preclude the district commander
from considering other alternati’.es in
the public interest review for a permit
application if it is appropriate to do
This has been noted in the regulation.
The change In the scope of analysis is
ot an attempt to relieve the Corps of
‘responsibilities. Rather. it is to use good
judgment in the extent of analysis and to
Incorporate the holdings of certain
Federal court decisions to better
determine when the need to trigger an
overall review or “Federalization”
sbo’uld occur. The overall review takes
place when there is a significant Federal
jiterest, not just because of the need for
an Army permit for a minor part of the
rrerall project Therefore, the district
mmander must have the discretion to
determine the significance of the Federal
‘interest to justify the overall review.
1bI section has been rewritten to
lazify these concepts. and the term
sole discretionary authority” was
deleted to avoid any misunderstanding
Jhat the district engineer must comply
vith appropriate NEPA requirements.
‘The EA is prepared after all comments
are received on the public notice .and the
district commander has had an
opportunity to evaluate those comments.
Hence. it Is not possible to provide the
EAfor review during the public notice
period. Concerned Federal and State
- resource agencies and the public in
1esponse to the public notice provide the
Rcessary input to the Corps staff in
preparing the EA and form the basis for
r the district commander’s findings on the
case.
8 Environment 1 Impact Statement
P
mmenL - A comment was received
ggestlng that the district commander
,. tinwritingfortlmedelaysln
sing an EIS.
ponse: District commanders
tty are reporting on a quarterly
on permits over 120 days old and
ding an estimated date when final
will be taken. This report
..ude3 ’act!ons requiring an EIS.
eral word changes were made for
calion.
B—9 Organization and Content of Draft
US
Comment. Numerous comments were
received on this paragraph. The majorIty
concentrated on the scope of review of
alternatives required in an EIS for a
Department of the Army permit. Many
felt that the scope of review as written
could require a review of alternatives
beyond those the applicant could
reasonably accomplish, while others
believed the scope too narrow and
inadequate. Several suggested that a
preferred alternative be identified as the
“applicant’s preferred alternative”.
Ctnnments on mitigation ranged from
those who think it should be limited to
those ho believe It is being improperly
de.emphdsized. One commenter
requested clarification of the type of
mitigation and monitoring programs
legally required.
Response: Our Intent in this paragraph
is to have reasonable alternatives
considered in the EIS which could be
implemented by the applicant. Where
necessary for an informed decision on
the public interest, alternatives beyond
those that could be Implemented by the
applicant should also be considered.
The district commander’s final decision.
whether to grant or not grant the
authorization, or to grant it with
modifications and conditions, which
could require mitigation, Is dependent
on the result of the public interest
review required by the Corps regulation
at 33 CFR 320.4. That decision is
documented in the record of decision.
Since the Corps Is neither a proponent
nor an opponent of any proposal, the
final EIS will recognize the applicants
proposal as the “applicant’s preferred
alternative.” and the regulation has been
changed accordingly. In accordance
with CEQ regulations (40 CFR 15052(b)),
the environmentally preferred
alternative will also be Identified in the
record of decision. Paragraph 9b(5)(e)
has been rewritten to clarify the
mitigation considerations.
List of Subjects
33 CFR Part 230
Administrative practice and
procedure, Environmental Impact
statements, Environmental protection.
Flood control. Flood plains. Navigation.
Water resources. Water supply,
Waterways, Wetlands.
33 CFR Part 325
Administrative practice and
procedure. Intergovernmental relations.
Environmental protection. Navigation.
Water pollution control. Waterways.
Datecli January 28.1988.
3127
Appro cd
John S. Doyle. Jr.
Pr,ni.ipal Dcpuz A s,starit Secretor) oft a
• trr,w (Civil I
PART 230—(AMENDED]
I Ihe authority citation for Part 230 is
revised to read as follows.
Authority: National Environmental Polui.y
Act ( ‘.EPA) (42 USC 4321 ci seq ). E.O 15 4.
Protection and Enhancement of
En’. ,ronmental Quality. March 5.1970. as
errn’ndcd by E.O. 11991. May 24. 1077. dfld
CEQ Regulations Implementing the
Procedural Provisions of NEPA (40 Cl R
1507.3).
2. Part 230 is revised in its entirety to
read as follows:
PART 230—PROCEDURES FOR
IMPLEMENTiNG NEPA
Sec.
230.1 Purpose.
2302 Applicability.
230.3 References.
230.4 Definitions.
230.5 Responsible officials.
230.6 Actions norTnaUy requinng an EIS.
230.7 Actions normally requiring an
Environmental Assessment (EA) but not
necessarily an EIS.
230.8 Emer2ency actions.
2309 Categoslcel exclusions.
230.10 vi,onmental assessments (EA).
230.11 FindI gf No Significant Impact
(FONSI).
230.12 Notice of intent and scopuig.
230.13 Environmental Impact Statement.
(E IS).
230.14 Record of decision and
implementation.
230.15 Mitigation and monitoring.
230.16 Lead and cooperating agencies.
230.17 Filing requirements.
230.18 Availability.
230.19 Comments.
230.20 Integration with State and local
procedures.
230.21 Adoption.
230.22 Limitations on actions during the
NEPA process,
230.23 Predecision referrals.
230.24 Agency decision points.
230.23 Environmental review and
consultation requirements.
230.28 General considerations In preparing
Corps ElSe.
Appendix A—Processing Corps NEPA
Documents
Appendix B—Reserved
Appendix C—Notice of Intent to Prepare a
Draft EIS
Authorltyi National Environmental Policy
Act (NEPA) (42 U.S.C 4321 ci seq.): E.O. 1514,
Protection and Enhancement of
Environmental Quality, March 5.1970. as
amended by E.O. 11991. May 24,1977; and
CEQ Regulations implementing the
Procedural Provisions of NEPA (40 CFR-
1507.3). . -
Federal Register / Vol 53. No 22 / Wednesday . February 3. 1988 / Rules and ReguIat ons
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—— —-——. ———. -—- —
§ 230 1 Purpose.
This regulation provides guidance for
implementation of the procedural
“rovisions of the National
ronmental PQILCY Act ( .NEPAJ foz
:ivil Works Program of the U S.
.y Corps of Engineers. 11.
upp1ements Council on Environmental
Quality (CEQ) regulations 40 CFR Parts
1500 through 1508, November 29 ,1978. in
accordance with 40 CFR 1507.3. and Is
intended to be used only in conjunction
with the CEQ regulations. Whenever the
guidance in this regulation is unclear or
not specific the reader is referred to the
CEQ regulations. Appendix A provides
guidance on processing NEPA
documents except for those concerning
regulatory actions. Appendix C
(Formally ER 200-2.-i) has been added to
provide guidance on preparing and
processing a notice of intent to prepare
an EIS for publication in the Federal
Register for all types of Corps actions.
33 CFR Part 325. Appendix B provides
procedural guidance for preparing and
processing NEPA documents for
regulatory actions.
* 230.2 AppHcabillty.
This regulation is applicable to afl
HQUSACE elements and all Field
Operating Activities (FDA ,) hava g
responsibility for preparing and
processing environmental documents in
support of Civil Works functions.
138.3 RØerences.
) Executive Order 12291. Federal
— ugulation. February 17,1981 (46 FR
13193. February 19. 1981).
(b) Executive Order 12114.
Environmental Effects P hrnad of Major
Federal Actions. January 4.1979 (44 FR
1957. January 9. 1979).
(c) Clean Water Act (formerly known
as the Federal Water Pollution Control
Act) 33 U.S.C. 1344 (hereinafter referred
to as section 404).
(d) Endangered Species Act of 1973. as
amended. 16 U.S.C. 1531 etseg.
(e) Environmental Effects Abroad of
Major Department of Defense Actions:
Policies and Procedures 32 CFR Part 197
(44 FR 21786—92. April 12. 1979).
(f) Fish and Wildlife Coordination
Act. 16 USC. 661 etseq
(g) National Environmental Policy Act
of 1989. as amended. 42 U S C. 4321 et
seq
(h) National Historic Preser ation Act
of 1966. as amended. 16 U S.C 470 et
seq
(i) “Regulations for Iniplernenting the
Procedural Provisions of the National
Environmental Policy Act of 1969. (40
CFR Parts 1500 through 1508, November
29. 1978), Council on Environmental
Quality.
(fl Ecoiiom c arid Environmental
Principles and Guidelines for Water and
Related Land R.esourc Lmplementats,n
Studies (48 CFR Parts 10249 through
10258. March 10. 1983)
(k) Reguia tory Prugrams of the Corps
of Engineers 33 CFR Parts 320 through
330. arid 334.
(1) CEQ Information Memorandum to
Agencies C nntaimng Answers to 40
Most Asked Questions onNEPA
Regulations (48 FR 34293-68, July 28,
1983).
(in) ER 310-1-5. Federal Register Act
Requisitioning
(n) ER 1105—2—10 thru 60 Planning
Regulations.
§ 230.4 DefInitions.
Refer to 40 CFR Part 1508; other
definitions. may be found in the
references given above.
§ 230.5 Responsible officials.
The district commander is the Corps
NEPA official responsible for
compliance with NEPA for actions
within district boundaries. The district
commander also provides agency views
on other agencies’ environmental impact
statements (EIS). The Office of
Environmental Policy HQUSACE
(CECW-RE) WASH DC 20314-1000
(phone number 202-272-0166) is the
point of contact for information on
Corps NEPA documents. NEPA
oversight activities, review of other
agencies’ E IS a and NEPA documents
about legislation. regidatio . national
program proposals or other nmjor policy
issues. The Assistant Chief Counsel for
Environmental Law and Regulatory
Programs. HQUSACE (CECC-E) WASH
DC 20314—1000, is the point of contact
for legal questions involving
environmental matters. Requests for
information on regulatory permit actions
should be directed to HQUSACE
(CECW-OR) WASH DC 20314-1000.
§ 230.6 Actions normally requiring an EIS.
Actions normally requiring an EIS arr
(a) Feasibility reports for
authorization and construction of major
projects;
(b) Proposed changes in projects
which increase size substantially or add
additional purposes. and
(c) Proposed major changes in the
operation and/or maintenance of
completed projects.
District commanders may consider the
use of an environmental assessment
(EA) on these types of actions if early
studies and coordination show that a
particular action is not likely to have a
significant impact on the quality of the
human environment.
§2307 Actronsnormaftyrequinngan
Environmei’ital Assessment (EA) but riot
riecesssrtty an.E1S..
Actione normally reqthruigan EA. but
not an EIS. are listed below
aJRegv!ctcryActzons Most permits
will normally require only an EA.
(blAathorired Projects and Projects
Under Constractron Changes which
may be approved under the
discretionary authority of the Secretary
of the Army.
(c) Continuing Ai.rthorthes Prvgrarn.
Projcct commended for approval of
the Chief’of Engineers under the
foHowing authonties
(1) Section 205. Small Flood Control
Author. y
(2) Section 208. Snagging and Clearing
for Flood Control Authority-.
(3) Section 107. Small Navigation
Project Authority;
(4) Section 103. Small Beach Erosion
Control Project Authority and
(5) Section 111. Mitigation of Shore
Damages Attributable to Navigation
Projects.
(d) Construction and Operations and
Maintenance. Changes in environmental
impacts which were not considered in
the project EIS or EA. Examples are
changes in pool level operations. use of
new c sposel areas, location of bank
protection works. etc.
(e) Real Estate Management and
DisposolActzons. (1) Disposal of a Civil
Works project or portions of project
properties not reported as excess to the
General Services Administration.
(2) Disposal of real property for public
port and industrial purposes.
(3) Grants of leases or easements for
other than minor oil and gas
transmission lines, electric power
transmission lines, road and highway
rights-of-way, and sewage or water
treatment facilities and land fills.
§ 230.8 Emergency Actions.
In responding to emergency situations
to prevent or reduce imminent risk of
life, health, property, or severe economic
losses, district commanders may
proceed without the specific
documentation and procedural
requirements of other sections of this
regulation. District commanders shall
consider the probable environmental
consequences in determining
appropriate emergency actions and
when requesting approval to proceed on
emergency actions, will describe
proposed NEPA documentation or
reasons for exclusion from
documentation. NEPA documentation
should be accomplished prior to
initiation of emergency work if time
constraints render this practicable. Such
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rederal Register I Vol 5 ’3. No 22 / Wednesday rebruary 3 1G88 I Rules and Regulations
3129
document0tlOn may also be
uccomPhi ’ after the completion of
work. if appropriati’
EmergencY actions include Flood
Control and Coastal Emergencies
Activities pursuant to Pub L. 84—99. as
amended. and projects constructed
under sectionS 3 of the River and I larlior
Act of 1945 or 14 of the flood Control
Act of 1946 of the Continuing
Authorities Program. When possi’uk.
mergcflcY actions considered major in
scope with potentially significant
environment .il impacts shall l)C rufirrud
through the division commanders to
HQUSACE (CECWRE) for consultation
with CEQ about NEPA arrangements.
§ 230.9 Categorical exclusions.
Actions listed below when considered
individually and cumulati%ely do not
have significant effects on the quality of
the human environment and are
categorically excluded from NEPA
documentation. However, district
commanders should be alert for
extraordinary circumstances which may
dictate the need to prepare an EA or an
EIS. Even though an EA or EIS is not
Indicated for a Federal action because
cia “categorical exclusion”, that fact
does not exempt the action from
compliance with any other Federal law.
For example. compliance with the
Endangered Species Act, the Fish and
Wildlife Coordination Act, the National
Historic Preservation Act, the Clean
Water Act. etc.. is always mandatory,
even for actions not requiring an EA or
EI
(a) For a period clone year from the
effective date of these regulations.
district commanders should maintain an
information list on the tl pe and number
of categorical exclusion actions which
due to extraordinary circumstances
triggered the need for an EA and finding
of no significant impact (FONSI) or an
EIS. If a district commander determines
that a categorical exclusion should be
modified, the information will be
furnished to the division commander,
who will review and analyze the actions
and circumstances to determine if there
Is a basis for recommending a
modification to the list of categ cical
exclusions, HQUSACE (CECW-RE) Will
review recommended changes for
Corps-wide consistency and revise the
liet accordingly. See 33 CFR Part 325.
Appendix B for categorical exclusions
for regulatory actions.
(b) Activities at completed Corps
Projects which carry out the authorized
‘PrOject purposes. Examples Include
Out1ne operation and maintenance
Ctions, general administration.
quipmen purchases, custodial actions,
erosion control, painting. repair.
rr’hahilitation. replacement of existag
structures and facilities such as
buildings, roads, levces. groins aid
utilities, and installation of new
buildings utilities, or roadways iii
developed areas
(c) Minor mdintcnanc.e dredging using
existing disposal sites.
(d) Planning and technical studies
hich do not contain recommendations
fur authorization or funding for
i.onstruction. but may recommend
further study. This does not e clud
consideration of environmental m.itters
in the studies.
(ci All Operations and Maintenance
grants. general plans. agrecments. etc.,
necessary to carry out land use.
development and other measures
proposed in project authori7atlon
documents, project design memoranda,
master plans, or reflected in the project
NEPA documents.
(f) Real estate grants for use of excess
or surplus real property.
(g) Real estate grants for Government-
owned housing.
(h) Exchanges of excess real property
and interests therein for property
required for project purposes.
(i) Real estate grants for rights-of-way
which involve only minor disturbances
to earth, air, or water
(1) Minor access roads, streets and
boat ramps.
(2) Minor utility distribution and
collection lines, including irrigation.
(3) Removal of sand, gravel, rock, and
other material from existing borrow
areas.
(4) Oil and gas seismic and gravity
meter survey for exploration purposes.
(j) Real estate grants of consent to use
Government-owned easement areas.
(k) Real estate grants for archeological
and historical investigations compatible
with the Corps Historic Preservation Act
responsibilities.
(I) Renewal and minor amendments of
existing real estate grants evidencing
authority to use Government-owned real
property.
(m) Reporting excess real property to
the General Services Administration for
disposal.
(a) Boundary line agreements and
disposal of lands or release of deed
restrictions to cure encroachments.
(a) Disposal of excess easement
interest to the underlying fee owner.
(p) Disposal of existing buildings and
improvements for off-site removal.
(q) Sale of existing cottage site areas.
(r) Return of public domain lands to
the Department of the Interior.
(s) Transfer and grants of lands to
other Federal agencies.
§ 230 10 nvironmentat Assessments
(EA)
(a) Purpose An Ei\ is a brief
document hich provides sulfiLient
information to the district commander
on potential environmental effects of the
proposed .iction and, if appropriate its
,jliernativcs, for determining whothir to
prepare an ELS or a FONSI (40 Cl’R
1500 9) The district commandir is
n ’sponsible for niaking this
determination and for keeping the public.
informed of the availability of the Ei\
and FONSI.
(b) Formal. While no special forrn.it is
required. the EA should include a brief
discussion of the need for the proposed
action. or appropriate alternatives ii
there are unresolved conflicts
concerning alternative uses of available
resources, of the environmental impacts
of the proposed action and alternatives
and a list of the agencies. interested
groups and the public consulted. The
document Is to be concise for
meaningful review and decision.
(c) Integration with Corps Reports. In
the case of planning and/or engineering
reports not requiring an EIS. the EA may
be combined with or Integrated into the
report. The same guidance on combining
or integrating an EIS within the report
shall apply equally to an EA. Where the
EA is combined with a C rps report or
prcpared as a separate document in the
case of construction, operating projects
and real estate actions requiring an EA.
the EA normally should not exceed 15
pages.
§ 230.11 FindIng of No S gnhflcant Impact
(FONSfl.
A FONSI shall be prepared for a
proposed action, not categorically
excluded, for which an EIS will not be
prepared. The FONSI will be a brief
‘summary document as noted in 40 CFR
1508.13. In the case of feasibility.
continuing authority, or special planning
reports and certain planning!
engineering reports. the draft FONSI and
EA should be included within the draft
report and circulated for a minimum 30-
day review to concerned agencies.
organizations and the interested public
(40 CFR 1501.4(e)(2)). In the case of
operation and maintenance activities
involving the discharge of dredged or fill
material requiring a public notice, the
notice will indicate the availability of
the EA/FONSI. For all other Corps
project actions a notice of availability of
the FONSI will be sent to concerned
agencies, organizations and the
interested public (40 CFR 1501.4(e)(1)).
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£ =4. CS L .A AS C A 34 Ca P — 4 ‘ ‘ 4— — — — — —
•‘0 -
230.12 P4 iC 01 id it and scopirig.
As soon as practicable after a
!ecislon is made to prepare an ES or
- ‘ ,lement. the scoping process for the
£15 or supplement will be
inced in a notice of intent..
4ance on preparing a notice of intent
a prepare an EIS for publication in the
ederal Register is discussed in
‘i ppendix C. Also, a public notice will
e widely distributed inviting public
)artic3patoa in the scoping process. As
inscribed in 40 CFR 1501.7 and
‘eference 3(m). this process is the key to
reparing a concise EIS and clarifying
he significant issues to be analyzed in
lcpth. Public concerns on issues. studies
ieeded. alternatives to be examined.
procedures and other related matters
will be addressed during scoping.
230.13 Envl,onment k pect Statement
(ElS) .
An EIS 1 i feasibility or continuing
authority repasts and certain planningl
engineering reports may be combined
with or integrated into the report in
accordance with 40 CFR 1500.4(Q) and
1506.4. An £15 combined with the report
shall follow the format in 40 CFR
1502.10. follow the main report. use
colored paper and not be an attachment
or appendix. An EIS integrated within
the report may follow the Instructions in
the last paragraph of 40 C R 1502.10.
Additional guidance on combining and
-‘egrating ElSa Is located In ER 1105—2—
Where the E1S is not combined with
itegra ted Into the project document.
£15 shall be a separate document
and follow the format in 40 CFR 1502.10.
CEQ regulations suggest maximum
lengths for the text of an EIS at 40 CFR
1502.07. An effort should be exerted to
cover the substantive topics simply and
concisely to the extent practicable, and
consistent with producing a legally and
technically adequate £15. Normally, the
CEQ page limits should be meL
(a) Draft and Final ElSa. Guidance on
ElSa prepared for planning and certain
planning/engineering studies is
contained in ER 1105—2—10 thru 60. 33
CFR Part 325. Appendix B contains
guidance for regulatory actions. For final
ElSs which are not combined with or
integrated into the report, the final EIS
may take the form of an “abbreviated’s
document described in 40 CFR 1503.4(c).
An abbreviated final EIS should consist
of a new title page. summary. errata or
correction sheet(s) and comments and
responses. In filing the abbreviated final
£15 with EPA (Washington Office), five
copies of the draft £15 shall be included
in the transmittal. District commanders
shall be responsible for determining the
type of final EIS to prepare.
(b) SuppJeme.r’r s. A supplement to the
draft or final ES should be prepared
whenever required as discussed in 40
CFR 1502.0 c). A supplement to a draft
EIS should be prepared and filed in the
same manner as a draft £18 and should
be titled “Supplement 1”. “Supplement
II”. etc. The final EIS should address the
changes noted in the supplement and
substantive comments. received as a
result of crculation of the docurnenL A
supplement to a final £13 should be
prepared and fiLed first as a draft
supplement and then as a final
supplement. Supplements will be filed
and circulated in the same manner as a
draft and final ES (including the
abbreviated proc.erlue discussed in 13a.
above). Supplements to a draft ox final
EIS filed before 30 July 1979 may follow
the format of the previously filed £15.
Supplements to a draft £18 filed after
this date will follow the format outlined
in 40 CFR 1502.10. References to the
draft or final ES being supplemented
should be used to elim i oate repetitive
discussions in order to focus on the
important issues and impacts. The
transmittal letter to EPA as well as the
cover sheet should clearly identify the
title and purpose of the document as
well as the title and filing date of the
previous EIS being supplemented and
how copies can be obtained. The
decision may be made on the proposed
action by the appropriate Corps official
no sooner than 30 days after the final
supplement has been on file. A record of
decision will be signed when the
decision is made.
(c) Tiering. Tiering is discussed in 40
CFR 1502.20 and 150628 and should be
used in appropriate cases. The Inthal
broad ox programmatiC £18 must present
sufficsent information regarding overall
impacts of the proposed action so that
the deciaion.makers can snake a
reasoned judgment on the merits of the
action at the present stage of planning
or development and exclude from
consideration issues already decided or
not ready for decision. The irutial broad
EIS should also identify data gaps and
discuss future plans to supplement the
data and prepare and circulate site
specific EISs or EAs as appropriate.
(d) Other Reports. District
commanders also publish periodic
fact sheets and/or other supplemental
information documents on long-term or
complex EISs to keep the public
informed on the status of the proposed
action. These documents will not be
filed officially with EPA.
§ 230.14 Record of decision and
ImptementabOr i.
A record of decision shall be prepared
by the district commander, in
accordance ith 40 CFR 1505.2. for the -
signature of the final decisonmaker as
prescribed by appticab)e Corps
regulations Procedures iTnp)emerthng -
the decision are discussed in 40 CFR -
1505 3L Incoming letters of comment on
the fji-ial ES will be furnished for review.
by the decisionmaker who signs the
record of decision. For example. the - -
record of decision for feasibility rejwrts’
will be signed by the ASA(CW) at the
time the report is transmitted to
Congress fox authorization.
§ 230.15 ‘ itI ftoft and mooltoring.
See 40 CFR 1505.2(c) and 1505.3
District commanders shall, upon request
from interested agencies or the public, -
provide reports on the progress and
status of required mitigation and other
provisions of their decisions on Corps
projects. The term monitoring will be
interpreted as that oversight activity
necessary to ensure that the decision.
including required mitigation measures,
is implemented.
§ 230.16 Lead and cooperating agencies.
Lead agency, joint lead agency. and
cooperating agency designation and
responsibilities are covered in 40 CFR
1501.5 and 1501.8. The district
commander is author ed to enter into
agreements with regional offices of
other agencies as required by 40 CFR
1501.5(c). District or division
commanders will consult with
HQUSACE (CECW-RE). WASH DC
20314—1000 prior to requesting resolution.
by CEQ as outlined by 40 CFR 150L5 (e).
and (1).
(a) Lead Agency. The Corps will
normally be lead agency for Corps civil
works proieCts and will normally avoid
joint lead agency arrangements. Lead
agency status for regulatory actions Will
be determined on the basis of 40 CFR
1501.5(c).
(b) Corps as a Cooperating Agency
For cooperating agency designation the
Corps area of expertise or jurisdiction
by law is generally flood control.
navigation, hydropower and Corps
regulatory responsibilities. See
Appendix II of CEQ regulations (49 FR
49750. December 21. 1984).
§ 230.17 FilIng requirements.
Fi e copies of draft. final and
supplement EISs should be sent to:
Director. Office of Federal Actl%itIeS (A
104). Environmental Protection Agency.
401 M Street SW.. Washington. DC
20460. District commanders should file
draft ElSa and draft supplements
directly with EPA Final ElSs and final
supplements should be filed by
appropriate elements within HQUSA
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Federal Register / Vol 53. No 22 I Wednesday. February 3 19C8 I Rules and Regulations
3131
for feasibilitY and reevaluation reports
quinng Congressional authorization
DiviSiOfl commanders should file final
FISS and final supplements for all other
Corps acttOflS except for final EISs or
final supplements for permit actions
which should be filed by the district
commander after appropriate reviews
by divisiol i and the incorporation of
divislOfl’5 corTllnentS in the EIS
HQUSACE and/or division will notify
field office counterparts when to
circulate the final EIS or final
supplement and will file the final
document with EPA after notified that
distribution of the document has been
accomplished.
(a) Timing Requirements Specific
timing requirements regarding the filing
f EISs with EPA are discussed in 40
cFP . i506 .1o. District commanders will
forward any expedited filing requests
with appropriate supporting information
through channels to CECW-RE. Once a
decision is reached to prepare an EIS or
supplement. district commanders will
establish a tune schedule for each step
of the process based upon
considerations listed in 40 CFR 1501 8
and upon other management
considerations. The time required from
the decision to prepare an EIS to filing
the final EIS normally should not exceed
oneyear (46 FR 18037. March 23. 1981).
For feasibility. continuing authority, or
reei luation studies, where the project.s
study time is expected to exceed 12
months, the twiing of the EIS should be
commensurate with the study time. In
appropriate circumstances where The
coats of completing studies or acquiring
information for an EIS i.e., cost in terms
of money, lime, or other resources)
would be exorbitant, the district
commander should cousidersising the
‘mechanism described in 40 CFR 1.502.22,
as amended. In all cases, however, it is
the district commander’s responsibility
to assure that the time-limit established
for the preparation of an EIS or
supplement is consistent with the
purposes of NEPA.
Ib) Timing Requirements on
Supplements. Minimum review pedods
will be observed for Ci final
IUpplernent covering actions not ving
a bearing on the overall project for
w h i ch a final Ets has been filed. Such
Supplements shoiñd riot curtail other
Ougoing or scheduled actions on ie
sverall pro)ect which have already
mpbed with The procedural
require p 3 OINEPA.
Imie valtablgty.
and ne1HSS.and snements
‘Ifllea im1ab1e4othe piiblkaa
Plovided ia 40 CFR 1302. 19 and 150&6. A
NIZZnar , may hedrimlaled in lieu of the
EIS. as provided in 40 CFR 15’)2 19 if the
statemer.t is unusually long Tnese
documents will normally be made
available without charge except that, in
unusual circumstances. reproduction
costs may be recovered in accordance
with 40 CFR 1506.6(1) from recipients
other than those required by CEQ to
receive the complete E!S.
§ 23O 19 Comments.
District commanders shall request
comments as set forth in 40 CFR 1503
and 1506.6. A lack of response may be
presumed to indicate that the party has
no comment to make.
(a) Time Extensions District
commanders will consider and act on
requests for time extensions to re aew
and comment on an EIS based on
timeliness of distribution of the
document. prior agency involvement in
the proposed action, and the action’s
scope and complexity.
(bJ Pubhc Meetings and Hearings. See
40 CFR 1506.6(c). Refer to paragraph 12,
33 CFR Part 325. Appendix B for
regulatory actions.
(c) Comments Received on the Dmft
US. See 40 CFR 15034. District
commanders will pay particular
attention to the display in the final EIS
of comments received on the draft EIS.
In the case of abbreviated final EISa,
follow 40 CFR 1503.4(c). For all other
final EISa. oommects and agency
responses thereto wlll be placed in an
appendix in a format most ef&iant for
users of thet inalE lSto.understand the
nature of public input and the district
commandefs consideration thereof.
District commanders wdl avoid lengthy
or repetitive verbatim reporbng of
comments and will keep responses clear
and concise.
(d) Comments Received an the Final
EIS. Responses to comments received on
the final EIS are required .only when
substantive issues are raised which
have not been addressed in the EIS. In
the case of feasibility reports where the
final report and EIS Board of Engineers
for Rivers and Harbors ICEBRI-l ) or
Mississippi River Commission (CEMRC)
report. and the proposed Chiefs report
are circulated for review, Incoming
comment letters will normally be
answered. if appropriate, by CECW-P.
After the review period Is ova, CECW—
P will provide copies of all incoming
comments received In HQUSACE to the
district commander for use in preparing
the draft record of decision.. For all other
Corps actions except regulatmy at fi ns
(See 33 CFR Part 325. Appen x B). Iwo
copies of all inanming. rj nm -nl fellers
(even if the letters do notzeq re
agency response) together with the
district commander’s responses if
.ippropnate) and ti’e druft record of
deosiori vill be submitted through
channels to the appropriate decision
authority In the case of a letter
recommending a rererral under 40 FR
Part 1504. reporting officers will notify
CECW-RE and request further guidance
The record of decision will not be sign. d
nor any action taken on the proposdi
until the referral cdse is resoLved
(e) Conlrncntzrrb’ on Other Agencics’
EISs See 40 CFR 1503.2 and 1503.3.
District commanders will provide
comments directly to the requesting
agency. CECW—RE will provide
comments about legislation. national
program proposals, regulations or other
major policy issues to the requesting
agency. See Appendix UI of CEQ
regulations. When the Corps is a
cooperating agency, the Corps will
provide comments on another Federal
agency’s draft EIS even the response
is no cummenL Comments should be
specific and restricted to areas of Corps
jurisdiction by lew arid special expertise
as defined in 40 CFR i.308.ISand
1508.26, generally inclading flood
controL oavtgatioci. hydropower. and
regulatory responsibihties. See
Appendix 11 of CEQ zegidations.
§ 230.20 lnt.gra on with Stats and local
procedures.
See 40 CFR 1506.2.
230.2l Adoption.
See 40 CFR 1506.3. A dist,rict
commander will norm.afly adopt another
Federal agency’s EIS and consider it to
be adequate unless the district
commander finds substantial doubt as to
technical or procedia’id adequacy or
omission of factors important to the
Corps decision. In suchcases, the
district commander will prepare a draft
and final supplement noting in the draft
supplement why the EIS was considered
inadequate. In all cases, except where
the document is not recirculated as
provided in 40 CFR 1506.3 b) or (c). the
adopted EIS with the supplement. if any.
will be processed in accordance with
this regulation. A district commander
may also adopt another agency’s EAJ
FONSL
§ 230.22 LImitations on actions during the
WEPA procuss.
See 40 CFR 1506.1.
* 230.23 Pred.clmon referrals..
See 41) Q ’R Part 1504. If the district
commander determines that a
predec on q ’e*exrsl Is’spprvprmate. the’
case w l be aent through division to
reach CW-PE not laker than 15 days
after the £nal S was €led with A.
Corps actions referred to CEQ by
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I Feosibiiity Studies
another Federal agency shall be
transmitted to CECW—RE for further
guidance See paragraph 19. 33 CFR Part
325. Appendix B. for guidance on
decision referrals affecting regulatory
sit actions.
_J0.24 Agency decision points.
The timing and processing of NEPA
documents in relation to major decision
points are addressed In paragraphs 11
and 14 and Appendix A for studies and
projects and 33 CFR Part 320 through 330
for regulatory actions.
230.25 EnvIronmental review and
consultation requirements.
See 40 CFR 1502.25.
(a) For Federal projects. NEPA
documents shall be prepared
concurrently with and utilize data from
analyses required by other
environmental laws and executive
orders. A listing of environmental laws
and orders is contained in table 3.4.3 of
Economic and Environmental Principles
and Guidelines for Water and Related
Land Resources Implementation Studies.
Reviews and consultation requirements.
analyses. and status of coordination
associated with applicable laws.
executive orders and memoranda will
be summarized in the draft document.
The results of the coordination
completed or underway pursuant to
these authorities will be summarized in
the final document. Where the results of
‘ te ongoing studies are not expected to
iterially affect the decision on the
oposed action, the filing of the final
.. ,IS need not be delayed.
(b) Executive Order 12114.
Environmental Effects Abroad of Major
Federal Actions, 4 January 1979. For
general policy guidance. see Federal
Register of April 12. 1979. 32 CFR Part
197. Procedural requirements for Civil
Works studies and projects are
discussed below.
(1) The district commander through
the division commander will notify
CECW-PE. PN. PS or PW as
appropriate, of an impending action
which may impact on another country
and for which environmental studies
may be necessary to determine the
extent and significance of the impact.
The district commander will inform
CECW—P whether entry into the country
is necessary to study the base condition
(2) CECW—P will notify the State
Department. Office of Environment and
Health (OES/ENH) of the district
commander’s concern, and whether a
need exists at this point to notify
officially the foreign nation of our intent
to study potential impacts Depending
on e’cpected extent and severity of
impacts, or if entry is deemed necessdry
the matter will be referred to the
appropriate foreign desk for action.
(3) As soon as it becomes evident that
the impacts of the proposed actions are
considered significant. CECW—P will
notify the State Department. The State
Department will determine whether the
foreign embassy needs to be notified.
and will do so if deemed appropriate.
requesting formal discussions on the
matter. When the International Joint
Commission (IJC) or the International
Boundary and Water Commission.
United States and Mexico (IBWC) is
involved in a study. the State
Department should be consulted to
deterrrune the foreign policj
implications of any action and the
proper course of action for formal
consultations.
(4) Prior to public dissemination, press
releases or reports dealing with impact
assessments in foreign nations should
be made available to the appropriate
foreign desk at the State Department for
clearance and coordination with the
foreign embassy.
§ 230.26 General considerations in
preparing corps EiSs.
(a) lnterthsczphnary Preparation. See
(40 CFR 1502.6).
(b) lncorporcuon by Reference. To the
maximum extent practicable. the EIS
should incorporate material by reference
in accordance with 40 CFR 1502.21.
Footnotes should be used only where
their use greatly aids the reader’s
understanding of the point discussed.
Citation in the EJS of material
incorporated by reference should be
made by indicating an author’s last
name and date of the reference in
parentheses at the appropriate location
in the E.IS. The list of references will be
placed at the end of the EIS. Only
information sources actually cited in the
text should appear in the reference list.
The reference list should include the
author’s na ne. the date and title of the
publication, personal communications
and type of communication (e g.. letter.
telephone. interview, etc).
Appendix A—Processing Corps NEPA
Documents
NEFA doc_’eils for Civil Works acti itie
other than pe— is will be processed in
accordance s un the instructions contained in
this appendi’ a—d applicable paragr.iphs in
the regulation.
Table of Contents
Tile
I Feasibility Studies
2 Continuir2 Authorities Program Studies
3 Projects in Preconstruction Engineering.
and Design. Construction, and Completed
Projects in an Operations and
Mjintenance Category
4 Other Corps Projects
a Preparation and Draft Review D
the reconnaissance phase, the district
commander should undertake environnie
studies along with engineering. econornjc
other technical studies to determine the
probable environmental effects of
alternatives and the appropnate NEPA
document to accompany the feasibility ,
report This environmental evaluation sh
be continued in the feasibility phase. and Lf ’.
the need for an EIS develops the district :
commander will issue a notice of intent asl
early in the feasibility phase as possible. :3
Following the guidance in ER 1105—2—10
throug ). the district commander will
prepare draft feasibility report combuxung
integrating the draft EIS or EA and draft
FONSI (as appropriate), or a separate NEPA 1
document and circulate it to agencies.
organizations and members of the public
known to have an interest in the study. Five
copies of the draft EIS and report will be
mailed to Director. Office of Federal
Activities (A—104). Environmental Protection
Agency. 401 M Street SW. Washington. DC
20460 for filing after distribution has been
accomplished. After receipt and evaluatios
comments received, the district commander .‘
will prepare the final report and EIS or EA
and FONSI and submit it to the di ision -
commander for review.
b. Division Review After review, the
division commander will issue a public noti -
of report issuance and transmit the report to ‘
the CEBRH. On Mississippi River and
Tributaries projects. the district commander ,
will issue a public notice and submit the
report to the CEMRC. For the purpose of thii\
regulation. only the acronym CEBRH will be
used since the review functions of CE VIRC ‘
and CEBRH are similar. The notice will’
provide a 30.day period for comments to be
submitted to CEBRH on the report and E1S.
Although the EIS in the report is identified as
“final” at this stage of processing. it should
be made clear to all those requesting a copy
that it is an “interim Document under Agency
Review—Subject to Revision” and will
become the agency’s final EIS when it is flied
after CEBRH review
c. CEBRH Review CEBRH wilt review the
EIS at the same time it reviews the final
feasibility report. The report and EIS should
be compatible. If the CEBRH review reqUUes
minor re%tsions (with insignificant impacts)
to the plan as recommended by the di%isiofl
and district commanders. these changes and
impacts shall be noted in the CEBRH report.
If the CEBRH action results in major
revisions to the recommended plan and
revisions are variants of the plan or are
within the range of altemdtit es considered
and discussed in the draft EIS an addendum
to the final EIS will be prepared by CESRH
(with assistance from the district comma d
as required) This addendum ‘pac¼age
be identified as an “Addendum to the Final
EtS—Envuronnient l Consequences of the
Modifications Rerommended by the g 0 d 0
Engineers for Rivers .ind Ilurbors_Protect
ndme “The format shall include an abstract
on the cover page. recommended haflges tO
the division/district commander s proposed
pi n. rjiiondlc for the recorrirnended chafl 5 ’
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Federal Register / Vol 53. t .o 22 I Wednesday. Februdry 3. 1988 / Rules and Regulatons
3133
envlriCutt consequences of ih
recomme ed changes. and the name
expcrisecPlme. expenence. and role of
the priflClP preparetis) of the addendum.
etIcrs received during CEBRH revew which
provide new pertinent information having a
bearing on the modifications recommended
by CEBRH will be attached to the addendum
f CEBR proposes to recommend a major
reviSIOfl or a new alternatwe to the plan
recommended by the division and district
commanders with significant impacts which
were not discussed in the draft EIS. a
supplement to the th’ ft EIS will be required.
Alter consultation with CEBRH and the
division commander, the district commander
win prepare and circulate the supplement to
the draft EIS in accordance with paragraph
13(b The supplement together with incoming
letters of comment and Corps responses to
substantive issues shall be incorporated into
the existuig final report and EIS with a
minimum of page changes or revision, to
reflect the modified or new proposed plan.
BR14 will review its proposed action in
• fight of the comments received pnor to taking
bal action on the report and US.
i i. DepartmentoiReview. The report and
:.. final EIS, together with the proposed report of
- the Chief of Engineers and the RH report.
will be filed with U’A at about the same time
u t is circulated for the 90-day departmental
- review by Federal agencies at the
• — Washington Level and the concerned state(s).
-Dastrict commanders will drculat the
. ropoaed Chiefs report ( I ! report and
; report and final US to parties on the
*pmject mailing List not contacted by
*4QUSACE (groups and individuals known to
an interest in the study or who provided
. comments on the draft US) allowing the
:.s normal 30-day period of review. HQUSACE
‘.. will provide a standard letter forthe district
to use to transmit these document., which
explains the current status of the report and
£15 and directs all comments to be sent to
HQUSACE (CECW-P). Copies of the report
eppendice circulated with the draft need not
; be circulated with the report and final US.
- All letters of comment received on the report
j..and final US togetherwith HQUSACE
responses and the draft record of decision (to
-‘%e provided by the district commander) will
be included with other papers furnished at
• the time the final Chiefs report is transmitted
(10 ASA{CW) For further review and
Piocessing
e. €xecutsve Reviews. After completion of
- ‘Teview, The Chief of Engineers will sign hi,
report a transmit the report and
‘COoTnpanying document, to ASA(CW). After
Seesaw ASA(CW) will transmit the aport to
0MB requesting Its views in reiatiq ao the
Programs of the President After 0MB
Provides Its views, ASA(CW) will sign the
leaned of decision (ROD) and transmit the
report to Congress. In situations where
Congress has acted to authorize construction
ui* project prior to receiving ASA(CW)
le innlendabons, the Director of Civil
Wericais the designated official to eign the
ROD. in this case the ROD slionid only
!ddtess the project as authorized by the
0 ess and not attempt to provide any
Idddtonal flce of the Congressional
2 Co tinuing Authorities Program S!idjes
a Preparation and Draft Review During
the reconnaissance phase, the district
commander should undertake environmental
studies along with engineering, economic and
other technical studies to determine the
probable environmental effects of
alternatives and the appropnateNEPA
document to accompany the detailed project
report (DPR) lithe results of the
reconnaissance phase warrant preparation of
an US. the district commander will issue a
notice of intent early in the ensuing
feasibility study Following the guidance in
ER 1i05- .2—10 through 60 the district
commander will prepare the draft DPR
incorporating the EA and draft FONSI or
draft EIS (as appropriate), and circulate it to
agencies, organizations and members of the
public known to have an interest in the stud)
If an EIS is prepared, five copies of the draft
EIS and report will be mailed to Director.
Office of Federal Activities (A—lot),
Environmental Protection Agency, 401 M
Street SW. Washington. DC 20460 for riling
after distribution has been accomplished.
b. Agency Review. After receipt and
evaluation of comments the district
commander Will prepare the final DPR and
EA/FONSI or final EIS end submit eight (8)
copies to the division commander for review
and approval. After review. the division
commander will file five (5) copIes of the
final DPR and EIS with the Washington office
of EPA. The division commander will not file
the final EIS until notified by the district
commander That distribution has been
accomplished.
c. Final Review. Letters of comment on the
final DPR including the final EIS will be
answered by the district commander on an
individual basis If appropriate. Two (2)
copies of all Incoming letters and the district
commander’s reply together with five copies
of the final DPR and £15 and a draft of the
record of decision will be submItted through
division to the appropriate element within
C!CW-P. After review of the DPR &nd NEPA
documents, the Director of Civil Works or
Chief. Planning Thvlsion will approve the
project and sign the record of decision ian
EIS was prepared for the DPR.
3. Projects in Preconstrzuc.cioi , Engineering
and Design. Constructi and Co.cnpkled
P.ojecis in an Operations and Maintenance
Category
a. General. District commanders will
review the .exlsUngNEPAdocutnent(s) to
determine If-there are new rvunistances or
significant impacts which warrant the
preparation of a draft and final euppiement to
the US. lithe proposed changes end new
impacts are not significant an EA and FONSI
may be used.
b. Preparation and Draft Review. As soon
as practicable after the district commander
makes a determination to prepare an £15 or
supplement for the propo.ed project, a notice
of intent will be assired. The dis*x4ct
cemmander will. In accordance with 40 CFR
1506.8. prepare and circulate the draft US or
supplement for review and ownment to
agencies, groups and Individuals known who
may be Interested or affected. Five 15) copIes
will besent to Duectoe’,Office of Federal
aCt”.lties (ui 1O4) Environmental Prutecion
Agency 401 M Street S\%, Washtngion DC
20460 for filing after distribution has been
accomplished.
c. Agency Rei iei, The district commander
will prepare uie final EIS or supplement alter
receipt and evaluation of comments Eight 18)
copies will be transmitted to ihe division
commander for reiiew Alter review the
division commander will file five (5) copies
with the Washington office of EPA. A copy of
the final US or supplement and trar.smiital
letter to EP. will be provided to the
appropriate counterpart office within
HQUSACE. The division commander will file
the final F.IS when the district commander
has made distribution.
d. Final Review Letters of comment on the
final £1 5 or supplement will be answered by
the district commandm’oa an individual basis
as appropri,ite. Two £2) copies of the
iriconurig letters arid the district commander’s
reply together with two copies of the final US
or supplement and a draft of the record of
decision will be submitted to the appropriate
Corps official having approval authority.
After review of the NEPA doawieiita arid
letters, the a [ late approving official will
sign the record of decision.
OtherC psP ’ n a ct s . Draft and final
ElSa for other Civil Works projects or
activities having significant environmental
Impacts which may be authorized by
Congress without an EiShav ing been
previously filed and for certain real estate
management and disposal actions which may
reqwre an US should beproceaaed na
manner sunder to thst in
paragraph 3of th appendixezcept that
CERE-MC will be the coordinating office
within HQUSACZ for real estate actions.
Appendix B ’-jReservedl
Appendix C — ’4ctice of Intent to Prepare
a Draft US
1. Propose. This appendix provides
guidance on the preparation and processing
of a notice of intent to prepare a draft US for
publication in the Federal Register. A riotice
of intent to prepare a draft US era theft
- supplement is discussed in 40 CFR 1508.22.
2. Pr we District commanders shall
publish a notice of intent In the Federal
Register as soon as practicable after a
decision is made to prepare a draft US or
draft supplement See 40 CFR 1507. e) for
timing of notice of intent for Coups feasibility
studies, Guidance on the format and content
of the notice lathe formof. sample notice of
intent Is contained ui paragraph 4 c i this
appendix. District onmiesndors shall also
follow this guidance when poblishing a notice
of Intent to withdraw a notice of intent when
a decision has been made to terminate the
US process.
3, Publishing Documents in the Federal
Register. The following information Is
furnished for preparation and publication of
notices of Intent in the Federal Register
a. A brief transmittal letter ladosing three
(3) signed copies of the notice of intent should
be processed through local Ouief.tnforinatlon
Management dianne), to: HQDA.. SFIS-APP.
ATIN: Department of the Army Liaison
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Officer with the Office of the Federal
Register Alexandria VA 22331—0302. This
office will review and correct (if needed) all
documents prior to publication in the Federal
Register.
The notice must be signed by the official
ing the document along with the signers
ed name, rank and position title for
. iilitary officials or name and position title
for civilian officials. A signer cannot sign “as
acting” or “for” if another name is shown in
the signature block All three copies sent
forward must be signed in ink. A xerox copy
of the signature is not allowed.
c. A six.digit billing code number must be
typed or handwritten in ink at the top of the
first page on all three copies of a notice. This
billing code number can be found on GPO
bills. GPO Form 400. in the upper left corner
opposite the address. The billing code
number will be Indicated as 3710-XX FOAs
must submit an open-end printing and
binding requisition. Standard Form I. each
fiscal year to cover Federal Register printing
costs (reference 3(n)). Completed requisitions
(SF—I) must be forwarded to reach
HQUSACE (CEIM-SP) WASH DC 203I4-I00
by 1 June of each year. Consult the local
chief. Information Management for
Assistance.
4. Sample Notice of Intent. The following is
a sample notice of intent to be used by
district commander,.
Department of Defense
Corps of Engineer. Department of the
Army, 3710-XX (Use Local Billing Code
Number)
Intent To Prepare A Draft Environment
Impact Statement (DEIS) For a Proposed
(Name and location of project. permit or
activity).
Agency U S. Army Corps of Engineers.
oD.
Action: Notice of Intent.
Summary. The summary should briefly
state in simple language what action is being
taken, why the action is necessary, and the
intended effect of the action. Extensive
discussion belongs under the Supplementary
Information caption.
For Further Information Contact. Questions
about the proposed action and DEIS can be
answered by (Provide name, telephone
number. arid address of the person in the
district or division who can answer questions
about the proposed action and the DEIS).
Supplementary Information The
Supplementary Information should Contain
the remainder of the necessary information of
the documenL It should contain any authority
citation. Federal Register citation to a
previously published document, or CFR
citation when appropriate and include a
discussion of the following topics
I Briefly describe the proposed action
2. Briefly describe reasonable alternatives
3 Briefly describe the Corps’ scoping
process which is reasonably foreseeable for
the DEIS under consideration. The
description
a Shall discuss the proposed public
involvement program and invite the
participation of effected Federal. state and
local agei cies. affected Indian tribes. and
other interested private organizations and
parties
b Shall ioei 1 ’ signiflcant issues to be
analyzed in cepin in he DEIS
c May discuss poss,ole assignments for
input into the E.IS ‘.inder consideration among
the lead and coooe”atirtg agencies.
d Shall ident:iy other environmental
review and consultation requirements
4 Indicate w”.ether or not a scoping
meeting will be ‘ie t d Indicate tune, date and
location if a mer:rig is scheduled.
5 Provide art est’riated date when the
DE.IS will be mace a ailable to the public.
(Provide date)
(Signature)
See par 3 b. for :r.sLuctions on signature
Note
• Text to be ouole.spaced Use block
format.
• Place locai oiihrig code number at the top
of the first page on au three copies.
• Margins—o”e :‘ch on top, bottom and
right side. ar.d r”e and one-half inches ott the
left side
• Pages must e numbered consecutively.
• Text shoufo e typed on one side only.
• Use 8 4 b 11 rich bond paper or
photocopy pa;er
PART 325—PROCESSING OF
DEPARTMENT OF THE ARMY
PERMITS
3. The aut or ty citation for Part 325
continues to read as follows:
Authonty 33 U S C. 401 et seq.: 33 U S.C.
1344.33 U S C. 4 3
4. Part 325. A;oendix B is added to
read as folIo ss.
Appendix B—\tP Implementation
Procedures for the Regulatory Program
I. Introductuor.
2. General
3. Developme’t of Information and Data
4 Elimination :i Duplication with State and
Local P aceo es
5 Public In ci’. ement
6. Categorucai E.’::usions
7. EA/FO SI C’c.ment
8 Environrre al L -noact Staternent—Ceneral
9 Organiza’ er and Content of Draft ElSs
10 f otice of L:ett
11 Public He3 rg
12 Organuza’ o-i aio Content of Final EIS
13 Commens ?,eoe : ed on the Final EIS
14 EIS Supo t e ’ert
15 Filing Rec . :e ue’ut
16 Timing
17 Expedited F . —g
18 Record of Dec suon
19 Predecisio’ Referrals by Other Agencies
20 Review of O&er .Agencies’ EISs
21 Monutorirg
I lntroduc:.ar - In keeping with Executive
Order 12291 a’d 40 CFR 15002. where
interpretive prooie’ns arise in implementing
this regulation. a ’ d consideration of all other
factors do not g’.e a clear indication of a
reasonable ui:epre’ation. the interpretation
(consistent wi.ri e soirit and intent of
NEPA) which .esults in the least paperwork
and delay will be used Specific e’caripli
ways to reduce paperwork in the NEP k
process are found at 40 CFR 15004 Max
advantage of these recommendations ib
be taken -
2. General This Appendix sets forth-
implementing procedures for the Corpr
regulatory program For additional -
see the Corps NEPA regulation 33
230 and for general policy guidance. see
CEQ regulations 40 CFR 1500—1508. -
3. Development of Information and 1
See 40 CFR 1506 5 The district engineu
require the applicant to furnish approp .jsl
information that the district engineer
consider necessary for the preparatio i
Environn’tental Assessment (EA) or
Environrn’ental Impact Statement (RJS), g.
also 40 CFR 1502.22 regarding incomplete
unavailable information.
4. Elimination of Dt.zphcotion with ,
and Local Procedures. See 4!’’
5 Public Involvement. Several para ’aj
of this appendix (paragraphs 7, 8. 11, 13.1
19) provide information on the requiremen
for district engineers tp make available to th
public certain environmental documents th
accordance with 40 CFR 1506.6.
6 Categorical Exclusions—a.
Even though an EA or EIS is riot legally
It
manda ted for any Federal action falling
within one of the “categoncal exclusions,
that fact does not exempt any Federal a”
from procedural or substantive compliaaa
with any other Federal law, For example
compliance with the Endangered Species
the Clean Water Act. etc.. is always
mandatory, even for actions not requirm
EA or EIS The following activities are ni
considered to be major Federal actions
significantly affecting the quality of the .,
human environment and are therefore
categoncally excluded from N A
documentation.
(1) Fixed or I
small docks, boat hoists and b
(2) Minor utility distribution and Co
lines including irrigation,
(3) Minor maintenance dredging using
existing disposal sites,
(4) Boat launching ramps.
(5) All applications which qualify as
of permission (as described at 33 CFR
325 5(b)(2fl.
b Extraorthnary Circumstances . -
engineers should be alert for extraO inL
circumstances where normally excluded
actions could have substantial envirOflri
effects and thus require an EA or EIS Fat
period of one year from the effeCtiie data
these regulations. district engineers should
maintain an information list on the type s d
number of categorical exclusion actions i
which, due to extraordinary ciCulTiSta ” ”
triggered the need for an EA/FONSI or E )S.
a district engineer determines that a “
categorical exclusion should be modifi
information will be furnished to the divt StOS ‘,.
engineer who will review and anal e the
actions and circumstances to deterl ie if ir
there is a basis for a
modification to the list of categorical ‘e
exclusions HQUSACE (CECWO ) Wi l 1 ‘ ‘
review recommended changes for CorP5 d
consistency and re’.ise the list accord 8 1 1”
pierI
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itlatically significant in, the
4 tory are significantly adverse in
Id.
lon 320.10(d) uses the term
“ to Indicate that all
reduction In Impacts be
As Indicated by the
. rlate and practicable” provision.
which would be unreasonably
or would be Infeasible or which
I accomplish only Inconsequential
tions In impact need not be taken.
at Development and Restoration of
r Bodies
Ditat development and restoration
ie changes In open water and
nds that rninin l7e adverse effects
)posed changes or that neutralize
‘erse the effects of past changes on
osystem. Development may
ice a new or modified ecological
by displacement of some or all of
cistng environmental
icteristics. Restoration has the
itial to return degraded
onments to their former ecological
bitat development and restoration
;ontribute to the maintenance and
acement of a viable aquatic
ystem at the discharge site. From an
-onmental point of view, a project
vlng the discharge of dredged and
taterial should be designed and
aged to emulate a natural
ystem. Research, demonstration
and full scale implementation
pn done In many categories of
nent and restoration. The U.S.
. 1 d Wildlife Service has programs
velop and restore habitat The U.S.
y Engineer Waterways Experiment
on has published guidelines for
g dredged material to develop
and habitat, for establishing marsh
tatlon, and for building islands that
ict colonies of nesting birds. The
has a Clean Lakes program which
)lies funds to States and localities to
nce or restore degraded lakes. This
involve dredging nutrient..Iaden
ments from a lake and ensuring that
tent inflows to the lake are
rolled. Restoration and habitat
elopment techniques can be used to
mize adverse impacts and
ipensate for destroyed habitat
toration and habitat development
also provide secondary benefits
i as Improved opportunities for
loor recreation and positive use for
iged materials.
he development and restoration of
ile habitats in water bodies requires
ining and construction practices that
grate the new or Improved habitat
the existing environment Planning
ulres a model or standard, the
achievement of which Is attempted by
manipulating design and Implementation
of the activity. This model or standard
should be based on characteristics of a
natural ecosystem In the vicInity of a
proposed activity. Such use of a natural
ecosystem ensures that the developed or
restored area, once established. will be
nourished and maintained physically.
chemically and biologically by natural
processes. Some examples of natural
ecosystems Include, but are not limited
to. the foliowing salt marsh. cattail
marsh. turtle grass bed, small Island. etc.
Habitat development and restoration.
by definition. should have
environmental enhancement and
maintenance as their Initial purpose.
Human uses may benefit but they are
not the primary purpose. Where such
projects are not founded on the
objectives of maintaining ecosystem
function and integrity, some values may
be favored at the expense of others. The
ecosystem affected must be considered
In order to achieve the desired result of
development and restoration. In the
final analysis. selection of the
ecosystem to be emulated Is of critical
importance and a loss of value can
occur If the wrong model or an
incomplete model Is selected. Of equal
importance is the planning and
management of habitat development
and restoration on a case-by-case basis.
Specific measures to minimixe
Impactà on the aquatic ecosystem by
enhancement and restoration projects
include but are not limited to:
(1) Selecting the nearest similar
natural ecosystem as the model In the
implementation of the activity.
Obviously degraded or signjficantly
less productive habitats may be
considered prime candidates for habitat
restoration. One viable habitat,
however, should not be sacrificed In an
attempt to create another, i.e., a
productive vegetated shallow water
area should not be destroyed in an
attempt to create a wetland in its place.
(2) Using development and restoration
techniques that have been demonstrated
to be effective in circumstances similar
to those under consideration wherever
possible.
(3) Where development and
restoration techniques proposed for use
have not yet advanced to the pilot
demonstration or implementation stage,
initiate their use on a small scale to
allow corrective action if unanticipated
adverse Impacts occur.
(4) Where Federal funds are spent to
clean up waters of the U.S. through
dredging. scientifically defensible levels
of pollutant concentration In the return
discharge should be agreed upon with
the funding authority in addition to any
&;pllcable water quality standards in
order to maintain the desired improved T,.
water quality.
(5) When a sigruflcan ecological
change In the aquatic environment is
proposed by the discharge of dredged or
fill material, the permitting authority
should consider the ecosystem that will
be lost as well as the environmental
benefits of the new system.
Datedi December 12. 1980.
Douglas M. Coetle.
Admiiiis rator. Environmental Protection
Agency. -
Part 230 ls ’ rlsed to read as follows:
PART 230—SECTiON 404(b)(1)
GUIDEUP4ES FOR SPECIFICATION OR
DISPOSAL SITES FOR DREDGED OF
FILL MATERIAL
Subpart A—General
Purpose and policy.
Applicability.
Definitions.
Organization.
General procedures to be followed.
Adaptability.
General permits.
Subpart B—Compliance With the Guideline,
230.10 RestrictIons on discharge.
230.11 Factual determinations.
230.12 Findings of compliance or non-
compliance with the restrictions on
discharge.
Subpart C—Potential Impacts on Physical
and Chemical Characteristics of the
Aquatic Ecosystem
230.20 Substrate.
230.21 Suspended particulates/turbidity
230.22 Water.
230.23 Current pattern.s and water
circulation.
230.24 Normal water fluctuatIons.
220.25 SalinIty gradients.
Subpart D .—Potentlal Impacts on BIological
Characteristics of the Aquatic Ecosystem
230.30 Threatened and endangered species.
230.31 Fish, crustaceans. mollusks, and
other aquatic organisms in the food web.
230.32 Other wildlife.
Subpart E—Potentlal Impacts on Special
Aquatic Sites
230.40 Sanctuaries and refuges
230.41 Wetlands.
230.42 Mud fiats.
230.43 Vegetated shallows.
230.44 Coral reefs.
23045 Riffle and pool complexes.
Subpart F—Potential Etfects on Human Use
Characteristics
230.50 MunIcipal and private water
supplies.
230.51 RecreatIonal and commercial
fisheries.
230.52 Water-related recreation.
230.53 AesthetIcs.
Se
230.1
230.2
230.3
230.4
230.5
230.8
250.7
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Federal Register / Vol 45 No 249 I Wednesday. Decen’±er 24 1960 I Rules and Regi.ilatiors 85 4
Sec
230S4 Parks, national and histor,c
monuments, national seashores,
wilderness areas. research sites and
similar preserves
Subpart G—Evaiuation and Testing
23060 General evaluation of dredged or fill
material
23061 Chemical. biological, and physical
evaluation and testing
Subpart H—Actions to Minimize Adverse
Effects
230 70 Actions concerning the location of
the discharge.
230 71 Actions concerning the material to be
discharged.
23072 Actions controlling the material after
discharge
23073 Actions affecting the method of
dispersion
23074 Actions related to technology
23075 Actions affecting plant and animal
populations.
230 76 Actions affecting human use.
230.77 Other actions.
Subpart I—Planning To Shorten Permit
Processing Time
230.80 Advanced Identification of disposal
afeas.
Authonty - This regulation is issued under
authority of Sections 404(b) and 501(a) of the
Clean Water Act of 1977, 33 U.S.C. * 1344(b)
and 136 1(a).
Subpart A—General
§ 23.1 Purpose and policy.
(a) The purpose of these Guidelines is
to restore and maintain the chemical.
physical, and biological integrity of
waters of the United States through the
control of discharges of dredged or fill
material.
(b) Congress has expressed a number
of policies in the Clean Water Act,
These Guidelines are intended to be
consistent with and to implement those
policies.
(c) Fundamental to these Guidelines is
the precept that dredged or fill material
should not be discharged into the
aquatic ecosystem, unless it can be
demonstrated that such a discharge will
not have an unacceptable adverse
impact either individually r in
combination with known a ’d1or
probable impacts of other activities
affecting the ecosystems of concern.
(d) From a national perspective, the
degradation or destruction’of special
aquatic sites, such as filling operations
in wetlands, is considered to be among
the most severe environmental impacts
covered by these Guidelines. The
guiding principle should be that
degradation or destruction of special
sites may represeht an Irreversible loss
of valuable aquatic resources.
230 2 Appflcablllty.
(a) These Guidelines have been
developed by the Administrator of the
Environmental Protection Agency in
conlunction with the Secretary of the
Army acting through the Chief of
Engineers under section 404(b)(1) of the
Clean Water Act (33 U S C. 1344). The
Guidelines are applicable to the
specification of disposal sites for
discharges of dredged or fill material
into waters of the United States. Sites
may be specified through’
(1) The regulatory program of the U S.
Army Corps of Engineers under sections
4.04(a) and (e) of the Act (see 33 CFR
320. 323 and 325);
(2) The civil works program of the U.S.
Army Corps of Engineers (see 33 CFR
209.145 and section 150 of Pub. L 94—587,
Water Resources Development Act of
1976);
(3) Permit programs of States
approved by the Administrator of the
Environmental Protection Agency in
accordance with sections 404(g) and (h)
of the Act (see 40 CFR 122, 123 and 124);
(4) Statewide dredged or fill material
regulatory programs with best
management practices approved under
section 208(b)(4)(B) and (C) of the Act
(see 40 CFR 35.1560);
(5) Federal construction projects
which meet criteria specified in section
404(r) of the Act.
(b) These Guidelines will be applied
in the review of proposed discharges of
dredged or flU material into navigable
waters which lie inside the baseline
from which the territorial sea is
measured, and the discharge of fill
material into the territorial sea, pursuant
to the procedures referred to in
paragraphs (a)(1) and (a)(2) above. The
discharge of dredged material into the
territorial sea is governed by the Marine
Protection. Research. and Sanctuaries
Act of 1972. Pub. L 92—532. and
regulations and criteria issued pursuant
thereto (40 CFR Part 220—228).
(c) Guidance on interpreting and
implementing these Guidelines may be
prepared jointly by EPA and the Corps
at the national or regional level from
time to time. No modifications to the
basic application, meaning, or intent of
these Guidelines will be made without
rulemaking by the Administrator under
the Administrative Procedure Act (5
U.S.C. 551 et seq.).
§ 230.3 DefinItions.
For purposes of this Part, the
following terms shall have the meanings
indicated: - -
(a) The term “Act” means the Clean
Water Act (also known as the Federal
Water Pollution Control Act or FWPCA)
Pub L 92—SOC. as amended by Pub L.
95—217, 33 U S C 12.51. et seq
(b) The term “adjacent”means
bordering. contiguous. or neighboring
Wetlaids separated from other waters
of the United States by man-made dikes
or barriers, natural ‘river berms. beach
dunes, and the like are “adjacent
wetlands
(c) The terms “aquatic environment”
and “aquatic ecosystem” mean waters
of the United States, including wetlands
that serve as habitat for interrelated and
interacting communities and populations
of plants and animals.
(d) The term “camer of contaminant”
means dredged or fill material that
contains contaminants.
(e) The term “contaminant” means a
chemical or biological substance In a
form that can be incorporated into, onto
or be ingested by and that harms
aquatic organisms. consumers of aquatic
organisms. or users of the aquatic
environment, and Indudes but is not
limited to the substances on the
307(a)(1) list of toxic pollutants
promulgated on January 31. 1978 (43 FR
4109),
(f) (Reserved)
(g) [ Reserved)
(h) The term “discharge point” means
the point within the disposal site at -
which the dredged or fill material is -
released.
(i) The term “disposal site” moans -
that portion of the “waters of the United
States” where specific disposal.’ :.
activities are permitted and consist of a
bottom surface area and any overlying
volume of water. In the case of wetlands
on which surface water is not present.
the disposal sité’corisists of the wetland
surface area.
(j) [ Reserved)
(k) The term “extraction sIte” means
the place from which the dredged or fill
material proposed for discharge is to be,
removed.
(1) [ Reserved)
(m) The term “mixing zone” means a
limited volume of water serving as a
zone of initial dilution in the immediate
vicinity of a discharge point where
receiving water quality may not meet
quality standards or other requirements
otherwise applicable to the receiving
water. The mixing zone should be
considered as a place where wastes and
water mix and not as a place where
effluents are treated.
(n) The term “permitting authority”
means the District Engineer oithe U.S.
Army Corps of Engineers or such other,
individual as may be-designated by the
- Secretary of the’ Army tois’sue or ded ,
peçmits under section 404 of the gt; or,
the State Director of a peiinit program.
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Z49 ’ P *Deâei,1be 24; 198a .fBules and- I egulatiohW
apprdvedbyEPKtmder 404(gYand . :.;
- O4(h) or his delegated representative.
) The tarm-pollutaot” means
dged spoil, solid waste. uicfnesatoi’
i-ësldue . sewage. garbage. sewage -
sludge, munitions, chemical wastes,
biological materials, radioactive
materials not covered by the Atomic
Energy Act, heat, wrecked or discarded
equipment. rock, sand. cellar dirt, and
ndustrial. municipal. and agricultural
waste discharged into water The
legislative history of the Act reflects that
“radioactive materials” as included
within the definition of “pollutant’ In
section 502 of the Act means only
radioactive materials which are not
encompassed in the definition of so irce,
byproduct, or special nuclear materials
as defined by the Atomic Energy Act of
1954. as amended, and regulated under
the Atomic Energy Act. Examples of
radioactive materials not covered by the
Atomic Energy Act and, therefore.
included within the term pollutant”, are
radium and accelerator produced
isotopes. See Tmin v. Colorado Public
Interest Research Group Inc . 426 U.S. 1
(1976).
(p) The term “pollution” means the
manmade or man4nduced alteration of
the chemical, physical. biological or
radiological Integrity of an aquatic
ecosystem.
(q) The term “practicable” means
liable and capable of being done
:r taking into considera Lion cost.
.lstlng technology, and logistics In light
of overall project purposes
(q.1) “Special aquatic ait. s means
those sites Identified in Subpart E. They
are geographic areas. Is rite or small.
possessing special ecolo iiical
characteristics of producti’ity. habitat.
wildlife protection, or o’t r important
and easily disrupted eu ,Ioivcal values.
These areas are genera IIi I i’rognized as
significantly Influencing i’r positively
contributing to the geni”-. ‘vera)!
environmental health .i iry of the
entire ecosystem of a r’.. n ISee
230.10(a) (3))
(r) The term “territor’ - ‘ means
the belt of the sea meoc ‘from the
baseline as determined . tordance
with the Conventon on .‘mtoriaI
Sea and the Contiguou ’ - and
extending seaward a d- of three
miles.
(s) The term “water’ united
States” means’
(1) All waters which .. • 1 rrentiy
used, or were used in th.’ . . .i or may
be susceptible to use in .-‘state or
foreign commerce. inrluii “ii all waters
which are subject to the . bh and flow of
the tide:
(2) All interstate waters including
terstate wetlands:
(3) All other waters such a,’intiastate-
lakes, riven,, streams (Including
intermittent streams), mudflats.
sandflats. wetlands. sloughs. prairie
potholes, wet meadows playa lakes, or
natural ponds. the use, degradation or
destruction of which could affect
interstate or foreign commerce including
any such waters.
(I) Which are or could be used by
Interstate or foreign travelers for
recreational or other purposes; or
(ii) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce; or
(iii) Which are used or could be used
for industrial purposes by industries in
interstate commerce;
(4) All impoundments of waters
otherwise defined as waters of the
United States under this definition.
(5) Tributaries of waters identified in
paragraphs (1)—(4) of this section.’
46) The territorial sea;
(7) Wetlands adjacent to waters
(other than waters that are themselves
wetlands) identified In paragraphs (s)
(1)—(6) of this section waste treatment
systems. Including treatment ponds or
lagoons designed to meet the
requirements of CWA (other than
cooling ponds as defined In 40 CFR
423.11(m) which also meet the criteria
of this definition) are not waters of the
United States.
(t) The term “wetlands” means those
areas that are inundated or saturated by
surface or ground water at a frequency
and duration sufficient to support. and
that under normal circumstances do
support. a prevalence of vegetation
typically adapted for life in saturated
soil conditions. Wetlands generally
include swamps, marshes, bogs and
similar areas.
f 230.4 Organtratlon.
The Guidelines are divided into eight
subparts. Subpart A presents those
provisions of general applicability, such
as purpose and definitions. Subpart B
establishes the four conditions which
must be satisfied in order to make a
finding that a proposed discharge of
dredged or fill material complies with
the Guidelines. Section 230 11 of Subpart
B, sets forth factual determinations
which are to be considered in
determining whether or not a proposed
discharge satisfies the Subpart B
conditions of compliance Subpart C
describes the physical and chemical
components of a site and provides
guidance as to how proposed d scharges
of dredged or fill material may affect
these components Subparts D—F detail
the special characteristics of particular
aquatic ecosystems in terms of their
values, and the possible loss of these
values due to dlachargesof dredged or
fill material. Subpart C prescribes a
number of physical, chemical, and
biological evaluations and testing
procedures to be used in reaching the
required factual determinations. Subpart
H details the means to prevent or
mimimize adverse effects. Subpart I
concerns advanced identification of
disposal areas.
§ 230.5 General procedures to be
followed.
In evaluating whether a particular
discharge sttg may be specified. the
permitting authority should use these
Guidelines in the following sequence:
(a) In order to obtain an overview of
the principal regulatory provisions of the
Guidelines, review the restrictions on
discharge in 230.10(aHd). the
measures to minimize adverse impact of
Subpart H, and the required factual
determinations of § 230.11.
(b) Determine if a General permit
( 230.7)18 applicable; if so. the
applicant needs merely to comply with
its terms, and no further action by the
permitting authority is necessary.
Special conditions for evaluation of
proposed General permits are contained
in § 230.7. If the discharge is not covered
by a General permit:
(c) Examine practicable alternatives
to th&proposed discharge, that Is. not
discharging into the waters of the U.S. or
dischargmg into an alternative aquatic
site with potentially less damaging
consequences ( 230.10(a)).
(d) Delineate the candidate disposal
site consistent with the criteria and
evaluations of § 230.11(f).
(e) Evaluate the various physical and
chemical components which
characterize the non.hving environment
of the candidate site, the substrate and
the water including its dynamic
characteristics (Subpart C).
(1) Identify and evaluate any special
or critical charactenstics of the
candidate disposal site, and surrounding
areas which might be affected by use of
such site, related to their living
communities or human uses (Subparts D.
E, and F).
(g) Review Factual Determinations in
§ 230 11 to determine whether the
information in the project file is
sufficient to provide the documentation
required by § 23011 or to perform the
pre-testing evaluation described in
§ 230 60, or other information is
necessary.
(h) Evaluate the material to be
discharged to determine the possibility
of chemical contamination or physical
incompatibility of the material to be
discharged (f 23060).
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Federal Register / Vol 45, No. 249 / Wednesday. December 24, 1980 / Rules and Regulations 85347
(i) if there is a reasonable probability
of chemical contamination, conduct the
appropriate tests according to the
section on Evaluation and Testing
(f 230 61)
(j) Identify appropriate and
practicable changes to the project plan
to minimize the environmental impact of
the discharge, based upon the
specialized methods of minimization of
impacts in Subpart H.
(k) Make and document Factual
Determinations in § 230.11.
(I) Make and document Findings of
CompliarTce (f 230 12) by comparing
Factual Determinations with the
requirements for discharge of § 230.10.
This outline of the steps to follow in
using the Guidelines is simplified for
purposes of illustration. The actual
process followed may be Iterative, with
the results of one step leading to a
reexamination of previous steps. The
permitting authority must address all of
the relevant provisions of the Guidelines
In reaching a Finding of Compliance In
an individual case.
* 230.6 AdaptabIlity.
(a) The manner in which these
Guidelines are used depends on the
physical, biological, and chemical nature
of the proposed extraction site, the
material to be discharged, and the
candidate disposal site. Including any
other Important components of the
ecosysfem being evaluated.
Documentation to demonstrate
knowledge about the extraction site,
materials to be extracted, and the
candidate disposal site is an essential
component of guideline application.
These Guidelines allow evaluation and
documentation for a variety of activities,
ranging from those with large, complex
Impacts on the aquatic environment to
those for which the impact is likely to be
Innocuous. Itis unlikely that the
Guidelines will apply in their entirety to
any one activity, no matter how
complex. It Is anticipated that
substantial numbers of permit
applications will be for minor, routine
activities that have httle. if any,
potential for 8lgnificant degradation of
the aquatic environment, It gen ally is
not intended or expected that e, tansive
testing, evaluation or analysis will be
needed to make findings of compliance
in such routine cases. Where the
conditions for General permits are met,
and where numerous applications for
similar activities are likely, the use of
General permits will eliminate repetitive
evaluation and documentation for
Individual discharges.
(b) The Guidelines user, including the
agency or agencies responsible for
implementing the Guidelines, must
recognize the different levels of effort
that should be associated with varying
degrees of impact and require or prepare
commensurate documentation. The level
of documentation should reflect the
significance and complexity of the
discharge activity.
(c) An essential part of the evaluation
process involves making determinations
as to the relevance of any portion(s) of
the Guidelines and conducting further
evaluation only as needed However,
I where portions of the Guidelines review
procedure are “short form” evaluations.
there still must be sufficient information
(including consideration of both
individual and cumulative impacts) to
support the decision of whether to
specify the site for disposal of dredged
or fill material and to support the
decision to curtail or abbreviate the
evaluation process. The presumption
against the discharge In * 230.1 applies
to this decision..maldng.
(d) In the case of activities covered by
General permits or 208(b)(4)(B) and (C)
Best Management Practices, the analysis
and documentation required by the
Guidelines will be performed at the time
of General permit issuance or
208(b)(4)(B) and (C) Best Management
Practices promulgation and will not be
repeated when activities are conducted
under a General permit or 208(b)(4)(B)
and (C) Best Management Practices
controL These Guidelines do not require
reporting or formal written
communication at the time Individual’
activities are initiated under a General
permit or 208(b)(4)(B) and (C) Best
Management Practices. However, a
particular General permit may require
appropriate reporting.
§ 230.7 General permits .
(a) Conditions for the issuance of
General perm its. A General permit for a
category of activities involving the
discharge of dredged or fill material
complies with the Guidelines if it meets
the applicable restrictions on the
discharge in * 230.10 and If the
permitting authority determines thati
(1) The activities In such category are
similar In nature and similar in their
impact upon water quality and the
aquatic environment;
(2) The activities in such category will
have only minimal adverse effects when
performed separately and
(3) The activities In such category will
have only minimal cumulative adverse
effects on water quality and the aquatic
environment.
(b) Evaluation process. To reach the
determinations required in paragraph (a)
of this section. the permitting authority
shall set forth in writing an evaluation of
the potential individual and cumulative
impacts of the category of activities to
be regulated under the General permit.
While some of the information
necessary for this evaluation can be
obtained from potential permittees and
others through the proposal of General
permits for public review, the evaluation
must be completed before any General
permit is issued, and the results must be
published with the final permit.
(1) This evaluation shall be based
upon consideration of the prohibitions
listed in § 230.10(b) and the factors
listed in § 230.10(c), and shall include
documented information supporting
each factual determination In * 230.11 of
the Guidelines (consideration of
alternatives In § 230.10(a) are not
directly applicable to General permits);
(2) The evaluation shall Include a
precise description of the activities to be
permitted under the General permit.
explaining why they are sufficiently
similar in nature and In environmental
impact to warrant regulation under a -
single General permit based on Subparts’
C-F of the Guidelines, Allowable
differences between activitie, which -
will be regulated under the same
General permit shall be specified.
Activities otherwise similar In nature
may differ In environmental impact due’ .
to their location in or near ecologically
sensitive areas, areas with unique ,.
chemical or physical characterIstics,
areas containing concentrations of toxic
substances, or areas regulated for
specific human uses or by epecfflciand
or water management plans (e.g., areu
regulated under an approved Coastal
Zone Management Plan). If there are
specific geographic areas within the
.purview of a proposed General permit
(called a draft General permit under a
State 404 program), which are more
appropriately regulated by individual
permit due to the considerations cIted In
this paragraph, they shall be clearly
delineated In the evaluation and
excluded from the permit. In addition.
the permitting authority may require an
Individual permit for any proposed
activity under a General permit where
the nature or location of the activity
makes an individual permit more
appropriate.
(3) To predict cumulative effects, the
evaluation shall include the number.
individual discharge activities likely to’
be regulated under a General permit
until its expiration. Including repetitIous
of Individual discharge activities at a
single location. -
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853484 FedemI egister I Vol. 45.No . -249 I Wednesday.. Dece ber 1 24. 1980-1 Rules, and. RegiilaUons-
Subpart B—CompUance With the
Gu ide lines
230.10 Restrictions on discharge.
Note.—Because other laws niayipply to
particular discharges and because the Corp.
of Engineers or State 401 agency may have
additional procedural and substantive
equirements, a discharge complying with the
requirement of these Gwdehnes will not
automatically receive a permit
Although all requirements in 230.10
must be met, the compliance evaluation
procedure8 will vary to reflect the
seriousness of the potential for adverse
Impacts on the aquatic ecosystems.
posed by specific dredged or fill
material discharge activities.
(a) Except as provided under
§ 404(b)(2). no discharge of dredged or
1111 material shall be permitted if there is
a practicable alternative to the proposed
discharge which would have less
adverse impact on the aquatic
ecosystem, so long as the alternative
does not have other significant adverse
environmental consequences.
(1) For the purpose of this
requirement. practicable alternatives
include, but are not limited to
(I) Activities which do not involve a
discharge of dredged or fill material into
the waters of the United States or ocean
waters; -
(ii) Discharge, of dredged or fill
iaterial at other locations in waters of
te United States or ocean waters;
(2) An alternative is practicable if ills
available and capable of being done
after taking into consideration cost.
existing technology, and logistics In light
of overall project purposes. If It ii
otherwise a practicable alternative, an
area not presently owned by the
applicant which could reasonably be
obtained, utilized, expanded or managed
in order to fulfill the basic purpose of
the proposed activity may be
considered.
(3) Where the activity associated with
a discharge which is proposed for a
special aquatic site (as defined in
Subpart B) does not require access or
proximity to or siting within the special
aquatic site in question to fulfill its basic
purpose (I.e.. is not ‘water dependent”).
practicable alternatives that do not
involve special aquatic sites are
presumed to be available, unless clearly
demonstrated otherwise. In addition.
where a discharge is proposed for a
special aquatic site, all practicable
alternatives to the proposed discharge
which do not involve a discharge into a
special aquatic site are presumed to
have less adverse impact on the aquatic
ecosystem, unless clearly demostrated
itherwise.
(4) For actions subject to NFPA.
where the Corps of P.r gineers is the
permitting agency. the analysis of
alternatives required for NEPA
environmental documents. including
supplemental Corps NEPA documents,
will in most cases provide the
information for the evaluation of
alternatives under these Guidelines. On
occasion, these NEPA documents may
address a broader range of alternatives
than required to be considered under
this paragraph or may not have
considered the alternatives in sufficient
detail to respond to the requirements of’
these GuideLines. In the latter case, It
may be necessary to supplement these
NEPA documents with this additional
information.
(5) To the extent that practicable
alternatives have been Identified and
evaluated under a Coastal Zone
Management program. a § 208 program.
or other planning process. such
evaluation shall be considered by the
permitting authority as part qf the
consideration of alternatives under the
Guidelines. Where such evaluation is
less complete than that contemplated
under this subsection, it must be
supplemented accordingly.
(b) No discharge of dredged or fill
material shall be permitted if It
(1) Causes or contributes, after
consideration of disposal site dilution
and dispersion . to violations of any
applicable State water quality standard.
(2) Violates any applicable toxic
effluent standard or prohibition under
section 307 of the Act
(3) eopardlzes the continued
existence of species listed as
endangered or threatened under the
Endangered Species Act of 1973. as
amended, or results in likelihood of the
destruction or adverse modification of a
habitat which is determined by the
Secretary of Interior or Commerce. as
appropriate, to be a critical habitat
under the Endangered Species Act of
1973, as amended. If an exemption has
been granted by the Endangered Species
Committee, the terms of such exemption
shall apply in lieu of this subparagraph;
(4) Violates any requirement imposed
by the Secretary of Commerce to protect
any marine sanctuary designated under
Title Ill of the Marine Protection,
Research, and Sanctuaries Act of 1972.
(c) Except as provided under
§ 404(b)(2). no discharge of dredged or
Ill! material shall be permitted which
will cause or contribute to significant
degradation of the waters of the United
States Findings of significant
degradation related to the proposed
discharge shall be based upon
appropriate factual determinations.
evaluations, and tests required by
Subparts B and G. after consideration of
Subparts C—F. with special emphasis on
the persistence and permanence of the
effects outlined in those subparts. Under
these Guidelines, effects contributing to
significant degradation considered
individually or collectively. include:
(1) Significantly adverse effect of the
discharge of pollutants on human health
or welfare, including but not limited to
effects on municipal water supplies,
plankton, flab, shellfish, wildlife, and
special aquatic sites.
(2) Significantly adverse effects of the
discharge.of pollutants on life stages of
aquatic hf nd other wildlife dependent
on aquatic e’cosystems. including the
transfer, concentration, and spread of
pollutants or their byproducts outside of
the disposal site through biological,
physical, and chemical processes;
(3) Significantly adverse effects of the
discharge of pollutants on aquatic
ecosystem diversity, productivity, and
stability. Such effects may include, but
are not limited to, loss of fish and
wildlife habitat or loss of the capacity of
a wetland to assimilate nutrients, purify
water, or reduce wave energy’, or
(4) Significantly adverse effects of
discharge of pollutants on recreational,
aesthetic, and economic values.
(d) Except as provided under
* 404(b)(2), no discharge of dredged or
fill material shall be permitted unless
appropriate and practicable steps have
been taken which will mInimi2
potential adverse impacts of the
discharge on the aquatic ecosystem.
Subpart H identifies such possible steps.
§ 230.11 Factual detenninatlons.
The permitting authority shall
determine in writing the potential short’
term or long-term effects of a proposed
discharge of dredged or fill material on
the physical, chemical, and biological
components of the aquatic environment
in light of Subparts C—F. Such factual
determinations shall be used in § 230.12
in making findings of compliance or non-
compliance with the restrictions on
discharge in § 230 10. The evaluation
and testing procedures described in
§ 230 60 and § 23061 of Subpart G shall
be used as necessary to make, and shall
be described in. such determination. The
determinations of effects of each
proposed discharge shall include the
following
(a) Physical substrate determinations.
Determine the nature and degree of
effect that the proposed discharge will
have, individually and cumulatively, on
the characteristics of the substrate at
the proposed disposal site.
Consideration shall be given to the
similarity in particle size, shape, and
degree of compaction of the material
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Federal Register / Vol 45. No 249 I Wednesday, December 24, 980 I Rules and Regulations 85349
proposed for d!scharge and the material
constituting the substrate at the disposal
site, and any potential changes in
substrate elevation and bottom
contours, including changes outside of
the disposal site which may occur as a
result of erosion. sluinpage. or other
movement of the discharged material
The duration and physical extent of
substrate changes shall also be
considered. The possible loss of
environmental values (I 230.20) and
actions to minimize impact (Subpart H)
shall also be considered in making these
determinations Potential changes in
substrate elevation and bottom contours
shall be predicted on the basis of the
proposed method, volume. Location, and
rate of discharge. as well as on the
individual and combined effects of
current patterns, water circulation, wind
and wave action, and other physical
factors that may affect the movement of
the discharged material.
(b) Water circulation, fluctuation, and
salinity determinations Determine the
nature and degree of effect that the
proposed discharge will have
individually and cumulatively on water,
current patterns, circulation Including
downstream flows, and normal water
fluctuation. Consideration shall be given
to water chemistry, salinity, clarity,
color, odor, taste, dissolved gas levels,
temperature, nutrients, and
eutrophication plus other appropriate
characteristics. Consideration shall also
be given to the potential diversion or
obstruction of flow, alterations of
bottom contours, or other significant
changes in the hydrologic regime.
Additional consideration of the possible
lose of environmental values (1230.23-
.25) and actions to minimize impacts
(Subpart H), shall be used in making
these determinations. Potential
significant effects on the current
patterns, water circulation, normal
water fluctuation and salinity shall be
evaluated on the basis of the proposed
method, volume, location, and rate of
discharge.
(c) Suspended particulatelturbi dity
determinations. Determine the nature
and degree of effect that the prc osed
discharge will have. individuallfand
cumulatively, in terms of potential
changes in the kinds and concentrations
of suspended particulate/turbidity in the
vicinity of the disposal site.
Consideration shall be given to the grain
size of the material proposed for
discharge, the shape and size of the
plume of suspended partaculates, the
duration of the discharge and resulting
plume and whether or not the potential
changes will cause violations of
applicable water quality standards.
Consideration shou.ld also’be given to
the possible loss of environmental
values ( 23021) and to actions for
minimizing impacts (Subpart H)
Consideration shall include the
proposed method, volume, location, and
rate of discharge. as well as the
individual and combined effects of
current patterns, water circulation and
fluctuations, wind and wave action, and
other physical factors on the movement
of suspended particulates
(d) Contaminant determinations
Determine the degree to which the
material proposed for discharge will
introduce, relocate, or increase
contaminants This determination shall
consider the material to be discharged,
the aquatic environment at the proposed
disposal site, and the availability of
contaminants.
(e) Aquatic ecosystem and organism
determinations. Determine the nature
and degree of effect that the proposed
discharge will have, both Individually
and cumulatively, on the structure and
function of the aquati ,ecosystem and
organisms. Consideration shall be given
to the effect at the proposed disposal
site of potential changes in substrate
characteristics and elevation, water or
substrate chemistry. nutrients, currents,
circulation, fluctuation, and salinity, on
the recolonization and existence of
Indigenous aquatic organisms or
communities. Possible lose of
environmental values (1230.31). and
actions to minimize impacts (Subpart H)
shall be examined. Tests as desoribed in
230.61 (EvaluatIon and Testing), may
be required to provide Information on
the effect of the discharge material on
communities or populations of
organisms expected to be exposed to it.
(I ’) Proposed disposal site
determinations. (1) Each disposal site
shall be specified through the
application of these Guidelines. The
mixing zone shall be confined to the
smallest practicable zone within each
specified disposal site that is consistent
with the type of dispersion determined
to be appropriate by the application of
these Guidelines. In a few special cases
under unique environmental conditions,
where there is adequate iustification to
show that widespread dispersion by
natural means will result in no
significantly adverse environmental
effects, the discharged material may be
intended to be spread naturally in a very
thin layer over a large area of the
substrate rather than be contained
within the disposal site.
(2) The permitting authority and the
Regional Administrator shall consider
the following factors an deterimiung the
acceptability of a proposed mixing zone:
(i) Depth of water at the disposal site;
(ii) Current velocity, direction and
ariabilitv at the disposal site.
(iii) Di gree of turbulence.
(it) Stratification attributable to
causes such as obstructions. salinity or
density profiles at the disposal site.
(v) Discharge vessel speed and
direction, if appropriate.
(vi) Rate of discharge.
(vii) Ambient concentration of
constituents of interest.
(viii) Dredged material characteristics,
particularly concentrations of
constituents, amount of material, type of
material (sand, silt, clay. etc) and
settling velocities;
(ix) Number of discharge actions per
unit of time.
(x) Other factors of the disposal site
that affect the rates and patterns of
mixing
(g) Deternunation of cumulative
effects on the aquatic ecosystem. (1)
Cumulative impacts aie the changes in
an aquatic ecosystem that are
attributable to the collective effect of a
number of individual discharges of
dredged or fill material. Although the
impact of a particular discharge may
constitute a minor change Init.elL the
cumulative effect of numerous suth
piecemeal changes can result Ins major
impairment of the water resources end
interfere with the productivity and
water quality of existing aquatic
ecosystems.
(2) Cumulative effects attributable to
the discharge of dredged orfihimaterlal
in waters of the United States should be
predicted to the extent reasonable and
practicaL The permitting authority shall
collect Information and solicit
information from other sources about
the cumulative impacts on the aquatic
ecosystem. This information shall be
documented end considered during the
decision-snaking process concerning the
evaluation of individual permit
applications, the issuance of a General
permit. and monitoring and enforcement
of existing permits.
(h) Determination of secondary
effects on the aquatic e ystem. (1)
Secondary effects are effects on an
aquatic ecosystem that are associated
with a discharge of dredged or fill
materials, but do not result from the
actual placement of the dredged or fill
material. Information about secondary
effects on aquatic ecosystems shall be
considered prior to the time final section
404 action is taken by permitting
authorities. -
(2) Some examples of secondary
effects on an aquatic ecosystem are
fluctuating water levels in an
impoundment and downstream
associated with the operation of a darn,
septic tank leaching and surface runoff -
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85350 Federal Register / Vol. 45, No.249 / Wednesday, December 24, 1980 I Rules and Regulations
from residential or commercial
developments on fill, and leachate and
runoff from a sanitary landfill located in
waters of the U.S. Activities to be
conducted on fast land created by the
discharge of dredged or fill material in
waters of the United States may have
secondary impacts within those waters
which should be considered in
evaluating the impact of creating those
fast lands.
* 230.12 FIndings of con’ipflanee or non.
compliance with the resbictions on
discharge.
(a) On the basis of these Guidelines
(Subparts C through C) the proposed
disposal sites for the discharge of
dredged or fill material must be:
(1) Specified as complying with the
requirements of these Guidelines; or
(2) Specified as complying with the
requirements of these Guidelines with
the inclusion of appropriate and
practicable discharge conditions (see
Subpart H) to minimize pollution or
adverse effects to the affected aquatic
ecosystems; or
(3) Specified as failing to comply with
the requirements of these Guidelines
where:
(1) There is a practicable alternative to
the proposed discharge that would have
less Bdverse effect on the aquatic
ecos ’stem. so long as such alternative
doee not have other significant adverse
environmental consequences; or
(II) The proposed discharge will result
in significant degradation of the aquatic
ecosystem under * 230.10(b) or (c); or
(lii) The proposed discharge does not
include all appropriate and practicable
measures to minimize potential harm to
the aquatic ecosystem: or
(iv) There does not exist sufficient
information to make a reasonable
judgment as to whether the proposed
discharge will comply with these
Guidelines.
(b) Findings under this section shall
be set forth in writing by the permitting
authority for each proposed discharge
and made available to the permit
applicant. These findings shall include
the factual determinations required by
§ 230.11. and a brief explanation of any
adaptation of these Guidelines to the
activity under consideration. in the case
of a General permit. such findings shall
be prepared at the time of issuance of
that permit rather than for each
subsequent discharge under the
authority of that permit.
Subpart C—Potential Impacts on
Physical and Chemical Characteristics
of the Aquatic Ecosystem
Note.—The effects described in this
subpart should be considered in making the
factual determinations and the findings of
compliance or non-compliance in Subpart B.
§ 230.20 Substrate.
(a) The substrate of the aquatic
ecosystem underlies open waters of the
United States and constitutes the
surface of wetlands. It consists of
organic and inorganic solid materials
and includes water and other liquids or
gases that fill the spaces between solid
particles.
(b) Possible loss of environmental
characteristics and values: The
discharge of dredged or fill material can
result in varying degrees of change in
the complex physical, chemical, and
biological characteristics of the
substrate. Discharges which alter
substrate elevation or contours can
result in changes in water circulation.
depth, current pattern, water fluctuation
and water temperature. Discharges may
adversely affect bottom-dwelling
organisms at the site by smothering
immobile forms or forcing mobile forms
to migrate. Benth forms present prior
to a discharge are unlikely to recolonize
on the discharged material if it Is very
dissimilar from that of the discharge
site. Erosion. slumping, or lateral
displacement of surrounding bottom of
such deposits can adversely affect areas
of the substrate outside the perimeters
of the disposal site by changing or
destroying habitat. The bulk and
composition of the discharged material
and the location, method, and timing of
discharges may all influence the degree
of impact on the substrate.
§ 230.21 Suspended particutates/tuibidlty.
(a) Suspended particulates in the
aquatic ecosystem consist of fine-
grained mineral particles, usually
smaller than silt, and organic particles.
Suspended particulates may enter water
bodies as a result of land runoff,
flooding. vegetative and planktonic
breakdown, resuspension of bottom
sediments, and man’s activities
including dredging and filling.
Particulates may remain suspended in
the water column for variable periods of
time as a result of such factors as
agitation of the water mass, particulate
specific gravity, particle shape. and
physical and chemical properties of
particle surfaces.
(b) Possible loss of environmental
characteristics and values: The
discharge of dredged or fill material can
result in greatly elevated levels of
suspended particulates in the water
column for varying lengths of time.
These new levels may reduce light
penetration and lower the rate of
photosynthesis and the primary
productivity of an aquatic area if they
last long enough. Sight-dependent
species may suffer reduced feeding
ability leading to limited growth and
lowered resistance to disease if high
levels of suspended particulates persist.
The biological and the chemical content
of the suspended material may react
with the dissolved oxygen in the water,
which can result in oxygen depletion.
Toxic metal p and organics. pathogens,
and viruses absorbed or adsorbed to
fine-grained particulates in the material
may become biologically available to
organismsçither in the water column or
on the sul frate. Significant increases in
suspended particulate levels create
turbid plumes which are highly visible
and aesthetically displeasing The
extent and persistence of these adverse
impacts caused by discharges depend
upon the relative increase in suspended
particulates above the amount occurring
naturally, the duration of the higher
levels, the current patterns, water level,
and fluctuations present when such
discharges occur, the volume, rate, and
duration of the discharge. particulate
deposition, and the seasonal timing of
the discharge.
§ 230.22 Water.
(a) Water is the part of the aquatic
ecosystem in which organic and
inorganic constituents are dissolved and
suspended. It constitutes part of the
liquid phase and is contained by the
substrate. Water forms part of a
dynamic aquatic life-supporting system.
Water clarity, nutrients and chemical
content, physical and biological content.
dissolved gas levels, pH. and
temperature contribute to its life.
sustaining capabilities.
(b) Possible loss of environmental
characteristics and values: The
discharge of dredged or fill material can
change the chemistry and the physical
characteristics of the receiving water at
a disposal site through the introduction
of chemical constituents in suspended or
dissolved form Changes in the clarity.
color, odor, and taste of water and the
addition of contaminants can reduce or
eliminate the suitability of water bodies
for populations of aquatic organisms.
and for human consumption. recreation,
and aesthetics The introduction of
nutrients or organic material to the
water column as a result of the
discharge can lead to a high biochemical
oxygen demand (BOD). which in turn
can lead to reduced dissolved oxygen.
thereby potentially affecting the survival
of many aquatic organisms. Increases in
nutrients can favor one group of
organisms such as algae to the detriment
of other more desirable types such as
submerged aquatic vegetation.
potentially causing adverse health
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Federal Resister / Vol 45. No 249 / Wednesday. Decei’ther 24 1980 I Rules arid Regulations 85351
effects, objectionable tastes and odors.
and other problems
§ 230.23 Current patlems and water
circulation.
(a) Con ent patterns and water
circulation are the physical mo ements
of water in the aqua tic ecosystem
Currents and circulation respond to
natural forces as modified by basin
shape and cover physical and chemical
characteristics of water strata and
masses, and energy dissipating factors
(b) Possible loss of environmental
characteristics and values The
discharge of dredged or fill material can
modify current patterns and water
circulation by obstructing flow, changing
the direction or velocity of water flow,
changing the direction or velocity of
water flow and circulation, or otherwise
changing the dimensions of a water
body As a result, adverse changes can
occur in. location, structure, and
dynamics of aquatic communities,
shoreline and substrate erosion and
depositon rates, the deposition of
suspended particulates. the rate and
extent of mixing of dissolved and
suspended components of the water
body; and water stratification.
§ 230.24 Normal water fluctuations.
(a) Normal water fluctuations in a
natural aquatic system consist of daily,
seasonal, and annual tidal and flood
fluctuations in water LeveL Biological
and physical components of such a
system are either attuned to or
characterized by these periodic water
fluctuations.
(b) Possible loss of environmental
characteristics and values: The
discharge of dredged or fill material can
alter the normal water-level fluctuation
pattern of an area, resulting in
prolonged periods of inundation.
exaggerated extremes of high and low
water, or a static, nonfluctuating water
leveL Such water level modifications
may change salinity patterns, alter
erosion or sedimentation rates,
aggravate water temperature e,xtremes,
and upset the nutrient and dis 1yed
oxygen balance of the aquatic
ecosystem. In addition, these
modifications can alter or destroy
communities and populations of aquatic
animals and vegetation, induce
populations of nuisance organisms,
modify habitat, reduce food supplies,
restrict movement of aquatic fauna,
destroy spawning areas, and change
adjacent, upstream, and downstream
areas.
§ 230 25 SalinIty gradients
(a) Salinity gradients form where salt
water from the ocean meets and mixes
with fresh waler from land
(b) Possible loss of environmental
characteristics and values Obstructions
which divert or restnct flow of either
fresh or salt water may change existing
salinity gradients For example. partial
blocking of the entrance to an estuary or
river mouth that significantly restricts
the movement of the salt water into and
out of that area can effectively lower the
volume of salt water available for
mixing within that estuary The
downstream migration of the salinity
gradient can occur, displacing the
maximum sedimentation zone and
requiring salinity-dependent aquatic
biota to adjust to the new conditions.
move to new locations If possible, or
perish. In the freshwater zone, discharge
operations in the upstream regions can
have equally adverse impacts. A
significant reduction In the volume of
fresh water moving into an estuary
below that which is considered normal
can affect the location and type of
mixing thereby changing the
characteristic salinity patterns The
resulting changed circulation pattern
can cause the upstream migration of the
salinity gradient displacing the snaximim
sedimentation zone. This migration may
affect those organisms that are adapted
to freshwater environments It may also
affect municipal water supplies.
Note.—Pous lble actions to minimize
adverse Impacts regarding site charactenstics
can be found In Subpart H.
Subpart D—Potentlai impacts on
Biological Characteristics of the
Aquatic Ecosystem
Note—The Impacts described in this
subpart should be considered in making the
factual detereunations and the findings of
compliance or non-compliance in Subpart B.
§ 230.30 Threatened end endangered
species. -
(a) Mi endangered species is a plant
or animal in danger of extinction
throughout all or a significant portion of
its range. A threatened species is one in
danger of becoming an endangered
species in the foreseeable future
throughout all or a significant portion of
its range. Listings of threatened and
endangered species as well as critical
habitats are maintained by some
individual States and by the U.S Fish
and Wildlife Service of the Department
of the Interior (codified annually at 50
CFR § 17.11). The Department of
Commerce has authority over some
threatened and endangered marine
mammals, fish and reptiles.
(b) Possible loss of values The major
potential Impacts on threatened or
endan c ed species from the discharge
of dredged or nil material include
(1) Covering or otherwise directly
killing species.
(2) The impairment or destruction of
habitat to which these species are
limited Elements of the aquatic habitat
which are particularly crucial to the
continued survival of some threatened
or endangered species include adequate
good quality water, spawning and
maturation areas, nesting areas.
protective cover, adequate and reliable
food supply, and resting areas for
migratory species Each of these
elements can be adversely affected by
changes in either the normal water
conditions for clarity, cheinicai content,
nutrient balance. dissolved oxygen. pH,
temperature, salinity, current patterns.
circulation and fluctuation, or the
physical removal of habitat; and
(3) Facilitating incompatible activities.
(c) Where consultation with the
Secretary of the Interior occurs under
Section 7 of the Endangered Species
Act, the conclusions of the Secretary
concerning the Impact(s) of the
discharge on threatened and endangered
species and their habitat shall be
considered final.
§ 230.31 Ash. austsc. is, moMt s and
other 9 ” tlc organisms ki the food wsh.
(a) Aquatic organisms in the food web
include, but sit not limited to, finfish,
crustaceans, mollusks, Insects. annelids,
planktonic orgeniams. and the plants
and animals on which they feed and
depend upon for their needs. All forms
and life stages of an organism,
throughout its geographic range, are
included In this category.
(b) Possible lou of values The
discharge of dredged or fill material can
variously affect populations of fish,
crustaceans, mollusks and other food
web organi m* through the release of
contaminAnts which adversely affect
adults, juveniles, larvae, or eggs, or
result in the establishment or
proliferation of an undesirable
competitive species of plant or animal at
the expense of the desired resident
species. Suspended particulate. settling
on attached or buried eggs can smother
the eggs by limiting or sealing off their
exposure to oxygenated water.
Discharge of dredged and fill material
may result in the debilitation or death of
sedentary organicms by smothering.
exposure to chemical contaminants in
dissolved or suspended form, exposure
to high levels of suspended particulates,
reduction In food supply, or alteration of
the substrate upon which they are
dependent. Mollusks are particularly
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85352 Federal Register / Vol. 45. No. 249 / Wednesday, December 24, 1980 / Rules and Regulations
sensitive to the discharge of material
during periods of reproduction and
growth and development due primarily
to their limited mobility. They can be
rendered unfit for human consumption
by tainting, by production and
accumulation of toxins, or by ingestion
and retention of pathogenic organisms,
viruses, heavy metals or persistent
synthetic organic chemicals. The
discharge of dredged or fill material can
redirect, delay, or stop the reproductive
and feeding movements of some species
of fish and crustacea, thus preventing
their aggregation In accustomed places
such as spawning or nursery grounds
and potentially leading to reduced
populations. Reduction of detrital
feeding species or other representatives
of lower trophic levels can impair the
flow of energy from primary consumers
to higher trophic levels. The reduction or
potential elimination of food chain
organism populations decreases the
overall productivity and nutrient export
capability of the ecosystem.
* 230.32 Other wfldllfe.
(a) Wildlife associated with aquatic
ecosystems are resident and transient
mammals, birds, rep tiles, and
amphibians.
(b) Possible loss of values: The
discharge of dredged or fill material can
result in the loss or change of breeding
nd nesting areas, escape cover, travel
orridors. and preferred food sources for
resident and transient wildlife species
associated with the aquatIc ecosysteM.
These adverse impacts upon wildlife
habitat may result from changes in
water levels, water flow and circulation,
salinity, chemical content, and substrate
characteristics and elevation. Increased
water turbidity can adversely affect
wildlife species which rely upon sight to
feed, and disrupt the respiration and
feeding of certain aquatic wildlife and
food chain organisms. The availability
of contaminants from the discharge of
dredged or fill material may lead to the
bioaccumulation of such contaminants
in wildlife. Changes in such physical
and chemical factors of the environment
may favor the introduction of
undesirable plant and animal species at
the expepse of residenrspecies and
communities In some aquatic
environments lowering plant and animal
species diversity may disrupt the normal
functions of the ecosystem and lead to
reductions in overall biological
productivity.
Note.—Possible actions to minimize
adverse impacts regarding charactenstics of
biological components of the aquatic
cosystem can be found in Subpart H.
Subpart E—Potential Impacts on
Special Aquatic Sites
Noto.—The impacts described in this
subpart should be considered in making the
factual determinations and the findings of
compliance or non-compliance in Subpart B.
The definition of special aquatic sites is
found m * 230.3(q—1).
§ 230.40 SanctuarIes and refuges,
(a) Sanctuaries and refuges consist of
areas designated under State and
Federal laws or local ordinances to be
managed principally for the preservation
and use of fish and wildlife resources.
(b) Possible loss of values:
Sanctuaries and refuges may be affected
by discharges of dredged or fill material
which with
(1) Disrupt the breeding. spawning.
migratory movements or other critical
life requirements of resident or transient
fish and wildlife resources;
(2) Create unplanned, easy and
incompatible human access to remote
aquatic areas;
(3) Create the need for frequent
maintenance activity
(4) Result in the establishment of
undesirable competitive species of
plants and animals;
(5) Change the balance of water and
land areas needed to provide cover,
food, and other fish and wildlife habitat
requirements in a way that modifies
sanctuary or refuge management
practices;
(6) Result in any of the other adverse
impacts discussed in Subparts C and D
as they relate to a particular sanctuary
or reruge.
* 23041 Wetlands,
(a)(1) Wetlands consist of areas that
are inundated or saturated by surface or
ground water at a frequency and
duration sufficient to support, and that
under normal circumstances do support.
a prevalence of vegetation typically
adapted for life in saturated soil
conditions.
(2) Where wetlands are adjacent to
open water, they generally constitute the
transition to upland. The margin
between wetland and open water can
best be established by specialists
familiar with the local environment.
particularly where emergent vegetation
merges with submerged vegetation over
a broad area in such places as the
lateral margins of open water,
headwaters, rainwater catch basins, arid
groundwater seeps. The landward
margin of wetlands also can best be
identified by specialists familiar with
the local environment when vegetation
from the two regions merges over a
broad area.
(3) Wetland vegetation consists of
plants that require saturated soils to
survive (obligate wetland plants) as well
as plants. including certain trees, that
gain a competitive advantage over
others because they can tolerate
prolonged wet soil conditions and their
competitors cannot. In addition to plant
populations and communities, wetlands
are delimited by hydrological and
physical characteristics of the
environment These characteristics
should be considered when information
about them is needed to supplement
informatioitjavailable about vegetation.
or where wdtland vegetation has been
removed or is dormant.
(b) Possible loss of values: The
discharge of dredged or fill matenal in
wetlands is likely to damage or destroy
habitat and adversely affect the
biological productivity of wetlands
ecosystems by smothering, by
dewatering. by permanently flooding, or
by altering substrate elevation or
periodicity of water movement. The
addition of dredged or fill material may
destroy wetland vegetation or result in
advancement of succession to dry land
species It may reduce or eliminate
nutrient exchange by a reduction of the
system’s productivity, or by altering
current patterns and velocities.
Disruption or elimination of the wetland
system can degrade water quality by
obstructing circulation patterns that
flush large expanses of wetland
systems, by interfering with the
filtration function of wetlands, or by
changing the aquifer recharge capability
of a wetland. Discharges can also
change the wetland habitat value for
fish and wildlife as discussed in Subpart
D. When disruptions in flow and
circulation patterns occur, apparently
minor loss of wetland acreage may
result in major losses through secondary
impacts. Discharging fill material in
wetlands as part of municipal, industrial
or recreational development may modify
the capacity of wetlands to retain and
store floodwaters and to serve as a
buffer zone shielding upland areas from
wave actions, storm damage and
erosion.
§ 230.42 Mud flats
(a) Mud flats are broad flat areas
along the sea coast and in coastal nvers
to the head of tidal influence and in
inland lakes, ponds. and riverine
systems When mud flats are inundated.
wind and wave action may resuspend
bottom sediments Coastal mud flats are
exposed at extremely low tides and
inundated at high tides with the water
table at or near the surface of the
substrate The substrate of niud flats
contains organic material and particles
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Federal Register / Vol. 45, No 249 I Wednesday, December 24,
1980 I Rules and Regulations 85353
smaller in size than sand They are
either unvegetated or vegetated only by
algal mats
(b) Possible loss of values The
discharge of dredged oi fill material can
cause changes in water circulation
patterns which may permanently flood
or dewater the mud flat or disrupt
periodic inundation, resulting in art
increase in the rate of erosion or
accretion. Such changes can deplete or
eliminate mud flat biota, foraging areas,
and nursery areas Changes in
inundation patterns can affect the
chemical and biological exchange and
decomposition process occurring on the
mud flat and change the deposition of
suspended material affecting the
productivity of the area Changes may
reduce the mud flat’s capacity to
dissipate storm surge runoff.
§ 230.43 Vegetated shallows.
(a) Vegetated shallows are
permanently inundated areas that under
normal circumstances support
communities of rooted aquatic
vegetation, such as turtle grass and
eelgrass in estuanne or marine systems
as well as a number of freshwater
species in rivers and lakes.
(b) Possible loss of values: The
discharge of dredged or fill material can
smother vegetation and benthic
organisms. it may also create unsuitable
conditions for their continued vigor by:
(1) changing water circulation patterns;
(2) releasing nutrients that increase
undesirable algal populations; (3)
releasing chemicals that adversely
affect plants and animals, (4) increasing
turbidity levels, thereby reducing light
penetration and hence photosynthesis;
and (5) changing the capacity of a
vegetated shallow to stabilize bottom
materials and decrease channel
shoaling. The discharge of dredged or
fill material may reduce the value of
vegetated shallows as nesting,
spawning, nursery, cover, and forage
areas, as well as their value in
protecting shorelines from erosion and
wave actions It may also encourage the
growth of nuisance vegetation.
§ 230.44 Coral reefs.
(a) Coral reefs consist of the l letal
deposit, usually of calcareous or
silicaceous materials, produced by the
vital activities of anthozoan polyps or
other invertebrate organisms present in
growing portions of the reef.
(b) Possible loss of values. The
discharge of dredged or fill material can
adversely affect colonies of reef building
organisms by burying them, by releasing
contaminants such as hydrocarbons into
the water column, by reducing light
penetration through the water, and by
increasing the level of suspended
particulates Coral organisms are
extremely sensitive to even slight
reductions in light penetration or
increases in suspended particulates.
These adverse effects will cause a loss
of productive colonies which in turn
provide habitat for many species of
highly specialized aquatic organisms
§ 230.45 Riffle and pool complexes
(a) Steep gradient sections of streams
are sometimes characterized by riffle
and pool complexes. Such stream
sections are recognizable by their
hydraulic characteristics. The rapid
movement of water over a coarse
substrate in riffles results in a rough
flow, a turbulent surface, and high
dissolved oxygen levels in the water.
Pools are deeper areas associated with
riffles. Pools are characterized by a
slower stream velocity, a steaming flow,
a smooth surface, and a finer substrate.
Riffle and pool complexes are
particularly valuable habitat for fish and
wildlife.
(b) Possible loss of values: Discharge
of dredged or fill material can eliminate
riffle and pool areas by displacement.
hydrologic modification, or
sedimentation. Activities which affect
riffle and pool areas and especially
riffle/pool ratios, may reduce the
aeration and filtration capabilities at the
discharge site and downstream. may
reduce stream habitat diversity, and
may retard repopulation of the disposal
site and downstream waters through
sedimentation and the creation of
unsuitable habitat. The discharge of
dredged or fill material which alters
stream hydrology may cause scouring or
sedimentation of riffles and pools.
Sedimentation induced through
hydrological modification or as a direct
result of the deposition of
unconsolidated dredged or fill material
may clog riffle and pool areas, destroy
habitats, and create anaerobic
conditions Eliminating poois and
meanders by the discharge of dredged or
fill material can reduce water holding
capacity of streams and cause rapid
runoff from a watershed. Rapid runoff
can deliver large quantities of flood
water in a short time to downstream
areas resulting in the destruction of
natural habitat, high property loss, and
the need for further hydraulic
modification.
Note.—Possible actions to minimize
adverse impacts on site or material
characteristics can be found in Subpart H
Subpart F—Potential Effects on
Human Use Characteristics
Note —The effects described in this
subpart should be considered in making the
factual determinations and tli ,e findings of
compliance or non-compliance in Subpart B.
§ 230.50 Municipal and private water
supplies.
(a) Municipal and private water
supplies consist of surface water or
ground water which is directed to the
intake of a municipal or private water
supply system
(b) Possible loss of values Discharges
can affect the quality of water supplies
with respect to color, taste, odor,
chemical content and suspended
particulate concentration, in such a way
as to reduce the fitness of the water for
consumption. Water can be rendered
unpalatable or unhealthy by the
addition of suspended particulates,
viruses and pathogenic organisms, and
dissolved materials. The expense of
removing such substances before the
water is delivered for consumption can
be high. Discharges may also affect the
quantity of water available for
municipal and private water supplies. In
addition, certain commonly used water
treatment chemicals have the potential
for combining with some suspended or
dissolved substances from dredged or
fill material to form other products that
can have a toxic effect on consumers.
§ 230.51 RecreatIonal and omm.r i&
fisheries.
(a) Recreational and commercial
fisheries consist of harvestable fish.
crustaceans, shellfish, and other aquatic
organisms used by man.
(b) Possible loss of values: The
discharge of dredged or fill materials
can affect the suitability of recreational
and commercial fishing grounds as
habitat for populations of consumable
aquatic organisms. Discharges can result
in the chemical contamination of
recreational or commercial fleheries.
They may also interfere with the
reproductive success of recreational and
commercially important aquatic species
through disruption of migration and
spawning areas. The introduction of
pollutants at critical times in their life
cycle may directly reduce populations of
commercially important aquatic
organisms or indirectly reduce them by
reducing organisms upon which they
depend for food. Any of these impacts
can be of short duration or prolonged.
depending upon the physical and
chemical impacts of the discharge and
the biological availability of
contaminants to aquatic organisms. -
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8th5F ’de a1 I ister’ I Vol. 45,TNo 249 1 Wednesday. December 24. 1980 / Rules and Regulations
230.52 Wate ”reIated recreation.
(a) Water-related recreation
compasses activities undertaken for
nusement and relaxation. Activities
encompass two broad categories of use:
consumptive. e.g.. harvesting resources
by hunting and fishing. and non-
comsumptive. e.g. canoeing and sight-
seeing.
(b) Possible Loss of values: One of the
more Important direct impacts of
dredged or fill disposal is to impair or
destroy the resources which support
recreation activities. The disposal of
dredged or fill material may adversely
modify or destroy water use for
recreation by changing turbidity,
suspended particulates. temperature.
dissolved oxygen, dissolved materials.
toxic materials, pathogenic organisms.
quality of habitat, and the aesthetic
qualities of sight, taste, odor, and color.
230.53 AesthetIcs.
(a) Aesthetics associated with the
aquatic ecosystem consist of the
perception of beauty by one or a
combination of the senses of sight.
hearing, touch, and smell. Aesthetics of
aquatic ecosystems apply to the quality
of life enjoyed by the general public and
property owners.
(b) Possible loss of values: The
discharge of dredged or fill material can
mar the beauty of natural aquatic
osystem8 by degrading water quality.
eating distracting disposal sites.
inducing inappropriate development.
encouraging unplanned and
incompatible human access, and by
destroying vital elements that contribute
to the compositional harmony or unity.
visual distinctiveness, or diversity of an
ares. The discharge of dredged or fill
material can adversely affect the
particular features, traits, or
characteristics of an aquatic area which
make it valu. ble to property owners.
Activities which degrade water quality,
disrupt natural substrate and
vegetational characteristics, deny
access to or visibility of the resource, or
result in changes in odor, air quality, or
noise levels may reduce the value of an
aquatic area to private property owners.
§ 230 54 Pwts, national and historical
monuments, natIonal seashores, wilderness
areas, research sites, and similar
preserves.
(a) These preserves Consist of areas
designated under Federal and State
laws or local ordinances to be managed
for their aesthetic, educational,
historical, recreational, or scientific
value.
(b) Possible loss of values: The
ischarge of dredged or fill material into
ch areas may modify the aesthetic,
educational, historical, recreational
and/or scientific qualities thereby
reducing or eliminating the uses for
which such sites are set aside and
managed.
Note —Possible actions to minimize
adverse impacts regarding site or material
charactenstica can be found in Subpart H.
Subpart G—Evaluatlon and Testing
§ 230.60 General evaluation of dredged or
fill material.
The purpose of these evaluation
procedures and the chemical and
biological testing sequence outlined in
§ 230.61 is to provide information to
reach the determinations required by
§ 23011 Where the results of prior
evaluations, chemical and biological
tests, scientific research, and experience
can provide information helpful in
making a determination, these should be
used Such prior results may make new
testing unnecessary. The information
used shall be documented. Where the
same information applies to more than
one determination, it may be
documented once and referenced in
later determinations.
(a) if the evaluation under paragraph
(b) indicates the dredged or fill material
is not a carrier of contaminants, then the
required determinations pertaining to
the presence and effects of
contaminants can be made without
testing. Dredged or fill material is most
likely to be free from chemical,
biological, or other pollutants where it is
composed primarily of sand, gravel, or
other naturally occurnng inert material.
Dredged material so composed is
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. However,
when such material is discolored or
contains other indications that
contaminants may be present. further
inquiry should be made.
(b) The extraction site shall be
examined in order to assess whether it
is sufficiently removed from sources of
pollution to provide reasonable
assurance that the proposed discharge
material is not a camer of
contaminants. Factors to be considered
include but are not limited to
(1) Potential routes of contaminants or
contaminated sediments to the
extraction site, based on hydrographic
or other maps, aerial photography. or
other materials that show watercourses,
surface relief, proximity to tidal
movement, pnvate and public roads,
location of buildings, municipal and
industrial areas, and agncultural or
forest lands
(2) Pertinent results from tests
previously cdmed out on the material at
the extraction site, or carried out on
similar material for other permitted
projects in the vicinity. Materials shall
be considered similar if the sources of
contamination, the physical
configuration of the sites and the
sediment composition of the materials
are comparable. in light of water
circulation and stratification, sediment
accumulation and general sediment
characteristics. Tests from other sites
may be reiieçl on only if no changes
have occuIr d at the extraction sites to
render the results irrelevant.
(3) Any potential for significant
introduction of persistent pesticides
from land runoff or percolation;
(4) Any records of spills or disposal of
petroleum products or substances
designated as hazardous under section
311 of the Clean Water Act (See 40 CFR
116);
(5) Information in Federal, State and
local records indicating significant
introduction of pollutants from
industries, municipalities, or other
sources, including types and amounts of
waste materials discharged along the
potential routes of contaminants to the
extraction site; and
(6) Any possibility of the presence of
substantial natural deposits of minerals
or other substances which could be
released to the aquatic environment in
harmful quantities by man-induced
discharge activities.
(c) To reach the determinations in
§ 23011 involving potential effects of the
discharge on the characteristics of the
disposal site, the narrative guidance in
Subparts C—F shall be used along with
the general evaluation procedure in
§ 230 60 and, if necessary, the chemical
and biological testing sequence in
§ 230.61. Where the discharge site is
adjacent to the extraction site and
subject to the same sources of
contaminants, and materials at the two
sites are substantially similar, the fact
that the material to be discharged may
be a carrier of contaminants is not likely
to result in degradation of the disposal
site. In such circumstances, when
dissolved material and suspended
particulates can be controlled to prevent
carrying pollutants to less contaminated
areas, testing will not be required.
(d) Even if the § 230 60(b) evaluation
(previous tests, the presence of polluting
industries and information about their
discharge or runoff into waters of the
U.S. bioinventories, etc.) leads to the
conclusion that there is a high
probability that the material proposed
for discharge is a carrier of
contaminants, testing may not be
necessary if constraints are available to
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Federal Register I Vol 45, No 249 / Wednesday, December 24, 1980 I Rules and Regulations 85355
reduce contamination to acceptable
levels within the disposal site and to
prevent contaminants from being
transported beyond the boundaries of
the disposal site, if such constraints are
acceptable to the permitting authority
and the Regional Administrator, and if
the potential discharger is willing and
able to implement such constraints.
However, even if tests are not
performed, the permitting authority must
still determine the probable impact of
the operation on the receiving aquatic
ecosystem. Any decision not to test
must be explained in the determinations
made under § 230 11.
§ 230.61 ChemIcal, biological, and physical
evaluation and testing.
Note.—The Agency is today proposing
revised testing guidelines The evaluation and
testing procedures in this section are based
on the 1975 404(b)(1) interim final
Guidelines and shall remain in effect until the
revised testing guidelines are published as
final regulations.
(a) No single test or approach can be
applied in all cases to evaluate the
effects of proposed discharges of
dredged or fill materials. This section
provides some guidance in determining
which test and/or evaluation procedures
are appropriate In a given case. Interim
guidance to applicants concerning the
applicability of specific approaches or
procedures will be furnished by the
permitting authority.
(b) Chemical-biological interactive
effects. The principal concerns of
discharge of dredged or fill material that
contain contaminants are the potential
effects on the water column and on
communities of aquatic organisms.
(1) Evaluation of chemical-biological
interactive effects. Dredged or fill
material may be excluded from the
evaluation procedures specified in
paragraphs (b)(2) and (3) of this section
if It is determined, on the basis of the
evaluation in § 230.60, that the
likelihood of contamination by
contaminants is acceptably low, unless
the permitting authority, after evaluating
and considering any comments received
from the Regional Administrator.
determines that these procedures are
necessary. The Regional Adminftfrator
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 analyses will be
of value in evaluating potential
environmental effects.
II the General Evaluation indicates the
presence of a sufficiently large number
of chemicals to render impractical the
Identification of all contaminants by
chemical testing, information may be
obtained from bioassays in lieu of
chemical tests.
(2) Watercolumn effects (i)
Sediments normally contain constituents
that exist in various chemical forms and
in various concentrations in several
locations within the sediment An
elutriate test may be used to predict the
effect on water quality due to release of
contaminants from the sediment to the
water column However, in the case of
fill material originating on land which
may be a carrier of contaminants, a
water leachate test is appropriate
(ii) Major constituents to be analyzed
in the elutriate are those deemed critical
by the permitting authority, after
evaluating and considering any
comments received from the Regional
Administrator, and considering results
of the evaluation in § 230.60. Elutriate
concentrations should be compared to
concentrations of the same constituents
in water from the disposal site. Results
should be evaluated In light of the
volume and rate of the intended
discharge, the type of discharge. the
hydrodynamic regime at the disposal
site, and other information relevant to
the Impact on water quality. The
permitting authority should consider the
mixing zone in evaluating water column
effects. The permitting authority may
specify bioassays when such procedures
will be of value.
(3) Effects on benthos. The permitting
authority may use an appropriate
benthic bioassay (including
bioaccumulatlon tests) when such
procedures will be of value in assessing
ecological effects and in establishing
discharge conditions.
(c) Procedure for comparison of sites.
(1) When an inventory of the total
concentration of contaminants would be
of value in comparing sediment at the
dredging site with sediment at the
disposal site, the permitting authority
may require a sediment chemical
analysis. Markedly different
concentrations of contaminants between
the excavation and disposal sites may
aid in making an environmental
assessment of the proposed disposal
operation. Such differences should be
interpreted in terms of the potential for
harm as supported by any pertinent
scientific hterature.
(2) When an analysis of biological
community structure will be of value to
assess the potential for adverse
environmental impact at the proposed
disposal site, a comparison of the
biological characteristics between the
excavation and disposal sites may be
required by the permitting authority. -
Biological indicator species may be
useful in evaluating the existing degree
of stress at both sites. Sensitive species
representing community components
colonizinc vanouS substrate types
itnin the sites should be identified as
possible bioassay organisms if tests for
toxicity are required. Community
structure studies should be performed
only when they will be of value in
determining discharge conditions. This
is particularly applicable to large
quantities of dredged material known to
contain atherse quantities of toxic
materials Community studies should
include benthic organisms such as
microbiota and harvestable shellfish
and finfish Abundance, diversity, and
distribution should be documented and
correlated with substrate type and other
appropriate physical and chemical
environmental characteristics.
(d) Physical tests and evaluation. The
effect of a discharge of dredged or fill
material on physical substrate
characteristics at the disposal site, as
well as on the water circulation,
fluctuation, salinity, and suspended
particulates content there. is important
in making factual determinations in
230.11. Where information on such
effects is not otherwise available to
make these factual determinations, the
permitting authority shall require
appropriate physical tests and
evaluations as are justified and deemed
necessary. Such tests may include sieve
tests. settleability tests, compaction
tests, mixing zone and suspended
particulate plume determinations, and
site assessments of water flow,
circulation. and salinity characteristics.
Subpart H—Actions To Minimize
Adverse Effects
Note.—There are many actions which can
be undertaken in response to 203.10(d) to
minimize the adverse effects of discharges of
dredged or fill material. Some of these.
- grouped by type of activity, are listed in this
subparl
§ 230.70 ActIons concerning the location
of the discharge.
The effects of the discharge can be
minimized by the choice of the disposal
site Some of the ways to accomplish
this are by
(a) Locating and confining the
discharge to minimize smothering of
organisms;
(b) Designing the discharge to avoid a
disruption of periodic water inundation
patterns;
(c) Selecting a disposal site that has
been used previously for dredged
material discharge;
(d) Selecting a disposal site at which
the substrate is composed of material
similar to that being discharged, such as
discharging sand on sand or mud on
mud,
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85358 Federal Register / VoL 45. No 24 I, Wednesday.- December 24 1980 1 Rules and Regulations
(e) Selecting the disposal site, the
discharge point, and the method of
discharge to minimize the extent of any
plume
(f) Des igning the discharge of dredged
or fill material to minimi,e or prevent
the creation of standing bodies of water
in areas of normally fluctuating water
levels, and minimize or prevent the
drainage of areas subject to such
fluctuations.
§ 230.71 ActIons concerning the material
to be discharged.
The effects of a discharge can be
minimized by treatment of. or
limitations on the material itself, such
as:
(a) Disposal of dredged material in
such a manner that physiochemical
conditions are maintained and the
potency and availability of pollutants
are reduced.
(b) Limiting the solid, liquid, and
gaseous components of material to be
discharged at a particular site:
(c) Adding treatment substances to
the discharge material:
(d) Utilizing chemical fiocculants to
enhance the deposition of suspended
particulates in diked disposal areas.
§ 230.72 Actions controlling the material
after discharge.
The effects of the dredged or fill
material after discharge may be
controlled by:
(a) Selecting discharge methods and
disposal sites where the potential for
erosion, slumping or leaching of
materials into the surrounding aquatic
ecosystem wiU be reduced. These sites
or methods include, but are not limited
to.
(1) Using containment levees, sediment
basins, and cover crops to reduce
erosion:
(2) Using lined containment areas to
reduce leaching where leaching of
chemical constituents from the
discharged material is expected to be a
problem:
(b) Capping iri.place contaminated
material with clean material or
selectively discharging the most
contaminated material first to be capped
with the remaining material.
(c) Maintaining and containing
discharged material properly to prevent
point and nonpoint sources of pollution:
(d) Timing the discharge to minimize
impact. fur instance during periods of
unusual high water flows, wind, wave.
and tidal actions.
§ 230.73 ActIons aflectinq the method of
dispersion.
The effects of a discharge can be
minimized by the manner in which it is
dispersed. such as:
(a) Where environmentally desirable.
distributing the dredged material widely
in a thin layer at the disposal site to
maintain natural substrate contours and
elevation
(b) Onenting a dredged or fill material
mound to minimize undesirable
- obstruction to the water current or
circulation pattern, and utilizing natural
bottom contours to minimize the size of
the mound;
(c) Using silt sa’eens or other
appropriate methods to confine
suspended particulate/turbidity to a
small area where settling or removal can
occur
(d) Making use of currents and
circulation patterns to mix, disperse and
dilute the discharge
• (e) Minimizing water column turbidity
by using a submerged diffuser system. A
similar effect can be accomplished by
submerging pipeline discharges or
otherwise releasing materials near the
bottom,
(I ’) Selecting sites or managing
discharges to confine and minimize the
release of suspended particulates to give
decreased turbidity levels and to
maintain light penetration for organisms;
(g) Setting limitations on the amount
of material to be discharged per unit of
time or volume of receiving water.
§ 230.74 Actions related to technology.
Discharge technology should be
adapted to the needs of each site. In
determining whether the discharge
operation sufficiently minimizes adverse
environmental impacts, the applicant
should consider
(a) Using appropriate equipment or
machinery, including protective devices.
and the use of such equipment or
machinery in activities related to the
discharge of dredged or fill material.
(b) Employing appropriate
maintenance and operation on
equipment or machinery, including
adequate training. staffing. and working
procedures:
(c) Using machinery and techniques
that are especially designed to reduce
damage to wetlands. This may include
machines equipped with devices that
scatter rather than mound excavated
materials. machines with specially
designed wheels or tracks, and the use
of mats under hea y machines to reduce
wetland surfdre compaction and rutting.
(d) Designing aicess roads and
channel spanning structures using
culverts, open channels, and diversions
that will pass both low and high water
flows, accommodate fluctuating water
le els and maintain circulation and
faunal movement.
(e) Employing appropriate m chinery
and methods of transport of the material
for discharge
§ 230 75 Actions aflecttng plant and
animal populations.
Minimization of adverse effects on
populations of plants and animals can
be achieved by’
(a) Avoiding changes in water current
and circulation patterns which would
interfere witfi the movement of animals:
(b) Selecting sites or managing
discharges to prevent or avoid creating
habitat conducive to the development of
undesirabI redators or species which
have a comp’etitive edge ecologically
over indigenous plants or animals.
(c) Avoiding sites having unique
habitat or other value, including habitat
of threatened or endangered species;
(d) Using planning and construction
practices to institute habitat
development and restoration to produce
a new or modified environmental state
of higher ecological value by
displacement of some or all of the
existing environmental characteristics.
Habitat development and restoration
techniques can be used to minimize
adverse impacts and to compensate for
destroyed habitat Use techniques that
have been demonstrated to be effective
in circumstances similar to those under
consideration wherever possible. Where
proposed development and restoration
techniques have not yet advanced to the
pilot demonstration stage, initiate their
‘use on a small scale to allow corrective
action if unanticipated adverse impacts
occur
(e) Timing discharge to avoid
spawning or migration seasons and
other biologically critical time penods
(I) Avoiding the destruction of
remnant natural sites within areas
already affected by development.
§ 230.76 Actions aflecting human use.
Minimization of adverse effects on
human use potential may be achieved
by
(a) Selecting discharge sites and
following discharge prot.edures to
prevent or minimize any potential
damage to the aesthetically pleasing
features of the aquatic site (e g
viewscapes) particularly with respect to
water quality
(b) Selecting disposal sites which are
not valuable as natural aquatic areas.
(c) Timing the discharge to avoid the
seasons or periods when human
recreational activity associated with the
dquatic site is most important.
(d) Following discharge procedures
which avoid or minimize the disturbance
of aesthetic features of an aquatic site or
ecosystem
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Federal Register I Vol 45. No 249 / Wednesday December 24 1980 I Rules and Regulations 65357
(e) Selecting sites that will not be
detrimental or increase incompatible
human activity or require the need for
frequent dredge or fit! maintenance
activity in remote fish and wildlife
areas.
(F) Locating the disposal site outside
of the vicinity of a public water supply
intake
§ 230 77 Other actions.
(a) In the case of fills, controlling
runoff and other discharges from
activities to be conducted on the fill.
(b) In the case of dams, designing
w,iter releases to accommodate the
needs of fish and wildlife
(c) In dredging projects funded by
Federal agencies other than the Corps of
Engineers, maintain desired water
quality of the return discharge through
agreement with the Federal funding
authority on scientifically defensible
pollutant concentration levels in
addition to any applicable water quality
standards.
(d) When a significant ecological
change in the aquatic environment is
proposed by the discharge of dredged or
fill material, the permitting authority
should consider the ecosystem that will
be lost as well as the environmental
benefits of the new system.
Subpart I—Planning To Shorten Permit
Processing Time
§ 230.80 Advanced identifIcation of
disposal areas.
(a) Consistent with these Guidelines.
EPA and the permitting authority, on
their own initiative or at the request of
any other party and after consultation
with any affected State that is not the
permitting authority, may identify sites
which will be considered as
(‘1) Possible future disposal sites.
including existing disposal sites and
non-sensitive areas, or
(2) Areas generally unsuitable for
disposal site specification:
(b) The identification of any area as a
possible future disposal site should not
be deemed to constitute a permit for the
discharge of dredged or fill m terial
within such area or a specifi tion of a
disposal site. The identification of areas
that generally will not be available for
disposal site specification should not be
deemed as prohibiting applioctions for
permits to discharge dredged or fill
material in such areas. Either type of
identification constitutes information to
facilitate individual or General permit
application and processing.
(c) An appropriate public notice of the
proposed identification of such areas
shall be issued
(dl To provide th sis for ad ’.anced
identification of di s l areas and
areas unsuitable fcr sposal. EPA and
the permitting auttt .rlty shall consider
the likelihood that use of the area in
question for dredged or fill material
disposal iIl comply with these
Guidelines To facilitate this analysis.
EPA and the perm tting duthority should
review available water resources
management data including data
available from the public, other Federal
and State agencies, and information
from approved Coactal Zone
Management programs and River Basin
Plans
(e) The permitting authority should
maintain a public record of the
identified areas and a written statement
of the basis for identification
IFR D cc 8U-4 1 Filed iZ-Z3-0 545 sm
BIWNG cODE e54O-Oi-M
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Federal RegIster 7 Vol. 44, No. 196 / Tuesday, October 9. 1979 I Rules and Regulations
suggesti on was valid, it would result in
such a change In scope of these
regulations that public comment should
be sought before incorporating it.
Some commenters suggested that the
regulations should require EPA to
consult with and to pay due respect to
the views of the Fish and Wildlife
Service. EPA feels that the existing
regulations already give the Service an
opportunity to comment and be heard.
Also. 231.3(d)(2) expressly provides
that copies of public notices are to be
mailed to the Service. EPA has worked
closely with Fish and Wildlife Service in
the past and expects this cooperation to
continue in the future.
One comrnenter suggested that the
regulations should state that the Corps
of Engineers cannot override a section
404(c) veto by the Administrator. EPA
feels that this is a clear from the statute.
that it is understood by all agencies
concerned, and that there Is no need for
including it In the text of the
regulations.
One commenter took the position that
EPA should be required to state
affirmatively that it has no objection
before the Corps may Issue a section 404
permit. Such a requirement goes beyond
the needs of section 404(c), sInce some
of EPA ’. ojections to permits are based
on grounds that are outside the scope of
sectIon 404(c). This suggestion thus
seems to be a matter which would be
more appropriately addressed in
comments on the Corps’ upcoming
revisions to their regulations. In
addition, EPA notes that such a
requirement would result In a lot of
unnecesary paperwork and would have
a potential for delay since. In the case of
the vast majority of permits which are
issued, EPA has no objections or its
objections are resolved before the Corps
announces Its intention to issue the
permit.
Scope of the Regulations
The regulations describe how the
Administrator’s authority under 404(c) is
to be exercised. The following is a
summary of the process.
Under 231.3 of the regulations,
section 404(c) proceedings begin when
the Regional Administrator issues a
proposed determination that a site
should be prohibited, withdrawn, or
restricted for use as a disposal site
because of unacceptable adverse
environmental effects. This proposed
determination does not represent a
judgment that discharge of dredged or
fit! material will result in unacceptable
adverse effects; it merely means that the
Regional Administrator believes that the
issue should be explored. The Regional
Administrator then consults with the
Corps, or, In the case of a site covered
by a state program. with the state and, if
no corrective actions are agreed upon.
he Issues a public notice, inviting public
comments on the proposed
determination. The Corps has agreed
that if there is a permit application
pending, such notice will serve to stay
its Issuance of the permit
If there Is enough Interest, the
Regional Administrator or his designee
holds a public hearing under 231.4 to
supplement the public comments. (If the
Corps or a State plans a hearing on a
permit applicatIon, its hearing and the
EPA hearing may be consolidated if the
agencies agree). After the comment
period and the hearing, if one is held,
the Regional Administrator or his
designee reviews the information
available to him and decides whether to
withdraw his proposed determination to
prohibit or withdraw a site ( 231.5). If
he withdraws the proposed
determination, he gives public notice of
that step, and the matter drops (unless
the Administrator decides to review).
Otherwise the Regional Administrator
or his designee sends a “recommended
determination.” and the record on which
it was based, to the Adni ,ni trator for a
“final determination.” The
Administrator then reviews that
material, gives the Corps and the state a
final opportunity to take corrective
measures, and makes a final
determination whether a discharge of
dredged or fill material will result in
unacceptable adverse effects warranting
the prohibition or restriction of the
disposal site. This determination and
reasons therefor are then made public.
( 231.6)
The regulations also include a
provision for emergency suspension of a
permit pending 404(c) procedures.
Where there is Imminent danger of
irreparable harm to the environment and
the public interest requires, the
Administrator may ask the Corps or
state to suspend an existing permit
under the Corps’ regulations (33 CFR
325.7) and/or may go to Court under
section 504 of the CWA It is expected
that the suspensions will be infrequent,
since it is EPA’s policy to try to resolve
environmental problems before permits
are issued.
Evaluation Plan
Executive Order 12044 requires that
each new proposed regulation be
accompanied by a plan to evaluate its
effectiveness and the continued need for
the regulation The 404 section of the
Office of Water Planning and Standards
will be responsible for completing an
evaluation of these regulations within 4
years of their effective date The
evaluation will assess the sucess or
failure of the regulations in providing
expeditious, fair, and informed decision-
making under 404(c), and will be based
on an analysis of the track record of
404(c) proceedIng. under these
regulations. -
Regulatory Analysis
Because the number of section 404(c)
actions is expected to be email and
because actions are unlikely to be
concentrated in a particular Industry or
locahty ,these regulations should not
have m or economic consequences
within the meaning of Executive Order
12044.
Dated Septermber 27, 197
Douglas M. Co tl.,
Administrator.
Accordingly, 40 CFR Chapter I is
amended by adding a new ‘Part 231—
Section 404(c) Procedures” to read as
follows:
PAI T 231—SECTION 404(c)
PROCEDURES
231.1 Purpose and scope.
2312 Definitions.
231 3 Procedures for proposed
determinations.
2314 Public comments and hearings.
231 5 Recommended determination.
2318 Adniinistrator’s final determinations.
231.7 Emergency procedure.
231.8 Extension of time.
Authorityi 33 U.S.C. 1344(c).
23l.I PurpO.sandscopi.
(a) The Regulations of this part
include the procedures to be followed by
the Environmental Protection agency in
prohibiting or withdrawing the
specification, or denying, restricting, or
withdrawing the use for specification, of
any defined area as a disposal site for
dredged or fill material pursuant to
section 404(c) of the Clean Water Act
(“CWA”), 33 U.S.C. 1344(c). The U.S.
Army Corps of Engineers or a state with
a 404 program which has been approved
under section 404(h) may grant permits
specifying disposal sites for dredged or
fill material by determining that the
section 404(b)(1) Guidelines (40 CFR
Part 230) allow specification of a
particular site to receive dredged or fill
material. The Corps may also grant
permits by determining that the
discharge of dredged or fill material is
necessary under the economic mpact
provision of section 404(b)(2). Under
section 404(c), the Administrator may
exercise a veto over the specification by
the U S Army Corps of Engineers or by
a state of a site for the discharge of
dredged or fill material. The
Administrator may also prohibit the
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Federal Register / Vol 44, No 196 / Tuesday. October 9, 1979 I Rules and Regulations
58083
specification of a site under scctio
4C4(c) with regard to any existirg or
potential disposal site before a permit
application has been submitted to or
approved by the Corps or a state The
Administrator is authorized to prohibit
or otherwise restrict a site whene e- be
determines that the discharge of
dredged cr fiil material is ha’ ing or will
have 8fl “unacceptable sd ersc effect’
on municipal water supplies, shellfIsh
beds 8nd fishery areas (including
spawning and breeding areas), wildlife.
or recreational areas In maki’ig this
determination, the Administrator will
take into account all information
available to him. indudmg any written
determination of compliance with the
section 404(b)(1) Guidelines made in 40
CFR Part 230, and will consult with the
Chief of Engineers or with the state.
(b) These regulations establish
procedures for the foIli wlng steps:
(1) The Regional Administrator’s
proposed determinations to prohibit or
withdraw the specification of a defined
area as a disposal site, or to deny.
restrict or withdraw the use of any
defined area for the discharge of any
particular dredged or fill material;
(2) The Regional Administrator’s
recommendation to the Administrator
for determination as to the specification
of a defined area as a disposal site.
(3) The Administrator’s final
determination to affirm, modify or
rescind the recommended determination
after consultation with the Chief of
Engineers or with the state.
(c) Applicability’ The regulatIons set
forth In this part are applicable
whenever the Administrator is
considering whether the specification of
any defined area as a disposal site
should be prohibited, denied, restricted,
or withdrawn. These regulations apply
to all existing, proposed or potent.ial
disposal sites for discharges of dredged
or fill material into waters of the United
States, as defined in 40 CFR 230.2,
*231.2 DefInition.
For the purposes of this part, the
definitions of terms in 40 CFR 230.2 shall
apply. In addition, the term:
(a) “Withdraw specification” meai
to remove from designation any area
already specified as a disposal site by
the US. Army Corps of Engineers or by
a state which has assumed the section
404 program, or any portion of such
area.
(b) “Prohibit specification” means to
prevent the designation of an area as a
present or future disposal site.
(c) “Deny or restrict the use of any
defined area for specification” is to deny
or restrict the use of any area for the
present cr future d :sc’norh’e of a
d-ea ro or fill material
[ d “Person” means an indi’.idLa t
corporation. partnerahip, associatio’i,
Federal agency. s;ate. municipality. o
commiss’on, or poiiti.al subdivisor. of a
state, or any interstate body
(e) Unacceptable adterse effect”
means impact on an aquatic or wetland
ecc stem which is likely to result in
significant degrada:ion of municipal
water supplies (including surf,icc or
ground water) or significant loss of or
damage to fisheries. shellfibhing, or
wildlife habitat or recreation areas In
evaluating the unacceptability of such
impacts, consideration should he given
to the relevant portions of the section
404(b)(1) guidelines (40 CFR Part 230)
(f) “State” means any state agency
administering a 404 program which has
been approved under section 404(h).
231.3 Procedures for proposed
determInatIons.
(a) If the Regional Administrator has
reason to believe after evaluating the
Information available to him, including
any record developed under the section
404 referral process specified In 33 CFR
323.5(b), that an “unacceptable adverse
effect” could result from the
specification or use for specification of a
defined area for the disposal of dredged
or fill material, he may initiate the
following actions:
(1) The Regional Administrator will
notify the District Engineer or the state.
if the site is covered by an approved
state program, the owner of record of
the site, and the applicant, if any, In
writing that the Regional Administrator
intends to issue a public notice of a
proposed determination to prohibit or
withdraw the specification, or to deny,
restrict or withdraw the use for
specification, whichever the case may
be, of any defined area as a disposal
site,
(2) If WIthin 15 days of receipt of the
Regional Administrator’s notice under
paragraph (a)(1) of this section, it has
not been demonstrated to the
satisfaction of the Regional
Administrator that no unacceptable
adverse effect(s) will occur or the
District Engineer or state does not notify
the Regional Administrator of his intent
to take corrective action to prevent an
unacceptable adverse effect satisfactory
to the Regional Administrator, the
Regional Administrator shall publish
notice of a proposed determination in
accordance with the procedures of this
section. Where the Regional
Administrator has notified the District
Engineer under paragraph (aXi) of this
section that he is considering exercising
sectIon 404(c) authority wIth respect to a
pan ru t ar d:sposol site for whic 1 i a
pe 1 ppLcation ic pend:ng but for
tc c-r has beon iscued the
D:stnict rng.neer. i:t accordance with 33
CFR 325 S. shall not issue the permit
until f n&.l action is taken under this
Part
Cornnient In cases rn ,piung a
proposed dispnsal qite for which a
permit application is pending it is
anticipated that the proceduies of the
scctior. 404 referral process will
normally be exhausted pror to any final
decision of whether to initiate a 404(c)
proceeding.
(b) Public notice of every proposed
determination and notice of all public
hearings shall be given by the Regional
Administrator. Every public notice shall
contain, at a minlmumi
(1) An announcement that the
Regional Administrator has proposed a
determination to prohibit or withdraw
specification, or to deny, restrict, or
withdraw the use for specification, of an
area as a disposal site. induding a
summary of the facts on which the
proposed determination Is based.
(2) The location of the existing.
proposed or potential disposal site, and
a summary of its characteristics:
(3) A summary of Information
concerning the nature of the proposed
discharge, where appHcable
(4) The Identity of the permit
applicant, If any’,
(5) A brief description of the right to,
and procedures for requesting, a public
hearing; and
(6) The address and telephone number’
of the office where Interested pomona
may obtain additional information.
including copies of the proposed
determination; and
(7) Such additional statements,
representations, or Information as the
Regional Administrator considers
necessary or proper.
(c) In addition to the Information
required under paragraph (b) of this
section. public notice of a public hearing
held under * 231.4 shall contain the
following informationi
(1) Reference to the date of public
notice of the proposed determination.
(2) Date, time and place of the
hearing; and
(3) A brief description of the nature
and purpose of the hearing induding the
applicable rules and procedures.
(d) The following procedures for
giving public notice of the proposed
determination or of a public hearing
shall be followed:
(1) Publication at least once in a daily
or weekly newspaper of general
circulation in the area in which the
defined area is located, In addition the
Regional Administrator may (1) post a
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58084 Federal Register / Vol. 44, No. 198 / Tuesday, October 9, 1979 I Rules and Regulations
copy of the notice at the principal office
of the municipality in which the defined
area Is locate&or If the defined area is
not located ned! a sizeable community,
at the principal office of the political
subdivision (State. county or local.
whichever is appropriate) with general
jurisdiction over the area in which the
disposal site Is located, and (II) post a
copy of the notice at the United States
Post Office serving that area.
(2) A copy of the notice shall be
mailed to the owner of record of the site,
to the permit applicant or permit holder.
If any, to the U.S. Fish and Wildlife
Service. National Marine Fisheries
Service and any other interested Federal
and State water pollution control and
resource agencies. and to any person
who has filed a written request with the
Regional Administrator to receive
copies of notices relating to section
404(c) determinations;
(3) A copy of the notice shall be
mailed to the appropriate District and
Division P.ngtneer(s) and state
(4 The notice will also be published
in the Federal Register.
231.4 Pub c comments end hsartngs.
(a) The Regional Administrator shall
provide a comment period of not lees
than 30 or more than 60 days following
the date of public notice of the proposed
determination. During this period any
Interested persons may submit written
comments on the proposed
determination. Comments should be
directed to whether the proposed
determination should become the final
determination and corrective action that
could be taken to reduce the adverse
Impact of the discharge. All such
comments shall be considered by the
Regional Administrator or his designee
In preparing his recommended
determination in 231.5.
(b) Where the Regional Administrator
finds a significant degree of public
Interest In a proposed determination or
that it would be otherwise in the public
interest to hold a hearing, or if an
affected landowner or permit applicant
or holder requests a hearing, he or his
designee shall hold a public hearing.
Public notice of that hearing shall be
given as specified in 231 3(c). No
hearing may be held prior to 21 days
alter the date of the public notice The
hearing may be scheduled either by the
Regional Administrator at his own
initiative, or in response to a request
received during the comment period
provided for in paragraph (a) of this
section. If no public hearing is held the
Regional Administrator shall notify any
persons who requested a hearing of the
reasons for that decision. Where
practicable, hearings shall be conducted
In the vicinity of the affected site.
(c) Hearings held under this section
shall be conducted by the Regional
Administrator, or his designee. In an
orderly and expeditious manner. A
record of the proceeding shall be made
by either tape recording or verbatim
transcript
(d) Any person may appear at the
hearing and submit oral or written
statements and data and may be
represented by counsel or other
authorized representative. Any person
may present wrltten statements for the
hearing file prior to the time the hearing
file Is closed to public submissions, and
may present proposed findings and
recommendations. The Regional
Administrator or his designee shall
afford the participants an opportunity
for rebuttal.
(e) The Regional Administrator, or his
designee. shall have discretion to
establish reasonable limits on the
nature, amount or form of presentation
of documentary material and oral
presentations. No cross examination of
any hearing participant shall be
permitted. although the Regional
Administrator, or his designee. may
make appropriate Inquiries of any such
participant
(I) The Regional Administrator or his
designee shall allow a reasonable time
not to exceed 15 days after the close of
the public hearing for submission of
written comments. After such time has
expired. unless such period Is extended
by the Regional Administrator or his
designee for good cause, the hearing file
shall be closed to additional public
written comments.
(g) No later than the time a public
notice of proposed determination is
issued. a Record Clerk shall be
designa ted with responsibility for
maintaining the administrative record
identified in 231.5(e). Copying of any
documents in the record shall be
permitted under appropriate
arrangements to prevent their loss. The
charge for such copies shall be in
accordance with the written sch du1e
contained in Part 2 of this chapter.
231.5 Recommended determination.
(a) The Regional Administrator or his
designee shall, within 30 days after the
conclusion of the public hearing (but not
before the end of the comment period).
or. ii no hearing is held, within 15 days
after the expiration of the comment
period on the public notice of the
proposed determination, either
withdraw the proposed determination or
prepare a recommended determination
to prohibit or withdraw specification, or
to deny, restrict, or withdraw the use for
specification, of the disposal site
because the discharge of dredged or fill
material at such site would be likely to
have an unacceptable adverse effect.
(b) Where a recommended
determination is prepared. the Regional
Administrator or his designee shall
promptly forward the recommended
determination and administrative record
to the Administrator for review, with a
copy of the recommended determination
to the Assistant Aiimlnisfrator for Water
and Waste Management
(c) Where the Regional Administrator.
or hledeslgnee, decides to withdraw the
propose I determination, he shall
promptly notify the Administrator by
mall, with a copy to the Assistant
Administrator for Water and Waste•
Management. who shall have 10 days
from receipt of such notice to notify the
Regional Administrator of his intent to
review such withdraw6L Copies of the
notification shall be sent to all persons
who commented on the proposed
determination or participated at the
bearing. Such persons may submit
timely written recommendations
concerning review. (1) lIthe
Administrator does not notify him, the
Regional Administrator shall give notice
at the withdrawal of the proposed
determination as provided In * 231.3(d).
Such notice shall constitute final agency
action. (2)11 the Administrator does
decide to review, the Regional
Administrator or his designee shall
forward the administrative record to the
Administrator for a final determination
under * 231.6. Where there is review of
a withdrawal of proposed determination
or review of a recommended
determination under * 231.6. f’inal
agency action does not occur until the
Administrator makes a final
determination.
(d) Any recommended determination
under paragraph (b) of this section shall
include the followrngi
(1) A summary of the unacceptable
adverse effects that could occur from
use of the disposal site for the proposed
discharge;
(2) Recommendations regarding a
final determination to prohibit. deny.
restrict, or withdraw, which shall
confirm or modify the proposed
determination, with a statement of
reasons
(e) The administrative record shall
consist of the following
(1) A copy of the proposed
determination, public notice, written
comments on the public notice and
written submissions in the hearing file:
(2) A transcript or recording of the
public hearing, where a heanng was
heidi
(3) The recommended determination;
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3 4
Federal Register I Vol. 44 , No.196 I Tuesday, October 9, 1979 / Rules and Regulations
58085
(4) Where possible a copy of the
record of the Corps a” the state
perta.fliflg to tre £ e in question.
(5) Any other information considered
by t 1 ’e Regioral Adrro’stratcr or his
dcsig’ lCe.
221 6 AdministratOr S final
detsrml1atiQr.
After ret iew rg the recon rnendattor.s
of the Regional Admirustrator or his
des:gnee, the Admiristrator shall within
30 days of receipt of the
recommendations and administrative
record init .ate consultation t}i the
Chtcf of Engir.eers. the owner a! record,
and. where applicable, the State and the
applicant. if any. They shall have 15
days to notify the Administrator of their
intent to take corrective action to
prevent an unacceptable adverse
effect(s), satisfactory to the
Administrator. Within 60 days of receipt
of the recommendations and record, the
Administrator shall make a final
determination affirming, modifying, or
rescinding the recommended
determination. The final determination
shall describe the satisfactory corrective
action, if any, make findings, and state
the reasons for the final determination.
: Notice of such final determination shall
be published as provided in 0 231.3. and
‘.- shall be given to all persons who
: participated In the public hearing.
Notice of the Administrator’s final
determination shaU also be published in
‘:the Federal Register. For purposes of
judicial review, a final determination
. constitutes final agency actlo under
section 404(c) of the Act,
0231.7 Emergency procedure
Where a permit has already been
Issued, and the Administrator has
reason to believe that a discharge under
the permit pr ente an Imminent danger
of Irreparable harm to municipal water
supplies, shellfish beds and fishery
areas (includJng spawning and breeding
areas) wildlife, or recreational areas,
‘ and that the public health, interest, or
safety requires, the Admlnistratàr may
ask the Chief of Engineers to suspend
‘ the permit under 33 CFR 325.7, or the
state, pending completion of (
Proceedings under Part 231. The
‘AdmlnIstrator may also take
Ippropriate action as authorized under
1ectlon 504 of the Clean Water Act, If a
permit 18 suspended, the Administrator
na Regional Administrator (or his
1 deslgneej may, where appropriate,
jcorten the times allowed by these
gU1aUons to take particular actions
23UEitt,nslonofthn, .
AdinInIity tor or the p gio :
m2nIsfrator may, upon a shoWing It .-
good cause, extend the time
requirements in these regulations
Notice of any such extension shall be
published in the Federal Register and, os
appropriate, throug t i ott’er forms of
notice.
(FR Ooc. 79— O42 Fiied 1O.-5—’R 845 ar .}
BiLUi4S CO sSeG- i4I
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Federal Rcoisler I Vol 53 No iog / M’nd v J r.e 6 1038 I Ru)es and Regulations
2C7’3
a l e ighle For a’,’er of Pede ’
v in light of the special Federal
nt rest in t em
V.e anticipate that existing Corps
rrt n—wide permits will be used as a
b c or de eloping categories to
d ( ‘ rge eligible for waiver of Federal
re e Previous Federal agencies
ci .rnrnefltS (or no comment) r n also be
usrd in dcte’rn’n”ig acti ities eligible for
%%di .er ol Fe cral resre s Where EPA
has used the advanced identification
prou.d ire with the Corps or the Stae
urder 40 CFR 230 80. or or. its own
in 1idti e under Sect.on 404 (c) (40 CFR
Part 231). the results of that process will
be used to determine those areas and
categories of discharge that should be.
and/or those that should not be.
considered for waiver of Federal review
Categories of actisities eligible for
ssa’ver of Federal re iew in a particular
State will be developed after
consultation with the Corps. FWS. and
NMFS. These categones will be
described in the State’s submission for
program approval and therefore will be
subject to public comment. Activities for
which Federal review is waived are also
subject to annual review If. at any time.
any of these categories of activities are
deemed inappropriate for continued
waiver, they can (and will) be
withdrawn from the waiver piovision
and become subject to individudi
review.
Section 23352 In response to
comments, we hate added a
requirement that the State’s draft annual
report to be made a ailable for public
inspection
The annual report is a mandatory. not
a discretionary. requirement for an
approved program In response to
comment, we have added to the
information that shall be included in the
annual report the number of suspected
unauthorized activities reported to the
S:ate and the nature of the State’s action
on these reported activities:..added that
the State shall report the number of
‘violations identified as well as the
number and nature of enforcement
actions taken, and the number of permit
applications recerved but not
processed -.
Contrary to comment on the annual
reporting requirements, the regulation
does require the Director to respond, in
the final report. to the Regional
Administrator’s comments and
questions about the draft report.
Section 233.53: One commentor
suggested that program withdrawal
should be initiated only where a State’s
program. on the whole, has repeatedly
failed to comply with the reqwrenients
for an approvable program This
commentor suggested that continued
probi’ms with any one of the crteria
soectied ir § 233 53(h) 12) and (3) is rot
suff:r nt gro nds icr program
wthdra ’.sai V e caiinot concur with this
suggestion ihile we do agree that
program wurdrawal ssill not be taNen
lrghty and that program approval will
not be sithdrawn for minor rensons,
coritnued non-performar.ce of any of the
criteria speclied can be grounds for
Initatirig program withdrawal Each of
the criteria listed is a ‘.ital part of an
approsed program and continued non-
j)er 1 o:marce of any of these s ould
result in a program that no longer fulfills
the requirements for an approved
program
These regulations provide that the
Administrator shalt tespond in writing
to an petition to commence withdrawal
proceedings. One commentor suggested
that this exceeded the public
involvement requirements. We believe
that such written response is
nonetheless good policy and publish the
rule as proposed
Executive Order 12291
Since these rules are revisions which
provide regulatory relief by, for the most
part. increasing flexibility in State
program design and administration, we
have determined that they are not a
major rule requiring a Regulatory Impact
Analysis under Executive Order 12291
This rule has been reviewed by the
Office of Management and Budget in
accordance with the requirements of
Executive Order 12291.
Regulatory flexibility Act
This final rule was reviewed under
the Regulatory Flexibility Act of 1980.
Pub L 96-354. which requires
preparation of a regulatory flexibility
analysis for any rule which is likely to
have significant economic impact on a
substantial number of small entities.
Since this revision to 40 CFR Part 233
will reduce paperwork. reporting
requirements and application
information requirements. this final rule
will be beneficial to small entities. Thus.
no Regulatory Flexibility Analysis is
needed.
Paperwork Reduction Act
The Office of Management and Budget
(0MB) has approved the information
collection requirements contained in this
final rule under the provisions of the
Paperwork Reduction Act 44’U S.C.
3501 et seq. and has assigned 0MB
control numbers:
2090—011.
2090-012.
2090—013.
2090—015.
List c Subjects in 40 CFR Parts 232 and
Adrnini3trat’ ’e p:actice and
procadure. Reporting and recordkcepirig
rcqrirementS. Confidential business
information. Water pollution control.
Indian ldnds. Intergovernmental
relations. Wate” SuPPi Waterwdys.
r\a igation. Penalties. Weilands
D i d May 27 19*18
Lee NI Thomas.
i / ,,,slra(or Eu i ‘ronmeti . ’ . / Pratic’zon
i’t i’flC.
For the reasons set out in the
preamble. 40 CFR Part 232 is amended
as set forth below
I Part 232 is added to read as follows
PART 232—404 PROGRAM
DEFINITIONS; EXEMPT ACTIVITIES
NOT REQUIRING 404 PERMITS
Sec
2321 Purpose and scope of this part
2322 Definitions
2323 Activities not requiring permits
AuthoritT 33 USC 1344
§ 232.1 Pw’pose and scope of this p&t.
Part 232 contains definitions
applicable to the Section 404 program
for discharges of dredged or fill material.
These definitions apply to both the
Federally operated program and State
administered programs after program
approval This part also describes those
activities which are exempted from
regulation. Regulations prescribing the
substantive environmental critena for
issuance of Section 404 permits appear
at 40 CFR Part 230 Regulations
establishing procedures to be followed
by the EPA in denying or restricting a
disposal site appear at 40 CFR Part 231
Regulations containing the procedurcs
anti policies used by the Corps in
administering the 404 program appear at
33 CFR Parts 320-330 Regulations
specifying the procedures EPA will
follow, and the criteria EPA will apply
in approving. monitoring, and
withdrawing approval of Section 404
State programs ajpear at 40 CFR Part
233
§ 232.2 DefinItions.
(a) Administrator means the
Administrator of the Environmental
Protection Agency or an authorized
representative.
(b) Application means a form for
applying for a permit to discharge
dredged or fill material into waters of
the United States.
(c) Approved program means a State
program which has been approved by
the Regional Administrator under Part
233 of this chapter or which Is deemed
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20774
Federni—Register /Yol 53, No 10 ’/ Monday, lone 6, 1988 / Rules and Regulations
approved under Section 404(h)(3), 33
U.S.C. 1344(h)(3).
(d) Best management practices
(BMPs) means schedules of activities,
prohibitions of practices, maintenance
procedures, and other management
practices to prevent or reduce the
pollution of waters of the United States
from discharges of dredged or fill
material. BMPs include methods.
measures, practices, or design and
performance standards which facilitate
compliance with the Section 404(b)(1)
Guidelines (40 CFR Part 230), effluent
limitations or prohibitions under Section
307(a), and applicable water quality
standards.
(e) Discharge of dredged niatenal
means any addition of dredged material
into waters of the United States. The
term includes, without limitation, the
addition of dredged material to a
specified discharge site located in
waters of the United States and the
runoff or overflow from a contained
land or water disposal site. Discharges
of pollutants Into waters of the United
States resulting from the onshore
subsequent processing of dredged
material that is extracted for any
commercial use (other than fill) are nut
included within this term and are
subject to Section 402 of the Act even
though the extraction and deposit of
such material may require a permit from
the Corps or the State Section 404
program. The term does not include de
minimize, incidental soil movement
occurring during normal dredging
operations.
(I) Discharge of fill matenal means
the addition of fill material into waters
of the United States. The term generally
includes, without limitation, the
following activities: Placement of fill
that is necessary to the construction of
any structure; the building of any
structure or impoundment requiring
r ’jck, sand, dirt, or other materials for its
construction; site-development fills for
rc’creational, industrial, commercial.
residential, and other uses. causeways
or ru. ’i1 l’Us. dams and dikes: artificial
isldnds. pioperty protection and/or
r”lani,ition devn es such as riprap.
g’:)ns. s ,iwalls, breakivaters, arid
revetments, beach nourishment, le’ ees.
fill for structures such as sewage
treatment facilities, intake and outfall
pipes associated with power plants and
subaqueous utility lines, and artifiual
mt ’efs
(g) Dred ,ged materiel means material
that is excavated or dredged from
%.lters of the United States
(h) Effiuer’t means dredged material
or fill material, including return flow
from confined sites
(i) Fill material means any “pollutant”
which replaces portions of the “waters
of the United States” with dry land or
which changes the bottom elevation of a
water body for any purpose.
(j) General permit mea?is a permit
authorizing a category of discharges of
dredged or fill material under the Act.
General permits are permits for
categories of discharge which are
similar in nature, will cause only
minimal adverse environmental effects
when performed separately, and will
have only minimal cumulative adverse
effect on the environment.
(K) Owner or operator means the
owner or operator of any activity
subject to regulation under the 404
program.
(1) Permit means a written
authorization issued by an approved
State to implement the requirements of
Part 233, or by the Corps under 33 CFR
Parts 320-330, When used in these
regulations, “permit” Includes “general
permit” as well as individual permit.
(m) Person means an individual,
association, partnership, corporation,
municipality, State or Federal agency, or
an agent or employee thereof.
(n) RegionalAdministrotor means the
Regional Administrator of the
appropriate Regional Office of the
Environmental Protection Agency or the
authorized representative of the
Regional Administrator.
(o) Secretary means the Secretary of
the Army acting through the Chief of
Engineers.
(p) State regulated waters means
those waters of the United States in
which the Corps suspends the issuance
of Section 404 permits upon approval of
a State’s Section 404 permit program by
the Administrator under Section 404(h).
‘l’he program cannot be transferred for
those waters which are presently used,
or are susceptible to use In their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce shoreward to their
ordinary high water mark, including all
waters which are subject to the ebb and
flow of the tide shoreward to the high
tide line including wetlands ndjacent
thereto All other waters ot the United
States in a State with an appioved
program shall be under jurisdiction of
the State program, and shall be
identified in the program description as
required by Part 233
(q) Waters of the United States
means
(1) All waters which are currently
used, were used in the past. or may be
susceptible to us in interstate or foreign
commerce. including all waters which
are subject to the ebb and flow of the
tide
(2) All interstate waters including
interstate wetlands.
(3) All other waters, such as intrastate
lakes, rivets, streams (including
intermittent streams), mudilats,
sandflats. wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation, or
destruction of which would or could
affect interstate or foreign commerce
including any such waters:
(i) Which are or could be used by
interstate or foreign travelers for
recreá jinal or other purposes: or
(ii) Frbm which fish or shellfish are or
could be taken and sold m interstate or
foreign commerce; or
(iii) Which are used or could be used
for industrial purposes by industries in
interstate commerce.
(4) All impoundments of waters
otherwise defined as waters of the
United States under this definition;
(5) Tributaries of waters identified in
paragraphs (g)(1)-(4) of this section;
(6) The territorial sea, and
(7) Wetlands adjacent to waters
(other than waters that are themselves
wetlands) identified in paragraphs
(q)(1H6) of this section
Waste treatment systems, including
treatment ponds or lagoons designed to
meet the requirements of the Act (other
than cooling ponds as defined in 40 CFR
123 11(m) which also meet the criteria of
this definition) are not waters of the
United States.
(r) Wetlands means those areas that
are inundated or saturated by surface or
ground water at a frequency and
duration sufficient to support, and that
under normal circumstances do support,
a prevalence of vegetation typically
adapted for life in saturated soil
conditions. Wetlands generally include
swamps, marshes, bogs, and similar
areas.
§ 232.3 Activities not requiring permits.
Except as specified in paragraphs (a)
and (b) of this section. any discharge of
dredged or fill material that may result
fiom any of the activities described in
paragraph (c) of this section is not
prohibited by or otherwise subiect to
regulation under this Part -
(a) If any discharge of dredged or fill
material resulting from the acuv:ties
listed in paragraph (c) of this section
COfltdiiiS any toxic polutdnt listed under
Section 307 of the Act, such disciiarge
shall be subject to any applicable toxic
effluent standard or prohibition. and
shall require a Section 404 permit
(b) Any discharge of dredged or f,il
material into waters of the United States
incidental to any of the activities
ident:iied in paragraph (c) of this SPCtiOfl
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2O ’75
must ha e a permit if it is part of an
activity whose purpose is to convert an
area of the i aters of the United States
into a use to which it was not previoush
sublect. where the flow or circulation of
i atirs of the United States may be
impaired or the reach of such waters
reduced Where the proposed discharge
will result in significant disccrnable
alterations to flow or circulation, the
presumption is that flow or circulation
may he impaired by sich alteratior.
lNote—Fore ample a perrn i ilt be
required for thc conversion of a c press
swamp Co some other use or the conversion of
a wetland from s !vicuItural to agncuitural
use when there isa discharge of dredged or
fill material into waters of the United States
in coniunction with constuction of dikes.
drainage ditches or other works or structures
used to effect such conversion A conversion
of Section 404 wetland to a non-wetland is a
change in use of an area of waters of the U S.
A discharge which ete stes the bottom of
waters of the United States without
converting It to dry land does not thereby
reduce the reach of. but may alter the flow or
circulation of, waters of the United States)
(c) The following activities are exempt
from Section 404 permit requtrements.
except as specified in paragraphs (a)
and (b) of this section’
(1)(i) Normal fanning. silviculture and
ranching activities such as plowing.
seeding, cultivating, minor drainage, and
harvesting for the production of food.
fiber, and forest products. or upland soil
and water conservation practices. as
defined in paragraph (d) of this section.
(ii)(A) To fall wider this exemption.
the activities specified in paragraph
(c)(1) of this section must be part of an
established (i.e.. ongong) farming.
ailviculture, or ranching operation, and
must be in accordance with definitions
in paragraph (d) of this section.
Activities on areas lying fallow as part
of a conventional rotational cycle are
part of an established operation.
(B) Activities which bring an area into
farming. sllviculture or ranching use are
not part of an established operation. An
operation ceases to be established when
the area in which It was conducted has
bean converted to another use o has
lain idle so long that tnodiflcatioI to
• the hydrological regime are necessary to
resume operation. If an activity takes
place outside the waters of the United
States, or if it does not involve a
discharge, It does not need a Section 404
permit whether or not it was part of an
established farming. silviculture or
ranching operation.
(2) Maintenance. including emergency
reconstruction of recently damaged
• parts, of currently serviceable structures
such as dikes, dams, levees, groins,
nprap breakwaters. causeways, bridge
abutments or approaches. and
transpc. ta lion structures M rntc ’r.anr ‘
does n t include ary modification thdt
changr’s the character, scope. or size of
the original fill design Emergency
reconstruction must occur within a
reasonable period of time after da nage
occurs in order to qualify for this
exemption
(3) Construction or maintenance of
farm or stock ponds or irrigation ditches
or the maintenance (but not
construction) of drainage ditches
Discharge associated with siphons.
pumps. headgales. ingwalls. wiers
diveri iun structures, and such other
facilities as are appurtenant and
functIonally related to irrigation ditches
are included in this e ’cemption.
(4( Construction of temporary
sedimentation basins on a construction
site which does not include placement of
fill material into waters of the United
States. The term “construction site”
refers to any site involving the erection
of buildings, roads, and other discrete
rtnictures and the installation of support
facilities necessary for construction and
utilization of such structures. The term
also includes any other land areas
which involve land-disturbing
excavation activities, induding
quarrying or other mining activitIes
where an increase in the runoff of
sediment is controlled through the use of
temporary sedimentation basins
(5) Any activity with respect to which
a State has an approved program under
Section 208(b)(4) of the Act which meets
the requirements of Section 208(b)(4)(B)
and(C).
(6) Construction or maintenance of
farm roads, forest roads, or temporary
roads for moving mining equipment,
where such roads are constructed and
maintained in accordance with best
management practices (BMPs) to assure
that flow and circulation patterns and
chemical and biological characteristics
of waters of the United States are not
impaired, that the reach of the waters of
the United States is not reduced, and
that any adverse effect on the aquatic
environment will be otherwise
minimized. The BMPs which must be
applied to satisfy this provision include
the following baseline provisions:
(i) Permanent roads .(for farming or -
forestry activities), temporary access
roads (for mining, forestry, or farm
purposes) and skid trails (for loggIng) in
waters of the United States shall be held
to the minimum feasible number, width.
and total length consistent with-the
purpose of specific farming, sliviculiural
or mining operations, and local
topographic andcllmatlc conditions;
(Ii) All roads, temporary or
permanent, shall be located sufficiently
far fror, strea’r.s or other v. ,iter bodies
fc\C017i for portons of such roads i hich
must cross i .ier bodies) to minrnt e
discharges cf dredged or fill matcri.il
into haters of the United States.
(ii ’) The road fiU shall be bridged
cuR erted or otherwise designed to
present the restriction cf expected fluiod
fiot%s,
(i%) The fill shall be propcrl3
stabilized and matntained to prc ent
erucion daring and following
construction.
(v) Discharges of dredged or f 1 11
material into isaters of the United States
to construct a road fill shall be ‘made in
a manner that minimizes the
encroachment of trucks, Iraclois.
bulldozers, or other heavy equipment
c ithin the waters of the United Stales
(including adjacent wetlands) that lie
outside the lateral boundaries of the fill
itself.
(ii) In designing. constructing, and
maintaining roads, vegetative
disturbance in the waters of the United
States shall be kept to a minimum;
( ‘u) The design. construction and
maintenance of the road crossing shall
not disrupt the migration or other
movement of those species of aquatic
life inhabiting the water body
(viii) Borrow material shall be taken
from upland sources whenever feasible;
(ix) The discharge shall not take, or
jeopardize the continued existence of, a
threatened or endangered species as
defined under the Endangered Species
Act, or adversely modify or destroy the
critical habitat of such species:
(x) Discharges into breeding and
nesting areas for migratory waterfowl.
spawning areas, arid wetlands shall be
avoided if practical alternatives exist;
(xi) The discharge shall not be located
in the proximity of a public water supply
intake:
(xii) The discharge shall not occur in
areas of concentrated shellfish
product ioni
(xiii) The discharge shall not occur in
a component of the National Wild and
Scenic River Systeni;
(xiv) The discharge of material shall
consist of suitable material free from
toxic pollutants in toxic amounts; and
(xv) All temporary Ulls shall be
removed In their entirety and the area -
restored to its original elevation.
(d) For purpoae of paragraph (c)(1) of
this section, cultlvatin& harves ting.
minor drainage, plowing, and seeding
are defined as follows;
(1) Cultivating means physical - -
methods of soil treatment employed
within established fanning. ranching
and silviciilture lands on farm, ranch, or
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20776
forest crops to aid and improve their
growth, quality, or yield.
(2) Harvesting means physical
n easures employed directly upon farm,
forest, or ranch crops within established
agricultural and silvicultural lands to
bring about their removal from farm.
forest, or ranch land, but does not
include the construction of farm, forest.
or ranch roads.
(3)(i) Minor drainage means:
(A) The discharge of dredged or fill
material incidental to connecting upland
drainage facilities to waters of the
United States, adequate to effect the
removal of excess soil moisture from
upland croplands. Construction and
maintenance of upland (dryland)
facilities, such as ditching and tiling,
incidental to the planting, cultivating,
protecting, or harvesting of crops,
involve no discharge of dredged or fill
material into waters of the United
States, and as such never require a
Section 404 pernilt
(B) The discharge of dredged or fill
material for the purpose of installing
ditching or other water control facilities
incidental to planting, cultivating,
protecting, or harvesting of nce,
cranberries or other wetland crop
species, where these activities and the
discharge occur in waters of the United
States which are in established use for
such agricultural and silvicultural
wetland crop production:
(C) The discharge of dredged or fill
material for the purpose of manipulating
the water levels of. or regulating the
flow or distribution of water within,
existing impoundments which have been
constructed in accordance with
applicable requirements of the Act, and
which are In established use for the
production or rice, cranberries, or other
wetland crop species.
(Noie.—The provisions of paragraphs
(d)(3)(i) (B) end (C) of this section apply to
areas that are In established use exclusively
for wetland crop production as well as areas
in established use for conventional wetiand/
non-wetland crop rotation (e g. the rotations
of rice and soybeans) where such rotation
resulta in thp cyLlical or rnter mttent
tcmpoii y dewatering of such areas I
(D) Tl ’e discharge of dredged o f Il
material incidental to the emergency
removal of sandbars, gravel bars, or
other similar blodsages which are
forme,l during flood flows or other
events, where such bloLkages close or
constrict previously existing
drainagi ways a’ld. if not promptly
remo ud, would result in damage o r
loss of existing crops or would impair or
prevent the pluw:rig, seeding, hcr esting
or cultivatirg of crops on land in
e;tablished use for crop production.
Such removal does n’t include cnlar ing
or extending the dimensions of, or
changing the bottom elevations of, the
affected drainageway as it existed prior
to the formation of the blockage.
Removal must be accomplished within
one year after such blockages are
discovered in order to be eligible for
exemption.
(ii) Minor drainage in waters of the
United States is limited to drainage
within areas that are part of an
established farming or silviculture
operatiqn. It does not include drainage
associated with the inixnediate or
gradual conversion of a wetland to a
non-wetland (e.g.. wetland species to
upland species not typically adequate to
hfe in saturated soil conditions), or
conversion from one wetland use to
another (for example, ailviculture to
farming).
In addition, minor drainage does not
include the construction of any canal.
ditch, dike or other waterway or
structure which drains or otherwise
significantly modifies a stream, lake,
swamp, bog or any other wetland or
aquatic area constituting waters of the
United States. Any discharge of dredged
or fill material into the waters of the
United States incidental to the
construction of any such structure or
waterway requires a permit.
(4) Plowing means all forms of
primary tillage, including moldboard,
chisel, or wide-blade plowing. discing.
harrowing, and similar physical means
used on farm, forest or ranch land for
the breaking up, cutting, turning over, or
stirring of soil to prepare it for the
planting of crops. Plowing does not
include the redistribution of soil, rock,
sand, or other surficial materials in a
manner which changes any area of the
waters of the United States to dryland.
For example, the redistribution of
surface materials by blading, grading, or
other means to fill in wetland areas is
not plowing. Rock crushing activities
which result in the loss of natural
drainage characteristics, the reduction
of water storage and rech.irge
capabilities, or the overburden of
natural waier filtration capacities do not
constitute plowing. Plow :ng. as
desci bed above, will never tnvol ’ a
discharge ai dredged or LU matert il
(5) Seeding oiea ia the sowing of seed
.ind placement of seedlings to produce
farm, ranch, or forest crops dna iniJade,
the placement ot soil beds for seeds or
seedlings on es abhshed farm .jrd forest
lands.
(e) Federal piojects which qualify
under the criteria contained in Section
404(r) of the Act are exempt from
Section 404 permit requirements, but
may be subject to oth’r State or Fi dnr-il
requirements.
2 Au.thonty citation for Part 233
cont inues to read as follows
Authority: 33 IJ.&C . 134 .t
3. Part 233 is amended by revising
Subparts A. B, C, F.. and F and by
redesignaung Subpart D as C and the
section number is changed from “233.42”
to “233.60” and by adding a new
Subpart D to read as follows:
PART 233-404 STATE PROGRAM
REGULATIONS
Subpa4 / i—General
Sec
233.1 Purpose and scope.
2332 Definitions.
233.3 Confidentiality of information.
2334 Conflict of interest.
Subpart B—Program Approval
233 10 Elements of a program submission.
233 11 Program description.
233 12 Attorney General’s statement.
233 13 Memorandum of Agreement with
Regional Administrator.
ZiJ.i4 Memorandum of Agreement with the
Secretary
243.15 Procedures for approving State
programs.
233.16 Procedures for revision of State
programs.
Si part C—Permit Repdrem.nt,
23320 Prohibitions
23321 General permits.
233.22 Emergency permits.
233.23 Permit conditions.
Subpart D—Program Operation
233 30 Application for a permit.
23331 Coordination requirements
23332 Publ’c notice
23333 Public hearing.
23334 Making a decision on iWe permit
application.
233 35 issuance and effective date of permit
23338 Modification, suspension or
revocation of permits.
233.37 Signatures on permit applications
arid reports
233.38 Continuation of expiring permits.
Subpart E—Compiiartce Evaluation and
Enforcement
243.40 Requirements for compliance
e uluation programs.
21141 Requ ’enients for enforcement
uthority
Subpart F—Federal Oversight
211 Si) Ri’vii’w of and oh ecl’on to Stale
perm is
21151 ‘ , atver of review
234 52 Prugrai reporting.
2.33 Ii thdrawat of progri-.m approval
Subpart A—General
233 1 Purpose and scope.
(a) T ,is Pait spt’crfies the procedures
EPA wit foflow, and the criteria EPA
Fed aI Register / Vol. 53, No. 10 / Monday urie 6 . 1988 I Rules and Regulations
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itl appi in approving revicwirg. and
t iIhdrawing approuil of S utc programs
under Section 404 of the Act
(h) Except as pros ided in § 2323 ihr
State prOgr3m must regulate l
discharges of dredged or fill material
into State rvgulated waters Partial State
programs arc not appro chle under
Section 404 A State’s decision not to
assume existing Corps genera! permits
dues not constitute a part eai program
The discharges previously authoriied b
gineral permit will be regulated by State
individual permits Hcwe ’cr. in many
cases States will hick authority to
regulate actit ities on indian hinds ‘this
hick of authority does not inipair a
State’s ability to obtain full program
approval in accordance with this Part,
i e.. inability of a State to regulate
activities on Indian lands does riot
constitute a partial program The
Secretary will administer the program
on Indian lands if the State does not
have authority to regulate acti’.ities on
Indian lands.
(c) Nothing in this Part precludes a
State from adopting or enforurig
requirements which are more stringent
or from operating a program with
greater scope. than required under this
Part. Where an approved State program
has a greater scope than required by
Federal law, the additional coverage is
not part of the Federally approved
program and is not subject to Federal
oversight or enforcement.
Note.—State assumption of the Section 404
program Is limited to certain waters. 88
provided in section 404(g )(l) The Federal
program operated by the Corps of Engineers
contiflUCs to apply to the remaining waters in
the State even after program approval
Iio et’cr. this does not restrict States from
regulating discharges of dredged or fill
material into those waters over which the
Secretary retains Section 404 1 iu,sdictton.
(d) Any approved State Program shall.
at all times, be conducted in accordance
ith the requirements of the Act and of
this Part. While States may impose more
stringent requirements, they may not
impose any less stringent re uiremcfltS
for any purpose -
233.2 DefInitions. -
The definitions in Parts 230 and 232 as
well as the following definitions apply
to this Part
(a) Act means the Clean Wa!er Act
(33 U S.C. 1251 et seq.).
(b} Corps means the U.S. Army Corps
of Engineers.
(c) FWS means the U.S Fish and
Wildlife Service.
,{4) Interstate agency means an agency
of two or more States established, by or
under an agreement o compact
approved by the Congress. or any other
,igenc\ of two or more States having
subct,i’i’ a! powei s or duties ;icrtitu.Ic
to the control 01 r.olhution
(e) .\ \IFS means the f’ aticnal Marinv
I isher.es Ser ice
(fi Suite means an ’ of the 50 Statc’
the District of Cohinihia. Guam. the
(.omnio’i;seaith of Puerto Rico. the
Virgin lc!ands. American Samoa. tl 1 i’
Common sealth of tht’ Northern N1ari,in i
Isianils. end the Trust Tcrntory of the ’
Pacilic islands For purposes of this
regtL .tion. the word State also inchd’s
any trt(’rst,ite agency rcquest:ng
prograni approval or administering an
, pprovi’d program
(g) State Director (Director) means the
chief administrative officer of any State
or interstate agency operating an
appro cd program. or the delegated
representative of the Director. If
responsibility is divided among two or
more State or interstate agencies.
Director means the chief administrative
officer of the State or interstate agency
authorized to perform the particular
procedure or function to which reference
is made.
(h) State 404 program or State
program means a State program i hich
has been approved by EPA under
Section 404 of the Act to regulate the
discharge of dredged or fill material into
certain waters as defined in § 232.2(p).
§ 233-3 ConfidentialIty of Information.
(a) Any information submitted to EPA
pursuant to these regulations may be
claimed as confidential by the submitter
at the time of submittal and a final
determination as to that claim will be
made in accordance with the procedures
of 40 CFR Part 2 and paragraph (c) of
this section.
(b) Any information submttt d to the
Director may be claimed as confident i il
in accordance with State Law, subject to
paragraph’s (a) and (c) of this section
(c) Claims of confidentiality for the
following information will be denied
(1) The name and address of any
permit applicant or permittee.
(2) Effluent data,
- (3) Permit application, and
(4) Issued permit.
§ 233.4 ConflIct of Interest
Any public officer or employee who
has a direct personal or pecuniary
interest in any matter that is subject to
decision by the agency shall make
known such interest in the official
records of the agency and shall refrain
from participating in any manner in such
decision.
Subpart B—program Approval
233 10 Elements of a program
submission
An Stale that se( ks to administer a
404 program under this Part shall submit
to ila’ Regional Administrator at least
tl,rcc copiis of tho foilo ing
( i’ A kitci fiom the Governor (if the
State r(’(;uesting program approval
( ii) A complete progriim description.
as set forth in § 233 11
(c) An Attorney General’s statement.
,i set forth in § 23312
Id) A Memorandum of Agreement
v.ith the Regional Administrator, as set
forth in § 233.13
(e) A Memoiandum of Agreement
tth the Secretary. as set forth in
§ 233 14
(f) Copies of all applicable State
statutes and regulations. Including those
governing applicable State
administrative procedures.
§ 233.11 Program description.
‘Ilie program description as rect uired
under § 233.10 shall Include:
(a) A description of the scope and
structure of the State’s program. The
description should include extent of
State’s jurisdiction, scope of activities
regulated. anticipated coordination,
scope of permit exemptions if any. and
permit review criteria;
(b) A description of t e State’s
permitting. administrative, judicial
review, and other applicable
procedures;
(c) A description of the basic
organization and sthicture of the State
agency (agencies) which will have
responsibility for administering the
program. If more than one State agency
is respOnSll)le for the administration of
lie program. the description shall
address the responsibilities of each
agency and how the agencies intend to
coordinate administration and
evaluation of the program;
(d) A description of the funding and
manpower which will be available for
program administration;
(e) An estimate of the anticipated
workload. e.g.. number of discharges.
(I) Copies of permit application forms.
permit forms. and reporting forms;
(g) A description of the State’s
compliance evaluation and enforcement
programs, including a description o!how
the State will coordinate its enforcement
strategy with that of the Corps and EPA:
(h) A description of the waters of the
United States within a State over which
the State assumes jurisdiction under.the
approved program: a description of the
waters of the United States within a
State over which the Secretary retains
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20778
junsdiction subsequent to program
approval, and a comparison of the State
and Federal definitions of wetlands.
Note.—States should obtain from the
Secretary an identification of those waters of
the US. within the State over which the
Corps retains authority under Section 404(g)
of the Act.
(i) A description of the specific best
management practices proposed to be
used to satisfy the exemption provisions
of Section 404(f)(1)(E) of the Act for
construction or maintenance of farm
roads, forest roads, or temporary roads
for moving mining equipment.
233.12 Attorney General’s statement.
(a) Any State that seeks to administer
a program under this Part shall submit a
statement from the State Attorney
General br the attorney for those Stite
or interstate agencies which have
independence legal counsel), that the
laws and regulations of the State. or an
interstate compact, provide adequate
authority to carry out the program and
meet the applicable requirements of this
Part. This statement shall cite specific
statutes and administrative regulations
which are lawfully adopted at the time
the statement Is signed and which shall
be fully effective by the time the
program is approved, and, where
appropriate, judicial decisions which
demonstrate adequate authority. The
attorney signing the statement reqwred
by this section must have authority to
represent the State agency in court on
all matters pertaining to the State
program.
(b) If a State seeks approval of a
program covering activities on indian
lands, the statement shall contain an
analysis of the States authority over
such activities.
(c) The State Attorney General’s
statement shall contain a legal analysis
of the effect of State law regarding the
prohibition on taking private property
without just compensation on the
successful implementation of the States
program
(d) In those State6 wheic more than
one agency has resDonsibitity fur
admiaistpririg the State progra 1 ’ , the
ctai. ’mcnt n-ust indude erttfication that
each agency has full cu’hority to
administer the progra n within its
rategoiy of ;urisdi i :on and that the
St 1te. as a whola, has fu!l autho:.ty to
adnzn’ster a complete State S ct’r,n 404
program
§ 233.13 Memorandum of Ae,,eement with
Regional Administrator.
(a) Any State that see 1 s to adrrnnister
a program under this Part shail submit a
M ‘morandurn of Agreement executed by
th. 1 J rer’or aod the R ’gtonal
Administrator. The Memorandum of
Agreement shall become effective upon
approval of the State program. When
more than one agency within a State has
responsibility for administering the
State program, Directors of each of the
responsible State agencies shall be
parties to the Memorandum of
Agreement.
(b) .The Memorandum of Agreement
shall set out the State and Federal
responsibilities for program
administration and enforcement, These
shall include, but not be limited to:
(1) Provisions specifying classes and
categories of permit applications for
which EPA will waive Federal review
(as specifIed in 233.51).
(2) Provisions specifying the frequency
and content of reports, documents and
other information which the State may
be required to submit to EPA In addition
to the annual report, as well as a
provision establishing the submission
date for the annual report. The State
shall also allow EPA routinely to review
State records, reports and files relevant
to the administration and enforcement
of the approved program.
(3) Provisions addressing EPA and
State roles and coordination with
respect to compliance monitoring and
enforcement activities,
(4) Provisions addressing modification
of the Memorandum of Agreement.
§ 23314 Memorandum of Agreement with
ths Secretary.
(a) Before a State program is approved
under this Part, the Director shall enter
into a Memorandum of Agreement with
the Secretary. When more than one
agency within a State has responsibility
for administering the State program,
Directors of each of the responsible
agencies shall be parties of the
Memorandum of Agreement.
(b) The Memorandum of Agreement
shall includa
(1) A description of waters of the
Linit. d Stat,,s w:zhin the State o’:er
which the S”cretary retains jtinsdu twn,
as identiftod by the Secretary
(.t, i ’ rnc Ju wh r ’by the Sec’ret.iry
t tIt t on Dro rain approval, transf ’r to
the State perid r 404 permit
.ipplt( ‘t’0n3 or drsLndr3es ,n
regul.iwti waers and other rele nt
iot already :n the
j ’ossesa:on of the Dtrpt,tcjr
a Stoip p t ’rtnh’ pn,..i”m
in ,.iuies cc er..i a of ‘hose tradit onaity
rd.i4 iWe wj ’ ’r in t h ,ch only the SPc-Ptary
m-y liso.. Section 404 permits, the Stain is
P ii OUFd d to e tohjiia in trtS MO,
ptociduies for o ft pro csiiiig of F . .d.’. .1
m d Si •t pe”m .c. inrl’.Jir, n1t pibli.:
11011. ‘3 and p c h”ar ng ’
(3) An identification of all general
permits issued by the Secretary the
terms and conditions of which the State
intends to administer and enforce Upon
receiving approval of its program, and a
plan for transferring responsibility for
these general permits to the States
including procedures for the prompt
transrni sion from the Secretary to the
Director of relevant information not
already in the possession of the
Director, including support files for
perm4 Jsuance, compliance reports anti
records ,f enforcement actions.
§ 233.15 Procedures for approving State
program..
(a) The 120 day statutory review
period shall commence on the date of
receipt of a complete State program
submission a set out in 233.10 of this
Part. EPA shall determine whether the
submission is complete within 3&days
of receipt of the submission and shall
notify the State of its determination, If
EPA finds that a State’s submission is
incomplete, the statutory review period
shall not begin until all the necessary
information is received by EPA.
(b) If EPA determines the State
significantly changes its submission
during the review period, the statutory
review period shall begin again upon the
receipt of a revised submission.
(c) The State and EPA may extend the
statutory review period by agreement
(d) Within 10 days of receipt of a
complete State Section 404 program
submission, the Regional Administrator
shall provide copies of the State’s
submission to the Corps, FWS. and
NMFS (both Headquarters and
appropriate Regional organizations.)
(e) After determining that a State
program submission is complete, the
Regional Administrator shall publish
notice of the State’s application in the
Federal Resister and in enough of the
laigast newspapers in the State to
attract statewide attention. The
Regional Administrator shall also mail
nnti,e to pa o”s known to be interested
in su” i rn,ittr’-s E\ striq state. FPA,
Co ps F’AiS. ird N’ .IFS n ’tail’ng iist
chat! be used dS a ba is for this mailing
I-Iowe er, fa.iLre t mail all such notice”
sh ,i t l not bn r ,nds for in’.a!idating
.ipprnvot ‘; dica oroval) of art
oth ‘r tse acc’ptable for una’ captablel
.1 ‘n ‘1 hi io ,ce sh ,ilI:
(1) Pros d, for a ,)n’,rnnit p ’ riod of
not ‘e.i ‘hin 15 dat ’s !‘tnag which
t,itere,,toj rn’ rnbers of the public rtay
exprF’s tbnir e’vs on toe State
pro3rarr
(2) F i itl for a ptJ l 1 c heartr within
pt. ” St.i t 0 hi’ h d not 25s than ill
Federa)’RegThter / VoL 53 No. 108 / Monday. June 8 1988 / Rules and Regulations
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Federdl Register I Vol 53. No 109 I Monday June b 1938 1 Rules und Regulations
20779
du alter notice o }-e ring is published
in the Federal Register
(3) Irdicate t here and hen the
State’s subm ssion may be reviewed by
the public
(4) Indicate v hcn an in’erest°d
member of the pub c with ques .ons
shouid contact a d
(5) Driefl out’:”e the fi rdarncitai
aspects of the St?’e $ proposed program
and the process for EPA rev;ew and
decision
(1) Within 90 da s of EPA’s receipt of
a complete program submission, the
Corps. FWS. and NMFS shall submit to
EPA any comments on the State’s
program
(g) Within 120 days of receipt of a
complete program submission (unless an
extension is agreed to by the State). the
Regional Administrator shall approve or
disapprove the program based on
whether the State’s program fulfills the
requirements of this Part and the Act.
taking into consideration all comments
received. The Regional Administrator
shall prepare a responsiveness summary
of significant comments received and his
response to these comments. The
Regional Administrator shall respond
individually to comments received from
the Corps. FWS. and NMFS.
(h) If the Regional Administrator
approves the State’s Section 404
program. he shall notify the State and
the Secretary of the decision and
publish notice in the Federal Register.
Transfer of the program to the State
shall not be considered effective until
such notice appears in the Federal
Register. The Secretary shall suspend
the issuance by the Corps of Section 404
permits in State regulated waters on
such effective date.
(i) if the Regional Administrator
disapproves the State’s program based
on the State not meeting the
requirements of the Act and this Part.
the Regional Administrator shall notify
the State of the reasons for the
disapproval and of any revisions or
modifications to the State’s program
which are necessary to obtain approval.
If the State resubmits a program
submission remedying the identifle
problem areas, the approval procedure
and statutory review period shall begin
upon receipt of the revised submission.
§ 233.16 Procedures tar revision of State
programs.
(a) The State shall keep the Regional
Administrator fully informed of any
proposed or actual changes to the
State’s statutory or regulatory authority
or any other modifications which are
significant to administration of the
program.
(b) Any approved program ‘ hich
requires revision because of a
modification to this Part or to any other
applicable Federal statute or regulation
shall be revised within one year of the
date of promulgation of such regulation
except thdt if a State must amend or
enact a statute in order to make the
required revision, the revision shall take
place within two years
(c) States with approved programs
shall notify the Regional Administrator
whene er they propose to transfer all or
part of any program from the approved
State agency to any other State agency
The new agency is not authorized to
administer the program until approved
by the Regional Administrator under
paragraph (d) of this section
(d) Approval of revision of a State
program shall be accomplished as
follows:
(1) The Director shall submit a
modified program description or other
documents which the Regional
Administrator determines to be
necessary to evaluate whether the
program complies with the requirements
of the Act and this Part..
(2) Notice of approval of program
changes which are not substantial
revisions may be given by letter from
• the Regional Administrator to the
Governor or his designee.
(3) Whenever the Regional
Administrator deterjTiines that the
proposed revision is substantial, he sh8ll
publish and circulate notice to those
persons known to be interested In such
matters, provide opportunity for a public
hearing, and consult with the Corps.
FWS. and NMFS. The Regional
Administrator shall approve or
disapprove program revisionaimsed on
whether the program fulfills the
requirements of the Act and this Part.
and shall publish notice of his decision
in the Federal Register. For purposes of
this paragraph, substantial revisions
include, but are not limited to, revisions
that affect the area of jurisdiction, scope
of activities regulated. criteria for
review of permits. public participation.
or enforcement capability.
(4) Substantial program changes shall
become effective upon approval by the
Regional Administrator and publication
of notice in the Federal Register.
(e) Whenever the Regional
Administrator has reason to believe that
circumstances have changed with
respect to a State’s program. he may
request and the State shall provide a
supplemental Attorney General’s
statement, program description, or such
other documents or information as are
necessary to evaluate the program’s
compliance with the requirements of the
Act and this Part
Subpart C—permit Requirements
§ 233 2G ProhibitiOnS
No permit shall be issued by the
Director in the loliowing circumstance”
(a) When permit does not comply with
the requirements of the Act or
regulations thereunder. including the
Section 404(b)(I) Guidelines (Part 230 of
this Chapter)
(b) When the Regional Administrator
has objected to issuance of the permit
under § 233 50 and the objection has not
been resolved
(c) ti hen the proposed discharges
would be in an area which has been
prohibited. withdrawn. or denied as a
disposal site by the Administrator under
Section 404(c) of the Act, or when the
discharge would fail to comply with a
restriction imposed thereunder.
(d) if the Secretary determines, after
consultation with the Secretary of the
Department in which the Coast Guard is
operating. that anchorage and
navigation of any of the navigable
waters would be substantially Impaired
§ 23321 General permits.
(a) Under Section 404(h)(5) of the Act,
States may. after program approval.
administer and enforce general permits
previously issued by the Secretary in
State regulated waters.
Note: if States intend to assume existing
general permits, they must be able to ensure
compliance with existing permit conditions
an any reporting monitoring. or
prenotification requirements
(b) The Director may issue a general
permit for categories of similar activities
if he determines that the regulated
activities will cause only minimal
adverse environmental effects when
performed separately and will have only
minimal cumulative adverse effects on
the environment- Any general permit
issued shall be in compliance with the
Section 404(b)(1) Guidelines.
(c) In addition to the conditions
specified in § 233.23, each general
permit shall contain:
(1) A specific description of the
type(s) of activities which are
authorized. including limitations for any
single operation. The description shall
be detailed enough to ensure that the
requirements of paragraph (b) of this
section are met. (This paragraph
supercedes § 23323(c)(1) for general
permits.)
(2) A precise description of the
geographic area %o which the general
permit applies. including limitations on
the type(s) of water where operations
may be conducted sufficient %o ensure
that the reqwremeflts of paragraph (b) of
this section are met.
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Federal Register I Vol 53. No. 108 I Monday, June 6, 1988 / Rules and Regulatrons
(d) Predischarge notification or other
reporting requirements may be required
by the Director on a permit-by-permit
basis as appropriate to ensure that the
general permit will comply with the
reqoirement (section 404(e) of the Act)
that the regulated activities will cause
only minimal adverse environmental
effects when performed separately and
will have only minimal cumulative
adverse effects on the environment.
(e) The Director may, without
revoking the general permit, require any
person authorized under a general
permit to apply for an individual permit.
This discretionary authority will be
based on concerns for the aquatic
environment including compliance with
paragfaph (b) of this section and the
404(b)(1) Guidelines (40 CFR Part 230.)
(1) This provision in no way affects
the legality of activities undertaken
pursuant to the general permit prior to
notification by the Director of such
requirement.
(2) Once the Drector notifies the
discharger of Ins decision to exercise
discretionary authority to require an
individual permit, the discharger’s
activity is no longer authorized by the
general permit.
§ 233.22 Emergency permIts.
(a) Notwithstanding any other
provision of this Part, the Director may
issue a temporary emergency permit for
a discharge of dredged or fill material if
unacceptable harm to life or severe loss
of physical property is likely to occur
before a permit could be issued or
modified under procedures normally
required.
(b) Emergency permits shall
Incorporate, to the extent possible and
not inconsistent with the emergency
situation, all applicable requirements of
§ 233.23.
(1) Any emergency permit shall be
limited to the duration of time (typically
no more than 90 days) required to
complete the authorized emergency
action.
(2) The emergency permit shalt have a
condition requiring appropriate
restoration of the site
(c) The emergency permit may he
terminated at any time without process
( 233 36) if the Director determines that
termination is necessary to protect
human health or the environment.
(d) The Director shall consult in an
expeditious manner, such as by
telephone, with the Regional
Administrator, the Corps. FWS. dnd
NMFS about issuance of an emergency
permit.
(e) The emergency permit may be oral
or written If oral, it must be followed
within 5 days by a written emergency
permit. A copy of the written permit
shall be sent to the Regional
Administrator.
(f) Notice of the emergency permit
shall be published and public comments
solicited in accocdance with § 233.32 as
soon as possible but no later than 10
days after the issuance date.
§ 233.23 PermIt conditions.
(a) For each permit the Director shall
establish conditions which assure
compliance with all applicable statutory
and regulatory requirements, Including
the 404(b)(1) Guidelines, apphcable
Section 303 water quality standards, and
applicable Section 307 effluent
standards and prohibitions.
(b) Section 404 permits shall be
effective for a fixed term not to exceed 5
years.
(c) Each 404 permit shall include
conditions meeting or implementing the
following requirements.
(1) A specific identification and
complete description of the authorized
activity including name and address of
permittee, location and purpose of
discharge, type and quantity of material
to be discharged. (This subsection is not
applicable to general permits).
(2) Only the activities specifically
de8crlbed in the permit are authorized.
(3) The permittee shall comply with all
conditions of the permit even if that
requires halting or reducing the
permitted activity to maintain
compliance. Any permit violation
constitutes a violation of the Act as well
as of State statute and/or regulation.
(4) The permittee shall take all
reasonable steps to minimize or prevent
any discha’rge in violation of this permit.
(5) The permittee shall inform the
Director of any expected or known
actual noncompliance.
(8) The permittee shall provide such
information to the Director, as the
Director requests, to determine
compliance status, or whether cause
exists for permit modification.
revocation or termination.
(7) Monitoring, reporting and
recordkeeping requirements as needed
to safeguard the aquatic environment.
(Such requirements will be determined
on a case-by-case basis, but at a
minimum shall include monitoring and
reporting of any expected leachatcs,
reporting of noncompliance, planned
changes or transfer of the permit
(8) inspection and entry. The
permittee shall allow the Director, or his
authorized representative, upon
presentation of proper identification, at
reasonable times to:
(i) Enter upon the permittee’s premises
where a regulated activity is located or
where records must be kept under the’
conditions of the permit, -
(ii) Have access to and copy any
records that must be kept under the
conditions of the permit.
(iii) Inspect operations regulated or
required under the permit, and
(iv) Sample or monitor, for the
purposes of assuring permit conipliance
or as otherwise authorized by the Act,
any substances or parameters at any
location.
(9) Conditions assuring that the
disch *e will be conducted in a meaner
which alinimizes adverse impacts upon
the physical, chemical and biological
integrity of the waters of the United
States, such as requirements for
restoration or mitigation.
Subpart D—Prcgram Operation
§ 233.30 Apphcatlon for a permit.
(a) Except when an activity is
authorized by a general permit issued
pursuant to § 233 21 or is exempt from
the requirements to obtain a permit
under § 232.3. any person who proposes
to discharge dredged or fill material into
State regulated waters shall complete.
sign and submit a permit application to
the Director. Persons proposing to
discharge dredged or fill material under
the authorization of a general permit
must comply with any reporting
requirements of the general permit,
(b) A complete application shall
include:
(1) Name, address, telephone number
of the applicant and name(s) and
address(es) of adjoining property
owners.
(2) A complete description of the
proposed activity including necessary
drawings, sketches or plans sufficient
for public notice (the applicant is not
generally expected to submit detailed
engineering plans and specifications);
the location, purpose and intended use
of the proposed activity scheduling of
the activity, the location and dimensions
of adjacent structures: and a list of
authorizations required by other
Federal. interstate, State or local
agencies for the work, including all
approvals received or denials already
made
(3) The application must include a
description of the type, composition.
source and quantity of the material to be
d l5cliarged. the method of discharge.
and the site and plans for disposal of’ the
dredged or fill material.
(4) A certification that all information
contained in the application is true and
accurate and acknowledging awareness
of penalties for subrnittir.g false
information
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2P”Bl
(5) All activities which the .ipplicant
planS to undertal’e whch are
reasonab t v related to the same project
sitould be included in the same perm’t
application
(c) In addition to the inforrnatior
ndicated in § 233 30(b). the appltcant
will be required to furnish such
additional information as the Dtrerto
deems appropriate to assist in the
evaluation of the application Such
additional information may include
environmental data and information on
alternate methods and sites as may be
necessary for the preparation of the
required environmental documentation
(d) The level of detail shall be
reasonably commensurate with the type
and size of discharge. proximity to
critical areas, likelihood of lang-lived
toxic chemical substances. and potential
level of environmental degradation
Note. EPA encourages States to provide
permit applicants guidance regarding the
level of detail of information and
documentation required under this
subsection. This guidance can be provided
either through the application form or on an
individual basis EPA also encourages the
State to maintain a program to inform
potential applicants for permits of the
requirements of the State program and of the
iteps required to obtain permits for activities
in State regulated waters
233.31 CoordinatIon requirements.
(a) 11 a proposed discharge may affect
the biological, chemical, or physical
integrity of the waters of any State{s)
other than the State in which the
discharge occurs, the Director shall
provide an opportunity for such State(s)
to submit written comments within the
public comment period and to suggest
permit conditions. If these
recommendations are not accepted by
the Director, he shall notify the affected
State and the Regional Administrator
prior to permit issuance in writing of his
failure to accept these
recommendations. together with his
reasons for so doing The Regional
Administrator shall then have the time
provided for in § 233.50(d) to comment
upon, object to, or make
recommendations.
(b) State Section 404 permits sh Lbe
coordinated with Federal and Fedeihl-
State water related planning and review
processes.
233.32 PublIc notice.
(a) Applicability.
(1) The Director shall gisw public
notice of the following actions:
(i) Receipt of a permit application.
(ii) Preparation of a draft general
permit.
(iii) Consideration of a major
modification to an Issued permit.
(is) Scheduling of a public hearing
(v) Issuance of ar emergency perm’t
(2) Public notices rna ’ describe mon
than one permit or action
(b) Timing
(1) The public notice shall provide a
reasonable period of time normally at
least 30 days. within which interested
portics may express their views
concerning the permit application
(2) Public notice of a public hearing
shall be gi eIi at least 30 days before the
hearing
(3) The Regional Administrator may
approve a program with shorter public
notice timing if the Regional
Administrator determines that sufficient
public notice is provided for
(c) The Director shall give public
notice by each of the following methods
(1) By mailing a copy of the notice to
the following persons (any person
otherwise entitled to receive notice
under this paragraph may waive his
rights to receive notice for any classes
or categories of permits)
(i) The applicant.
(ii) Any agency with jurisdiction over
the activity or the disposal site, whether
or not the agency issues a permit.
(iii) Owners of property adjoining the
property where the regulated activity
will occur.
(iv) All persons who have specifically
requested copies of public notices. (The
Director may update the mailing list
from time to time by requesting wrItten
indication of continued Interest from
those listed. The Director may delete
from the list the name of any person
who fails to respond to such a request)
(v) Any State whose waters may be
affected by the proposed discharge.
(2) In addition, by providing notice in
at least one other way (such as
advertisement in a newspaper of
sufficient circulation) reasonably
calculated to cover the area affected by
the activity.
(d) All public notices shall contain at
least the following information
(1) The name and address of the
applicant and, If different, the address
or location of the activity(ies) regulated
by the permit.
(2) The name, address, and telephone
number of a person to contact for further
information.
(3) A brief description of the comment
procedures and procedures to request a
public hearing. including deadlines.
(4) A brief description of the proposed
activity. it8 purpose and intended use,
so as to provide sufficient information
concerning the nature of the activity to
generate meaningful comments,
including a description of the type of
structures. if any, to be erected on fills,
and a description of the type.
composition drd quantity of matc ials to
be discharged
V A plan and elevation dra ing
shots np the general and specific site
location and character of all proposed
activities, including the size relationship
of the proposed structures to the size of
the impacted waterway and depth of
water in the area
(6) A paragraph desciiliing the tarious
evaluation factors, including the
404( 1 4( 1) Guidelines or State -equivalent
criteria on which decisions are based
(7) Any other information which
would significantly assist interested
parties in evaluating the likely impact of
the proposed acttvity.
(e) Notice of public hearing shall also
contain the following information
(1) Time, date. and place of hearing
(2) Reference to the date of any
pre ious public notices relating to the
permit
(3) Brief description of the nature and
purpose of the hearing
§ 233.33 PubliC hearing.
(a) Any interested person may request
a public hearing during the public
comment period as specified in § 233.32
Requests shall be in writing and shall
state the nature of the issues proposed
to be raised at the hearing.
(b) The Director shall hold a public
hearing whenever Ite det,ermines there is
a significant degree of public interest in
a permit application or a draft general
permit. He may also hold a hearing. at
his discretion. whenever he determines
a hearing may be useful to a decision on
the permit application.
(c) At a hearing. any person may
submit oral or written statements or
data concerning the permit application
or draft general permit. The public
comment period shall automatically be
extended to the close of any public
hearing under this section The presiding
officer may also extend the comment
period at the hearing.
(d) All public hearings shall be
reported verbatim. Copies of the record
of proceedings may be purchased by
any person from the Director or the
reporter of such hearing A copy of the
transcript (or if none is prepared. a tape
of the proceedings) shall be made
available for public Inspection at an
appropriate State office.
§ 233.34 Maltinga decision on the permIt
applIcation.
(a) The Director will review all
applications for compliance with the
404(b)(1) Guidelines and/or equivalent
State environmental criteria as well as
any other applicable State laws or
regulations.
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Federal Register / Vol 53. No 108 / Monday , June 6, 1988 / Rules and Regulations
(b) The Director shall consider all
comments received in response to the
public notice, and public hearing if a
hearing is held. All comments, as well as
the record of any public hearing, shall
be made part of the official record on
the application.
(c) After the Director has completed
his review of the application and
consideration of comments, the Director
will determine, in accordance with the
record and all applicable regulations,
whether or not the permit should be
issued. No permit shall be issued by the
Director under the circumstances
described in § 233.20. The Director shall
prepare a written determination on each
application outlining his decision and
rationale for his decision. The
determination shall be dated, signed and
included in the official record prior to
final action on the application. The
official record shall be open to the
public.
§ 233.35 issuance and effective date of
permit.
(a) If the Regional Administrator
comments on a permit application or
draft general permit under § 233.50. the
Director shall follow the procedures
specified in that section in issuing the
permit.
(b) If the Regional Administrator does
not comment on a petmit application or
draft general permit, the Director shall
make a final permit decision after the
close of the public comment period and
shall notify the applicant.
(1) If the decision is to Issue a permit,
the permit becomes effective when It is
signed by the Director and the applicant.
(2) lIthe decision is to deny the
permit, the Director will notify the
applicant In writing of the reason(s) for
denial.
§ 233.36 ModIfication, suspension or
revoca ,on of permits,
(a) General The Diret.tor may
reevaluate the circumstances and
conditions of a permit either on his own
motion or at the request of the permittee
or of a third party and initiate action to
modify, suspend, or revoke a permit if
he determines that sufficient cause
exists Among the factois to be
considered are
(1) Permittees noncompliance with
ally of the terms or conditions of the
permit.
(2) Permittees failure in the
application or during the permit
issuance process to disclose fully all
relevant facts or the permittee s
misrepresentation of any relevant facts
at the time.
(3) Information that activities
authorized by a general permit are
having more than minimal individual or
cumulative-adverse effect on the
elivironment, or that the permitted
activities are more appropriately
regulated by individual permits;
(4) Circumstances relating to the
authorized activity have changed since
the permit was issued and justify
changed permit conditions or temporary
or permanent cessation of any discharge
controlled by the permit
(5) Any significant information
relating to the activity authorized by the
permit if such informatibri was not
available at the time the permit was
issued and would have justified the
Imposition of different permit conditions
or denial at the time of issuance;
(6) Revisions to applicable statutory
or regulatory authority, including toxic
effluent standards or prohibitions or
water quality standards.
(b) L,rn,tat,ons. Permit modifications
shall be in compliance with § 233 20.
(c) Procedures. (1) The Director shall
develop procedures to modify, suspend
or revoke permits if he determines cause
exists for such action ( 233.36(a)). Such
procedures shall provide opportunity for
public comment ( 233.32), coordination
with the Federal review agencies
( 233.50). and opportunity for public
hearing ( 233.33) following notification
of the permittee. When permit
modification Is proposed, only the
conditions subject to modification need
be reopened.
(2) Minor modification of permits The
Director may, upon the consent of the
permittee, use abbreviated procedures
to modify a permit to make the following
corrections or allowance for changes in
the permitted activity:
(I) Correct typographical errors,
(ii) Require more frequent monitoring
or reporting by permittee;
(iii) Allow for a change in ownership
or operational control of a project or
activity where the Director determines
that no other change in the permit is
necessary. provided that a written
agreement containing a specific date for
transfer of permit responsibility,
coverage, and !iability between the
current and new permittee hds been
submitted to the D’rector,
(iv) Provide for minor modfiratio’i of
prole t plans that do not significantly
change the character, scope. and/or
purpose of the project or result in
significant change in erv :ronriertil
impact,
(vi Extend the term of a poimit, so
long as the modification does not extend
the term of the perm t beyond 5 years
from its original effective date and does
not result in any increase in the amount
of dredged or fill material allowed to be
discharged
§ 23337 Signatures on permit appiIcatf
and reports.
The application and any required
reports must be signed by the person
who desires to undertake the proposecj
activity or by that person’s duly
authorized agent if accompanied by a
statement by that person designating the
agent. in either case, the signature of the
applicant or the agent will be
understood to be an affirmation that he
possesses or represents the person who
possejses the requisite property interest
to un rtake the activity proposed in the
application.
§ 233.38 ContInuation of expiring permit,.
A Corps 404 permit does not continue
in force beyond Its expiration date
under Federal law if, at that time, a
State is the permitting authority. States
authorized to administer the 404
Program may continue Corps or State-
issued permits until the effective date of
the new permits, if State law allows.
Otherwise, the discharge is being
conducted without a permit from the
time of expiration of the old permit to
the effective date of a new State-issued
permit, if any.
Subpart E—.Compllance Evaluation
and Enforcement
§ 233.40 RequIrements for compliance
evaluation programs.
(a) In order to abate violations of the
permit program, the State shall maintain
a program designed to identify persons
subject to regulation who have failed to
obtain a permit or to comply with permit
conditions.
(b) The Director and State officers
engaged in compliance evaluation, upon
presentation of proper identification,
shall have authority to enter any site or
premises subject to regulation or in
which records relevant to program
operation are kept in order to copy any
records, Inspect, monitor or otherwise
investigate compliance with the State
program
(c) The State program shall provide
for inspections to be conducted, samples
to be taken and other information to be
gathered in a manner that will produce
evidence adinssible in an enforcement
proceeding
Id) The State sha t l r.iainta,n a program
for receiv n and ensuring proper
con,ideration of information submitted
by the public about violations
§ 233 41 RequIrements for enforcement
authortiy.
(a) Any State agency admintstering a
program shall have autnority
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FederLi Kegister / Vol .53 No it ’Ll I Moidci Jin t; i ii :t . Rules rind Re ulatiOt1S
20783
(1) To resi in mmeddtcl and
effectively an person from erg . ging in
ar\ unauthor :zed nctii. ty.
(2) To sue to enjoin or’s threatened u’-
c(.r’inuing viO lion of any program
requirement.
131 To assess or sue tu recover cit II
penalties and to seek ri.ni ’ml remcdics
as follows
(i) The agency sha .l h ,ite the authocit
to assess or recover civil penalties for
discharges of drecigee or fill nlateridl
without a required permit or in viol,tii n
of an Section 404 oerm.t condition in
an amount of at (east S5 000 per day of
such violation
(ii) The agency shall have the
authority to seek criminal fines against
any person who willfully or with
cr.minal negligence discharges dredged
or fill material t ithout a required permit
or violates any permit condition issued
under Section 404 in the amount of at
least $10,000 per day of such violation
(iii) The agency shall have the
authority to seek criminal fines against
any person who knowingly makes false
statements. representation, or
certification in any application, record.
report. plan. or other document filed or
required to be maintained under the Act.
these regulations or the approved State
program. or who falsifies, tampers with.
or knowingly renders inaccurate any
monitoring device or method required to
be maintained under the permit, in an
amount of at least $5000 for each
instance of violation.
(b)(1) The approved maximum civil
penalty or criminal fine shall be
assessable for each violation and, if the
violation is continuous, shall be
assessable in that maximum amount for
each day of violation.
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (a)(3) of this section.
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must bear when it brings an action
under the Act. -
(c) The civil penalty assessed. sought.
or agreed upon by the Director under
paragraph (a)(3) of this section sh ll be
appropriate to the violation. k, ,.
Note.—To the extent that State judgments or
settlemeftts provide penalties in amounts
which EPA believes to be substantially
inadequate In comparison to the amounts
- which EPA would require under etmifar facts
EPA may, when authorized by Section 309 of
the Act, commence separate action for
penaittes
(d)(1) 1’he Regional Administrator
may approve a State-program where the
State lacks authority to recover
penalties of the levels required under
paragraphs (a)(3)(l)—(iii) of this section
o’Iy if the Rcgiondl Administrator
deierniineS after evaluati’ig a rerord of
at least one year for an altern,ttite
enforcement program. that the State has
an alternate demonstrably effective
method of ensuring compliance which
has both punitive and deterrence effe,is
(2) States whose programs were
approved tia waiver of monetdry
penalties shall keep the Regional
Adininistriittu informed of all
enforcement actions taken under dfly
alternative method approved pursuant
to paragraph (o)(i) of this section. The
manner of reporting ttilt be established
in the Memorandum of Agreemen’ v.ith
the Regional Administrator ( 233 1:,)
(e) Any State administering a program
shall provide for public participation in
the State enforcement process by
providing either
(1) Authority which allows
intervention of right in any civil or
administrative action to obtain remedies
specified in paragraph (a)(3) of this
section by any citizen having an interest
which is or may be adversely affected.
or
(2) Assurance that the State agency or
enforcement authonty will:
(t) Investigate and provide written
responses to all citizen complaints
submitted pursuant to State procedures:
(ii) Not oppose intervention by any
citizen when permissive tntervention
may be authorized by statute. rule, or
regulation: and
(iii) Publish notice of and provide at
least 30 days for public comment on any
proposed settlement of a State
enforcement action.
Subpart F—Federal Oversight
233.50 RevIew of and objection to State
permits. -
(a) The Director shall promptly
transmit to the Regiori8l Administrator
(1) A copy of the public notice for any
complete permit applications received
by the D irector. except those for which
permit review has been waived under
§ 233.51, The State shall supply-the
Regional Administrator with copies of
pubhc notices for permit applications for
which permit review has been waived
whenever requested by EPA.
(2) A copy of a draft general permit
whenever the State intends to issue a
general permit. -
(3) Notice of every significant action
taken by the State agency related to the
consideration of any permit applioation
except those for which Federal-review -
has been waived or draft general permit.
(4) A copy of every Issued permit.
(5) A copy of the Director’s response
to another State’s comments/ -
recommendations, if the Director does
not accept these recommendatiOns
( 23’t 32(a))
liii Urlecs re ic-w has been waited
under § 233 51. the Regional
Administrator shall protide a copy of
each public nct ce. each draft general
permit and other information needed for
review of the application to the Corps.
FWS and NMFS within 10 days of
receipt These agencies shall notify the
Regional Administrator within 45 days
of their receipt if they wish to comment
on the public notice or draft general
permit Such agencies should submit
their evaluation ar’d comments to the
Regional Administri ”or within 50 days
of such receipt. The final decision to
comment. object or to require permit
conditions shall be made by the
Regional Administrator, (These times
may be shortened.by mutual agreement
of the affected Federal agencies and the
State.)
(c) If the information provided is
inadequate to determine whether the
permit application or draft general
permit meets The requirements of the
Act, these regulations, and the 404(b)(1J
Guidelines, the Regional Administrator
may, within 30 days of receipt. request
the Director to transmit to the Regional
Administrator the complete record of
the permit proceedings before the State.
or any portions of the record, or other
information, including a supplemental
application, that the Regional
Administrator determines necessary for
review,
- (d) If the Regional Administrator
intends to comment upon. object to. or
make recommendations with respect to
a permit application. draft general
permit, or the Director’s failure to accept
the recommendations of an affected
State submitted pursuant to § 233.31(a).
he shall notify the Director of his intent
within 30 days of receipt. If the Director
has been so notified. the permit shall not
be issued until after the receipt of such
commetits or 90 days of the Regional
Administrator’s receipt of the public
notice, draft general permit or Director’s
response ( 233.31(a)), whichever comes
first. The Regional Administrator may
notify the Director wIthin 30 days of
receipt that there Is no comment but that
he reserves the right to object wIthin 90
days of receipt. based on any new
information brought out by the public
during the comment period or at a
hearing . -
- (e) If the Regional Administrator has
given notice to the Director under ‘ -
paragraph (d) of this 5ectlon, he shall
submit-to the Director, wt’.hin 90 days of
receipt of the tiblic notlöé:’draft general
permit. or Director’s tespónse
( 233.31(a)), a written etgtement of his
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20784 Federal, Register I Vol. 3, No. 108 L Mo lay . June 8. 1988./ Rules and Reguletions
Comments, objections or
recomJ,atjm, the reasons for the
comments, objections, or
reconiTnendations; and the actions that
must be taken by the Director in order to
etiminate any objections. Any such
objection shall be based on the Regional
Administrator’s determination that the
proposed permit is (fl the subject of an
interstate dispute under § 233 .3Ual and/
or (2) outside requirements of the Act.
these regulations, or the 404(b )(1J
Guidelines. The Regional Administrator
shall make avaflable’gpon request a
copy of any cominepi. objection. or
recommendation on a permit application
or draft general permit to the permit
applicant or to the peblic.
(f) When the Director has received an
EPA objection or requirement for a
permit condition to a permit apphcatfon
or draft general permit under this
section, he shalt not issue the permit
unless he has taken the steps required
by the Regional Administrator to
eliminate the objection.
(g} Within 90 days of receipt by the
Director of an objection or requirement
for a permit condition by the Regional
Administrator, the State or any
interested person may request that the
Regional Administrator hold a public
hearing on the objection orreqwrement
The Regional Administrator shalt’
conduct a public hearing whenever
requested by the State proposing to
issue the permit or if warranted by
significant public Interest based on
requests received.
(h) If a public hearing is held under
paragraph fg) of this section, the
Regional Administrator shaH. following
that hearing reaffirm, odif j or
withdraw the obfectfori or requirement
for a permit condition, and notify the
Director of this decision.
(1) If the Regional Administrator
withdraws his objection or requirement
for a permit condition, the Director may
ue the perthit.
(27 If the Regional Administrator dues
not withdraw the object’on or
requirement for a permit condition, the
Director must issue a permit rr ’ ised to
satisfy the Regional Administrator’s
objci two oi• requirement for a penrit
condition or notify EPA of its i’ eii to
deny the permit within 3Oda s of
rec , ’ipt of the R gionHl Administrator’s
notification. /
(i) If ro public heaiinç is held unih’r
palagrapo (g) of this section. the
Director within 90 days of recept of ib.’
objection orrequrrement fora peimit
condition shall e’ther issue the permit
revised to satisfy EPA’s objections or
notify E A of its intent to deny the
permit
(ii In the event that the Director
neither sat±sf’ies EPA’ s ob ectioa& o
requirement for a penmt condition nor
denies the permit, the Secretary shall
process the permit application.
f 233.51 Waiv of review.
(a) The MOA with the Regional
Administrator shall specil ’y the
categories of discharge for which EPA
will waive Federal review of State
permit applications. After program
approval, the MOA may be modified to
reflect any additions or deletions of
categories of discharge for which EPA
will waive review. The Regional
Administrator shall consult with the
Corps, FWS, and NMFS prior to
specifying or modifying such categones.
(b) Wrth the Following e’ceptions, any
category of discharge is eligible for
consideration for waiver.
(1) Draft general permits;
(2) Discharges with reasonable
potential for affecting endangered or
threatened species as dete.rrnined by
FWS;
(3) Discharges with reasonable
potential for adverse impacts on waters
of another State;
(4) Discharges known or suspected to
contain toxic pollutants in toxic
amounts (Section 1O1(a )(31 of the Act) or
hazardous substances in reportable
quantities (Section 311 of the Act7
(57 Discharge, located in proximity of
a public water supply intake:
(6) Discharges within critical areas
established under State or Federal law,
including but not limited to National and
State parks, fish and wildlife
sanctuaries and refuges, National and
historical monuments. wilderness areas
and preserves, sites identified or
proposed under the National Historic
Preservation Act, and components of the
National Wild and Scenic Rivers
System.
(c) The Region ,ul Administrator retains
the right to k’rininate a waiver as to
future persia actions at any time by
sending the Director wntten notice of
termination.
233.52 Program reportng
(-i) The startieg dale for the annu il
pci - od to he cir.’ered by reports shall h’
es’abh ,,hed in the Mernoranilum of
Agreiment with the Regional
Adm ni ;rat.ir (I 233 13
(b The Director shall submit to th.
Regional Administrator within 90 de s
after completion of the annual per od, a
draft annual report ei aluating the
State’s admir.istraticn of its progiam
identifying problems the State has
encountered in the administration of it
program and rei ommend.ations for
resol ing these ,roblerna. Items that
shall be at dressed in the annual report
include an assessment of the camsJahve
impacts of the State’s permit program o
the integrity of the S’ate regulated
waters, identificationof areas of
particular concern and/or interest
wtthm the State; the nember and nat,
of indivuinal and general permits imeed
modified, and denied; number-of
violations identified and number and
nature of enforcement actions taken
number of suspected unauthorized
activities reported and nature of action
takçp; an estimate of extent of activities
re a ted by genera) permits; and the
number of permit applications recefy d
but not yet processed.
(c) The State shall make the draft
annual report available for public
inspection.
(d) Within 6tY days of receipt of the
draft annual report, the Regional
Administrator will complete review of
the draft report and transmit comments,
questions, and/or requests for
additional evaluation and/or
information to the Director.
(e) Within 30 days of receipt of the
Regional Administrator’s comments, the
Director wilt finalize the annuai report,
incorporating andf or responding to the
Regional Administrator’s comments, and
transmit the fInal report to the Regional
Administrator,
(I) Upon acceptance of the annual
report, the Regional Administrator shall
publish notice of availability of the final
annual report
§ 233.53 WIthdrawal of program approval.
(a) A State with a program approved
under this Part may voluntarily transfer
program responsibilities required by
Federal law to the Secretary by taking
the f&lowing actions, or in such other
manner as may be agreed upon w:th the
Administrator.
(1) The State shall give the
Administrator and the Secretary 18(1
days notice of the proposed transfer.
The State shall also subriut a plan for
the orderly transfer of all reIe ant
program uiforma Lion riot in the
possession of the Secretary (such as
peimits, permit f es , reports, pcrre.t
appicat.ons) hich are necessjry i ’ )r
the Secretary to administer the pro r.im
(2l ,‘ .thtn 60 days of r cei ing the
notice dnd transfer plan, the
Adniimstrator and the Secietary shall
gvulu tp the State’s transfer otari md
shall identify for the State any
addttonal into ’mation needed by the
Federal goverrl ’ent for program
admimsti -ation.
( ‘ 3)At least 30 days before the tron frr
is to occur the Admmistra’or shall
publish notice, of transf’ r in the Federal
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Federal i c ister / Vol 53. !\u lOs I Mu:vJu , line 6 1 b8 / F/utes and Regulations
20765
Register and in a ulficient nunber of
the largest ne spapc ’rs in thc State to
pro ide st cw:d, co erage. and shall
ni id notice to all pe mH holders permit
applicants, other regulated persons and
other interested persons en appropriate
EPA. Corps and Stale zno lirg lists
(hI The Administrator may isithdr.isv
program uppro iil vshen a State program
no longer complTes with the
requirements of this Part, and th State
fails to take corrective actiun Such
circumstances include the following
(1) When the State s legal authority no
lunger meets the requirements of this
Part, mcluding’
(i) Failure of the Stale to promulgate
or enact new authorities v . hen
necessary, or
(ii) Action by a State legislature or
courl striking down or limiting State
authorities
(2) When the operation of the State
program Ia ’lls to comply with the
requIrements of this Part, including
(i) Failure to exercise control over
activities required to be regulated under
this Part, including failure to issue
permits;
(u) Issuance of permits which do not
conform to the requirements of this Part.
or
(iii) Failure to comply with the public
participation requirements of this Part.
(3) When the State’s enforcement
pro ram fails to comply with the
requirements of this Part. Including’
(i) Failure to act on %iolations of
permits or other program requirements:
(ii) Failure to seek adequate
enforcement penalties or to collect
admrnisirative fines when imposed, or
to Implement alternative enforcement
methods approved b the Administrator;
or
(iii) Failure to inspect and monitor
actIvities subject to regulation.
(4) When the Stale program fails to
comply with the terms of the
Memorandum of Agreement required
under § 233.13
(c) The following procedures apply
when the Administrator orders the
commencement of proceedings to
determine whether to withdraw
approval of a State progranu #l
(1) Order. The Administrator may
order the commencement of withdrawal
proceedings on the Administrator’s
initiative or in response to a petition
from an interested person alleging
failure of the State to comply with the
requirements of this Part as set forth in
subsection (b) of this section. The
Administrator shall respond In writing
to any petitIon to commence withdrawal
proceedings. He may conduct an
in.forrnal revlew of the allegatIons In the
petitlon to determine whether cause
C\lStS to comnmenLe proceedings und r
this paragraph The Administrator’s
order comiiencing proceedings under
thts paragraph shall fi a time and pLce
fur the commencement of the hearing,
shall specify the allegations against the
State which are to be considered at the
hearing, and shall be published in the
Federal Register Vt’ thin 30 day8 after
ublicn1ion of the Administrator’s order
in the Federal Register. the State shall
admit or deny these allegations in a
ritten answer
1 he party seeking withdrawal of the
Stale’s program shall have the burden of
coming forward with the evidence in a
hearing under this paragraph
(2) De inllions For purposes of this
paragraph the definition of
“Administrat ve Law Judge.” “I leering
Clerk.” and “Presiding Officer” in 40
CFR 22 03 apply in addition to the
following.
(i) “Party” means the petitioner, the
State. the Agency. and any other person
whose request to participate as a party
is granted.
(ii) “Person” means the Agency. the
State and any indivIdual or organization
having an interest in the subject mutter
of the proceedings.
(iii) “Petitioner” means any person
whose petition for commencement of
withdrawal proceedings has been
granted by the Administrator.
(3) Procedures,
(i) The following provisions of 40 CFR
Part 22 (Consolidated Rules of Practice)
are applicable to proceedings under this
paragraph:
(A) Section 22 02—(use of number/
gender);
(B) Section 22.04—.{aulhori ties of
Presiding Officer);
IC) Section 2206— .(fihngf service of
rulings and orders):
(0) Section 22.09—f examination of
filed documents),
(E) Section 22.19 (a), (b) and (c)—
(prehearing conference):
(F) Section 22,22—4evidence),
(G) Section 22 23—4objections/offers
of proof ).
(U) Section 22.25—(filing the
transcript.’ and
(1) Section Z2.26—(ftndzngs/
conclusions).
(ii) The following provisions are also
app licable
(A) Computation and extension of
tune.
(1) Computation. In computing any
period-of time prescribed or allowed in
these rules of pra thce, except as
otherwise provided, the day of The event
from which the designated period begins
to run shall riot be included. Saturdays,
Sundays. and Federal legal holidays
shall be included. When a stated time
expires on a Saturda’.. Sunday or
Feilcr,il legal holida. the stated time
piiiud snail be extended to include the
rIC\i business day
(2) E’.tcns,ors of lime The
Administrator. Regional Administrator,
or Presiding Officer, as appropriate. may
grdnt an extens;on of time for the filing
of an pleading. document, or motion (1)
upon tiricly motion of a part;’ to the
proc ceding. for good cause shown and
after consideration of prejudice to other
parties, or (a) upon h s own motion.
Such a motion by a party may only be
made after notice to all other parties.
unless the movant can show good cause
why ser ing notice is impracticable. The
motion shall be filed in advance of the
d tc on which the pleading, document or
motion is due to be filed, unless the
failure of a party to make timely motion
for exten8Iofl of time was the result of
excusable neglect
(f,) The time for commencement of the
hearIng shall not be extended beyond
the date set In the Administrator’s order
without approval of the Administrator,
(0) Ex parte discussion of proceeding.
At no time after the issuance of the
order commencing proceedings shall the
Administrator. Regional Administrator.
Isidicial Officer, Regional Judicial
Officer. Presiding Officer, or any other
person nho is likely to advise these
officials in the decisions on the case.
discuss ex parte the merits of the
proceeding with any interested person
outside the Agency, with any Agency
staff member who performs a
prosecutorial or investigative function in
such proceeding or a factually related
proceeding, or with any representative
of such person. Any ex pafle
memorandum or other communication
addressed to the Administrator,
Regional Administrator, Judicial Officer.
Regional Judicial Officer, or the
Presiding Officer during the pendency of
the proceeding and relating to the merits
thereof, by or on behalf of any party
shall be regarded as argwnenl made in
the proceeding and shall be served upon
all other parties. The other parties shall
be given an opportunity to reply to such
memorandum or communication,
(C) Intervention.
(2) Mellon. A motion for leave to
intervene in any proceeding conducted’
under these rules of practice must set
forth the grounds for the proposed-..- -
intervention, the position and interest of
the movant and the Likely impact that
intervention will have on the
expeditious progress of the proceeding.
, -Any person already a party to the
proc.eeduig may file an answer to a
motion to intervene. maldng specific
reference to .the factors et forth fir the -
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2O
Federah Register / VoL No. 1O / Monday , June 6 19 / Ru1es and Regulations
foregoing sentence and paragraph
(b)3Xn C 3}ofth j , within ten
(10) day, afte, service ol ’tbe motion for
leave to mtervene.
(2) Howeve,; motions to intervene
m tefdedwith5daysfr j
date the notice of the AdmimstratoVs
order is published in the Federal
Register.
(3) D1 pos1tion. Leave to Intervene
may be granted only if the movant
demonstrates that (iJ his presence in the
proceeding would not unduly prolong or
otherwise prejudice the adjudication of
the rights of the original parties (d) the
movant will be adversely affected by a
final cede,; and (fiT) the interests of the
movant are not being adequately
represented by the original parties. The
intervenor shall become a full party- to
the proceeding upon the granting of
leave to intervene.
(4) Amicus curiae. Persons not parties
to the proceeding who wish to file brief’s
may so move. The motion shall Identify
the Interest of the applicant and shalt
state the reasons why the proposed
amicus brief Is desirable. If the motion is
granted, the Presiding Officer or
Admfnistratorshafl Issue an order
setting the time for filing such brief. An
ainlcue curiae is eligible to participate in
any briefing after his motion Is granted.
and shalt be served with all briefs, repty
briefs, motions. and orders relating to
issues to be briefed.
(1)) MotIons. (17 General. All motions,
except those made orally on the record
during a hearing, shall (17 be in wnuingr
(ii) state the grounds therefore with
perffcularIty (iii ) sef forth the relief or
order soaght and (iv) be accompanied
by any affidavft certificate, other
evidence, or legal memorandum relied
upon. Such motions shall be served as
provided by paragraph (bfl4J of’ this
section
(2) R. sponse to motions. A pdrly’s
response to any written motion must be
filed within ten (10) day, after service of
such motion, unless additional time is
allowed for such response. The response
shall be accompanied by any affida .it,
certificate, other evidence, or leg .t)
memorandum relied upon. If no
r sponse is filed within the desig”ated
puriod, the paities may be deemed to
have w .uved any objection to the
granting of the motion. 1 he Presiding
Officer, Regional Admimsira tor, or
Administrator, as appropliate, may set a
shorter time for response. or make si th
other orders concern:ng the dispoSltiofl
of motons as they deem approprIate.
(3 Dec,aion. The Athinnistrator shall
rule cm aff motions filed or made after
service of the recommended decision
upon the parties. The Presiding Officer
shall rule on all other motions. Oral
argument on motions will be permitted
where the Presiding Officer. Regional
Adxmnistrator or the Athninistratoi
consider, it necessary or desirable.
(4) Re dofprvceedingg. (17 The
hearing shall be efiher stenographically
reported verbatim or tape recorded, and
thereupon transcribed by an official
reporter designated by the Presiding
Office,;
(ii) All orders Issued by the Presiding
Officer, transcripts of testimony, written
statements of position. stipulations,
exhibits, motions, briefs, and other
written material of any kind submitted
in the hearipg shall be a part of the
record and shall be available for
inspection or copying In the Office of the
Hearing Clerk, upon payment of costs.
Inquiries may be made at the Office of
the Adinimstrathe Law Judges, Hearing
Clerk, 401 M Street SW.. Washington,
DC2o46O
(rn) Upon notice to all parties the
PPesiding Officer may authorize
corrections to the transcript which
involve matters of snbstance
(iv) An original and two (2) copies of
all written submissions to the hearing
shall be filed with the Hearing Clerk
(v) A copy of each such submission
shall be served by the person making
the submission upon the Presiding
Officer and each party of record. Service
under this paragraph shall take place by
mail or personal delivery;
(vi) Every submission Shalt be
accompanied by acknowledgement of
service by the person served or proof of
service in the form of a statement of the
date, time, and manner of service and
the names of the persons sersed,
certified by the person who made
service: and
(vii) The hearing Clerk shall maintain
and furnish to any person upon request,
a list containing the name. service
address, and telephone number of ill
partipq and their att.rni’ys or du(y
.nIthor’7 d reprPsent.itives.
(5) Purtu-ipotion by a perso z not a
pufly A person who is not a party ni iy.
iii the di’.crc;ion of the Pres :ding Ofircer.
he permitted to make a l.mited
appearanLe by making an oial oi
wiitten statement of his/her position on
the issues within such hmirs and on
such conditions as may be fried h the
Presiding Officer, but hefshe may note
otherwise participate In the proceeding
(67 Rights of parties. fi) All parties to
the proceeding may:
(A) Appear by counseh or other’
representative in all hearing and
prehearing proceedings
(B7 Agree to stipulations of facts
which shall be made a part of the
record.
(7) Recommended decision. (I) WithIn
30 days after the filing of proposed
findings and conclusions and reply
brier he PresIding Officer shall
evaluate the record before hhnIher the
proposed findings and conclusions and
any briefs filed by the parties, and shall
prepare a recommended decision, and
shall certify the entire record. including
the recommended decision, to the
Administrator,
(uJ Copies of the recommended
decision shall be served upon all parties.
(iii) Within 20 days after the
certification and filing of the record a nd
recommended decision, all parties may
file with the Administrator exceptions to
the recommended decision and a
supporting brief.
(8) Decision by Administrago,s (I )
Within 80 days after certification of the
record and filing of the Presiding
Officer’s recommended decision, the
Administrator shall review the record
before him and issue his own decision.
(ii ) if the Administrator concludes that
the State has administered the program
in conformity with the Act and this Part.
his decision shall constitute “final
agency action” within the meaning of 5
USC 704.
(iii) If the Administrator concludes
that the State has not administered the
program in conformity with the Act and
regulations, he shall list the deficiencies
in the program and provide the State a
reasonable time, not to exceed 90 days,
to take such appropriate corrective
action as the Administrator determines
necessary.
(iv) Withrn the time prescribed by the
Adm nis!rator the State shall take such
.lpprupriate coirective action as
required by the Administrator and shall
fi’e with the Administrator and all
parties a statement certified by the State
Dircitor that appropriate corrective
action has been taken.
(v) The Administrator may require a
krtiier show.ng in addition to the
certified statm ’rn nt that corrective at’tIon
l’as been taken
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7 rs
Federal Resister I Vfl 53 \o 103 / MonU .’ juni i 1°ti8/Ru!es and Regulations
(vi) If the t.i.ic fo s t o take
appropriate corrcct\C action a
c’rtificd sta’emerit thereof v ithin the
ti’1 e prescriued by the Adm’: stutor
the Adm ivstrdtor shall issue a
s pplcmentary order ii}-dta ir.g
approval of tht St (e program If the
State takes appropriate correcti.e
action, the Administrator shall issue a
supplementary order slatii’g t t
approval of authority is not withdrawn
(vu) The Administrator’s
supplementary order shall constitute
fin.ul Agency action within the nwar.ing
of5US 704
(d) ‘Mthdrat al of authorization under
this s cticn and the Act does not relieve
any person from complying with the
requirements of State law, nor does it
affect the validity of actions taken by
the State prior to withdrawal.
- IFR Doc. 88-12032 Filed 6-3-88 845 am
BSWNO COOC 6560-50-14
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111-3
Department of Defense - Corps of Engineers
Environmental Protection Agency
58 FR 45008 - Clean Water Act Regulatory Programs
(Tulloch Rule)
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Q
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s. 7
- 45008 Federal Register / Vol. 58 .
DEPARTMENT OF DEFENSE
Department of the Army
Corps of Engineers
33 CFR Parts 323 and 328
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 110,112,116,117.122,
230,232 and 401
Clean Water Act Regulatory Programs
AGENCIES: U.S. Army Corps of
Engineers, Department of the Army.
DOD; and Environmental Protection
Agency.
ACTiON: Final rule.
SUMMARY: The U.S. Army Corps of
Engineers (Corps) and the
Environmental Protection Agency (EPA)
are issuing today final regulations that
implement the following actions with
regard to the Clean Water Act (CWA)
Section 404 regulatory program: (1)
Modification of the definition of
“discharge of dredged material;” (2)
clarification of when the placement of
pilings is a discharge of fill material;
and (3) codificatIon of the current policy
that prior converted croplands are not
waters of the United States. EPA is also
issuing con forming changes to the
definition of “waters of the United
States” and “navigable waters” in other
CWA program regulations. The first two
changes implement the settlement
agreement in North Carolina Wildlife
Federation v. Tulloch, Civil No. C90-
713-UV-5-BO (E.D.NC. 1992).
EFFECTIVE DATE: This rule becomes
effective on (Insert 30 days from the
publication in the Federal Register).
FOR FURTHER INFORMATION CONTACT:
Mr. Michael Davis, Office of the
Assistant Secretary of the Army for Civil
Works at (703) 695—1376 or Mr. Sam
Collinson (Corps) at (202) 272—0199 or
Mr. Gregory Peck (EPA) or Ms. Hazel
Groman (EPA) at (202) 260-7799.
SUPPLEMENTARY INFORMATION:
I. Background
On February 28, 1992, the Federal
government agreed to settle $ lawsuit
brought by the North Carolina Wildlife
Federation and the National Wildlife
Federation (North Carolina Wildlife
Federation, at a!. v. Tulloch, Civil No.
C90-713-CIV-5-BO (E.D.N.C. 1992))
involving CWA Section 404 as it
pertains to certain activities in waters of
the United States. In accordance with
the settlement agreement. the Corps and
-EPA proposed changes to their
regulations on June 16. 1992 to clarify
that mechanized landclearing. ditching.
channelization. and other excavation
activities involve discharges of dredged
material when performed in waters of
the United States, and that these
activities would be regulated under
SectIon 404 of the CWA when they have
or would have the effect of destroying
or degrading waters of the United States,
including wetlands. 57 FR 26894. In
addition, the Corps end EPA agreed to
propose to incorporate into the Section
404 regulations the substantive
provisions of Corps Regulatory
Guidance Letter (RGL) 90—8 to clarify
the circumstances under which the
placement of pilings have the effect of
“fill material” and is subject to
regulation under Section 404. The
agencies stated that the proposal would
not affect, in any manner, the existing
statutory exemptions for normal
fanning, ranching, and silviculture
activities in Section 404(fl(1).
In addition to the changes proposed
in accordance with the settlement
agreement. the Corps and EPA proposed
to incorporate into the Section 404
regulations the substantive provisions of
Corps RGL 90—7 to clarify that prior
converted croplands are not waters of
the United States for purposes of the
CWA. EPA also proposed conforming
changes to the definitions of “waters of
the United States” and “navigable
waters” for all other CWA program
regulations contained in 40 R parts
110,112,116,117, 122, and 401 to
provide consistent definitions In all
CWA program regulations.
Overall, these changes were proposed
in order to promote national
consistency, more clearly notify the
public of regulatory requirements,
ensure that the SectIon 404 regulatory
program Is more equitable to the
regulated public, enhance the protection
of waters of the United States, and
clarify which areas In agricultural crop
production would not be regulated as
waters of the United States.
The proposed changes were published
in the Federal Register on June 16,
1992, for public comment. The
comment period closed on August 17,
1992. We received over 6,300
comments. The significant Issues raised
by public comments and the changes
that have been made from the proposed
rule are discussed below.
IL General Cnmm nts the Proposed
Rule
Several commentors raised general
issues with regard to the proposed rule.
These comments are addressed first -
below. Comments relating to the
specific components of the rule are
addressed in the following sections of
this preamble.
Several commentors expressed
concern that the agencies had agreed to
propose these revisions as part of a
settlement agreement with plaintiffs m
the Tulloch lawsuit. These commentors
felt that this procedural posture for the
rulemaking impaired the agencies’
ability to conduct the rulemaking
impartially and based upon a good faith
consideration of all public comments, as
required by the Administrative
Procedure Act. The commitments the
agencies entered in the settlement of the
Tulloch case have not, in any way,
bound the agencies to reach a
predetermined outcome in this
rulemaking. The agencies agreed in the
settlement agreement to propose certain
revisions to their regulations in
exchange for the plaintiffs’ agreement to
stay that litigation. The settlement
agreement in no way binds the agencies
to an outcome In the final rule, but
provides that the plaintiffs In the
lawsuit will dismiss their action if the
final rule is “substantially similar” In
language and effect as the proposal. The
agencies do not view the settlement
agreement as narrowing our discretion
in any manner to adopt a final rule that
best reflects relevant legal and policy
considerations under Section 404.
Because this rulemaking is of great
national significance to the Section 404
program, EPA and the Corps have
pursued this rulemaking based upon
careful consideration of all the policy
issues raised in the proposal and
addressed by public comments. The
agencies would not adopt policies in
this final rule that we do not believe are
appropriate merely to avoid reinitiation
of litigation in the Tulloch lawsuit. As
reflected by the discussion in this
preamble, the agencies have fully
considered all the public comments
received on the proposal, and we have
therefore fully complied with the
procedural requirements of the
Administrative Procedure Act.
Several commentors recommended
that no decision on the final rule be
made until a wetland definition was
agreed upon by Congress. Two
coinmentors stated that the wetlands
definItion was too broad and that it was
not applicable across the country.
Similarly, two commentors stated that
because the rulemaking regarding the
wetlands delineation manual was not
yet complete. It was inappropriate to
propose changes that would expand
activities in wetlands covered under the
program, thereby increasing uncertainty
about the Federal government’s
regulation of wetlands. Several -
commentors wore concerned about how
No. 163 / Wednesday, August 25, 1993 / Rules and Regulations
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3’
Federal Register / Vol. 58,
No. 163 1 Wednesday. August 25. 1993 I Rules and Regulations 45009
the functions and values of wetlands
would be addressed or requested that a
wetland classification system be
developed- Some commentors requested
that no decision be made until such a
system was developed.
We do not agree that these concerns
should delay promulgation of this rule.
With the emeption of the prior
converted (PC) aopland aspect of this
plemaking. this rule addresses the
scope of activities regulated under
Section 404. The question of what
activities result In a discharge of
dredged or fill material is distinct and
separate from the issue of what areas
constitute wetlands, or how wetlands
functions and values are considered In
the permitting process Today’s rule will
enable the Corps and EPA to make
appropriate determinations as to
whether en activity occurring In waters
of the U.S. Is subject to regulation under
Section 404, however wetlands are
defined. Therefore, there is no reason to
delay this rub making pending
compI itinn of the delineation manual
rulemRldng. With regard to the PC
cropland portion of this rule, the
agencies do not believe that completion
of this riIlømAkiflg should await
conclusion of the manual rulemaking
The propoaed revisions to the
delineation manual did not alter the
policy finding In Corps RGL 90-7 that
PC aoplend Is not wetlands under the
Act. Since the applicability of Section
404 IoPC cropland is not an issue in the
delineation manual rulemAldng .
delaying completion of this rule is not
warranted. In any case. EPA and the
Corps are both currently making
wetlands delineations using the 1987
Corps Manual Corps of Engineers
Wetland Delineation Manual (Technical
Report 4-87-1. Department of the Army.
Corps of Engineers. Waterways
Experiment Station. Vicksburg. MS)We
believe that the guidance in that Manual
is entirely consistent with our statutory
and regulatory authorities under the
CWA
Several commentors requested that
the comment period be extended. We
believe that a 60-day comment period
was sulfident time to provide an
opportunity for the public comment, as
reflectedbythefactthatwehave
received over 6,300 comments on the
proposal. At least one commentor
requested that the agencies hold a
public hearing on the proposal. The
agencies have declined to do so. The
comments on the proposal addressed
many legal and factual Issues that were
presented In great detail In written
submissions, end the *gqndes have
fully considered tl e submitted
documents In developing the final rule.’
EPA and the Corps do not believe that
the opportunity for meaningful public
input or the agencies’ understanding of
public comments would have been
materially advanced by the holding of a
public hearing.
Several cominentors requested that
the Corps districts work with local
regulatory agencies to avoid duplication
of effort. We agree and encourage
districts to develop regional general
pemilts to avoid duplication of effort for
those activities with minimal impacts.
III. Revision, to Definition of
“Di ,chai e of Dredged Material 33 G ’R
323.2(d) and 40 R 232.2(e)
We have organized the numerous
comments on the definition of discharge
of dredged material into several Issues.
Our discussion of the comments Is
provided below.
A. Summor, of Ma/or Issues and
Changes From the Proposal
The aspect of the rule which
engendered the most public comment
was the proposed revisions to the
definition of “discharge of dredged
material.” Many commentois supported
the proposed revisions on the grounds
that they would better achieve the goals
of the Section 404 program. and help
ensure mole equal treatment of different
types of activities that adversely impact
wetlands.
Opponents of the changes challenged
the appropriateness of the proposed rule
on both legal end factual grounds. In
their legal arguments, many
commentora contended that the
proposal constituted a change in the
Corps’ longstanding approach to
regulating landcleanng and excavation
activities, and that the agencies had
failed to explain adequately the reasons
for changing the existing appruach, as
required by the Administrative
Procedure Act. Couunentors also
contended that EPA and the Corps
lacked the authority under the CWA to
regulate incidental discharges
associated with mechanized
landclearing. ditching. channelization
and other excavation on the grounds
that such Incidental discharges do not
constitute an “addition” of ’ dradged
material” to waters of the U.S. within
the meaning of the Act. These
cotnmentors also coni nded that the
proposed rule would Impermissibly
regulate ‘ activities” rather than
“discharges,” something they argued
was beyond the agencies’ )urlsdiction
under the statute. Other cnmm ntors
argued that the proposed rule’s
blishmeut of a presumption that
mei ’hAnised landclaming, ditching ,
channelizatlon and other excavation
destroy or degrade wetlands was
contrary to the requirements of the
CWA.
Factual contentions raised by
commentors cantered on objections to
the finding in the proposed rule that
mechanized landdeanng, ditching.
channelization and other excavation
always result In a discharge of dredged
material. Some commentors contended
that the agencies had failed to compile
an adequate factual record to support
this finding, and a few commeotors
discussed activities which they believed
did not result in a discharge. Some
commentors also objected to the
rebuttable presumption in the proposed
rule that medianizad landcleaziog.
diichlng. channelization and other
excavation destroy or degrade wetlands
or other waters of the United States.
Commentors suggested specific
activities that they believed should be
excluded from the regulation en the
grounds that they did not cause such
effects. Concerns were also raised in
public comments that the temi
“degrade” was not adequately defined
by the agencies.
Based upon public comments, the
agencies have made certain changes to
the language i.e the regulation defining
“discharge of dredged material.”
However, the basic thrust of the
proposal had not changed. Under the
final rule, any addition or redeposition
of dredged material associated with any
activity, Including mechanised
landclearlng , ditching. channelizatlon
and other excavation, that destroys or
degrades waters of the United States
requires a Section 404 permit.
The agencies have modified some of
the language and structure of the final
rule to improve clarity, sinoseome
public comments found the proposed
rule language hard to follow. In
response to public comments, we ha ’v
decided to include definitions of the
terms “destroy” and “degrade” in the
final rule. These changes are discussed
in section D.1, below.
In response to public comments, the
agencies have deleted the irrabuttable
presumption In the proposed rule that
all mechanized landclaaring. dilrhnig.
rhAnn jz tjon and other excavation
result in a discharge of dredged
materieL This change is discussed
further in sectinn C. below.
The agencies have modified the
structure of the final rule to provide that
any addition. lncliiAing redeposit, of
dredged material assocIated with any
activity. Including mechanized
landclearlng. 4iflrJung , e1isinni llzalioc
and other excavation., constitutes a
discharge of dredged material. The final
rule states, however, that a SectIon 404
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45010 Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 I Rules and Regulations
permit is not required for an activity
that would not destroy or degrade
waters of the U.S. because It would have
only a de immmis effect on such waters.
Under the final rule, mechanized
landclearing, ditching, channelization
and other excavation activities resulting
in a redeposition of dredged material
associated with a discharge of dredged
material require a Section 404 permIt
unless the discharger demonstrates to
the satisfaction of the Corps. or EPA as
appropriate, prior to the discharge. that
the activity will not have such an effect.
Under the final rule, the discharger
bears the burden of demonstrating that
Its mechanized landclearing. ditching.
channelization and other excavation
activity will not destroy or degrade
waters of the United States.
B Comments on Agencies’ Legal
Authority To Promulgate This
Regulation
Several commentors argued that EPA
and the Corps lack legal authority under
the Clean Water Act to issue the
proposed regulation. Each of the bases
for commentors’ assertion is addressed
below.
a. Definition of “Dredged Material”
Several commentors argued that the
term ‘dredged material” has a narrow
and specific meaning as used by
Congress In the Clean Water Act, and
that Congress never Intended Incidental
discharges associated with landclearing.
ditching. channelizatlon and other
excavation to be regulated as dredged
material under Section 404.
These commentors cited a dictionary
definition of the verb “to dredge” as
meaning “to gather and bring up with a
dredge. as oysters; to clear out or deepen
with a dredge. as a channeL” and the
definition of the noun “dredge” as “a
contrivance for gathering objects or
material from the bed of a river, lake or
harbor, by dragging along the bottom
* . “New Webster’s Dictionary of
the English Language 301 (1984).
According to these commentors,
therefore, the term “dredged material”
in Section 404 Is limited to material
taken from the bottom of a harbor, river
or channel and cannot be construed as
extending to material redeposited In the
course of activities taking place In other
waters of the United States, such as
wetlands. While these commentors
argued that the meaning of the statutory
language was so clear that recourse to
the legislative history was not
necessary, they contended that the
legislative history of the 1972
Amendments of the Clean Water Act
also supports their view,
EPA and the Corps believe that these
comments are unfounded, for several
reasons. First, these comments are In
fact not relevant to this rulemaking, for
they do not address the revisions the
agencies are making to the definition of
the term “discharge of dredged
material.” Rather, these comments
challenge, In effect, the agencies’
definition of the term “dredged
material” which includes “any material
dredged or excavated from waters of the
U.S.” (see 40 (YR 232.2(g) and 33 (YR
323.2(c)). Presumably the commentors
believe that this definition should have
been revised so that it would be limited
to material excavated from waterbodies
such as harbors, rivers and channels.
However, EPA and the Corps have not
proposed to revise this longstanding
definition In any respect In this
rulemaking, and this comment Is
therefore not relevant to the proposal on
which we solicited public comment.
Even if these comments were relevant
to this rulemaking, however, EPA and
the Corps disagree with the commentors
that the statutory term “dredged
material” was expressly limited by
Congress to mean material dredged from
the bottom of waterways such as lakes,
rivers or channels. While the “narrow”
and “specific” definition of this term
favored by these commentors appears in
the Webster’s dictionary, It Is not
contained In any provision of the Clean
Water Act. Congress therefore left to the
agencies administering Section 404 the
discretion to define this term. Since
regulations were first promulgated
Implementing Section 404, the Corps
has Interpreted the term “dredged
material” to mean any material
excavated froze waters subject to the full
jurisdictional reach of the CWA (see 39
FR 12119, April 3, 1974), and the
current language in the agencies’
definition has been in existence since
1977 (see 42 FR 37145, July 19, 1977).
This longstanding definition of the terre
“dredged material” Is a straightforward
and reasonable reading of the statutory
language used by Congress.
The coinmentore’ approach to
defining dredged material, in contrast,
would draw arbitrary distinctions In
how the CWA regulates identical types
of material based upon whether the
waterbody froze which it was excavated
met some vague standard of wetness
and water depth (i.e., material excavated
from the bottom of a “lake” would
qualify as dredged material but material
excavated from a “drier” water such as
a saturated wetland would not). Such
distinctions are without any support In
the language or structure of the CWA.
Because the commentors’ approach
does not reasonably reflect the stiucture
of the Act, their suggested reading of the
term “dredged material” would lead to
anomalous results that we believe could
not have been intended by Congress. For
example, under their scenario, material
excavated from a saturated wetland
presumably would not qualify as
“dredged material” under Section 404.
However, the disposal of that material
Into waters of the U.S. would
nonetheless require a permit under the
Act, since the material, even If not
meeting the definition of “dredged
material,” would in any case constitute
a “pollutant” within the meaning of the
Act (see section 502(6) of the Act,
defining pollutant to Include “sand”
and “rock”). The disposal of such
material, therefore, would require a
permit under Section 402 of the Act, a
regulatory provision ill-suited for
authorizing such discharges. In our
view, It Is clearly more consistent with
Congressional Intent that all material
dredged from and redeposited In waters
of the U.S. be regulated under a single
regulatory scheme—Section 404 of the
CWA. Rather than draw the arbitrary
distinctions suggested by these
commentors, the agencies’ definition of
the term Is a straightforward and logical
interpretation of the statutory language
in Section 404 that Is consistent with
the jurisdictional roach of Section 404 to
all waters of the United States.
While the legislative history of the
1972 Amendments to the Clean Water
Act reflects Congressional concern
regarding disposal of material dredged
from waterways to maintain navigation.
EPA and the Corps do not read that
legislative history as demonstrating
Congressional Intent to limit narrowly
the agencies’ discretion to define
dredged material so that It Includes any
material excavated from waters of the
U.S. The agencies’ longstanding
definition of this term is reasonable and
fully consistent with the language and
purposes of the Clean Water Act.
2. “Addition” of Pollutants to Waters of
the U.S.
Some commentors argued that the
activities that would be subject to this
regulation are beyond the scope of
Section 404 because they do not result
in the “addition” of pollutants to U.&
waters, as required by the definition of
“discharge” contained In sectIon 502(6)
of the Clean Water Act. According to
these commentors, no such “addition”
occurs when the material to be
excavated falls back Into the very same
water being dredged. An “addition”
only takes place, these commentors
believe, where material Is excavated
from one water of the U.S. and falls Into,
“another” water, “outside!’ the area
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Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations 45011
being excavated. These commentors
cited as support the decisions In
National Wildlife Federation v.
Consumers Power, 862 F.Zd 580(6th
CIr. 1988); National Wildlife Federal v.
Gorsuch, 693 F.2d 158, 174—75 (DC.
Cir. 1982): and U.S. v. Lambert, 18 Env’t
Rap C ia (BNA) 1294 (M.D.Fl. 1981),
af/ 4 d 895 F.2d 536(11th dr. 1983).
In Consumers Power and Goxsuch,
environmental groups challenged EPA’s
longstanding Interpretation of the CWA
that Impacts on water quality and fish
caused by the operation of dams were
not covered by the CWA because the
dams did not cause an “addition” of
pollutants. EPA’s longheld view was
that impacts resulting from the passage
of water through the dam did not
constitute en “addition” because
pollutants did not enter the water “from
the outside world.” See Garsuch, 693
F.2d at 165. The Consumers Power and
Gorsuch courts deferred to EPA’s
administrative interpretation of the
CWA and upheld It as reasonable.
Commentors argued that these holdings
prevent EPA and the Corps from finding
that redeposition of soil Incidental to
mechanized landclearln& ditching,
channelization and other excavation
constitutes an “addition” of pollutants.
We do not believe that the analysis of
the Gorsuch end Consumers Power
decisions Is controlling here. These
cases did not address what constitutes
an addition of dredged material to
waters of the United States. In our view,
it would not be reasonable to require
that dredged material enter waters of the
U.S. “from the outside world” since
dredged material, by definition, Is
contained In the waters themselves.
This was the conclusion of the Fifth
Circuit In Avoyeiles Sportsmen’s League
v. Marsh, 715 F.2d 897 (5th CIr. 1983).
which addressed the applicability of the
Gorsuch case to mechanized
landclearing activities. While the court
did not rule on the question whether
those activities resulted in a discharge
of dredged material (finding that a
discharge of fill material had occurred),
the court rejected the notion that
dredged material Is only regulated If It
enters waters from the “outside world.”
Since dredged material comes from the
water ltseH , the court concluded that
such an Interpretation “would
effectively remove the dredge-and.fihl
provision from the statute.” 715 F.2d at
294, n.43. See also U.S. v. Sindair Oil
Co., 767 F.Supp. 200 (D.Mont. 1990)
(distinguishing Gorsuch and Consumers
- Power cases partially on the grounds
that they were decided under the
‘separate regulatory framework” of
Section 402, end holding that - -
redistribution of rlveibed materials
constituted a “discharge” of fill
material). United States v. M of
Florida, Inc., 772 F.2d 1501 (11th dr.
1985) (holding that redeposition of
seabed materials by tug-boat propellers
on adjacent see grass beds was an
“addition” of dredged spoil).
Some commentors suggested that the
appropriate test In this context should
be whether dredged material is moved
from “one place to another” or “from
one water to another.” If the material is
not moved In this manner, these
commentors argued. It does not thgger
Section 404. The agencies do not believe
that such a vague test would be a
meRnlngful or appropriate one to adopt
In this rule. If dredged material must be
“moved” from one “location” to another
In order to trigger Section 404, the
question arises as to how far the
material must be moved. The agencies
sees strong potential for drawing
arbitrary distinctions among activities -
that may be Identical in terms of the
amount of soil redeposited and their
effects on the aquatic ecosystem. but
differ only In terms of the distance the
soil is moved. EPA end the Corps
certainly do not view such a distinction
as legally compelled by the Clean Water
Act.
Commentors also cited as support for
their position the decision of the district
court in U.S. v. Lonibert, Env’t Rep.
Cases (BNA) 1294 (M.D.FIa. 1981), off d,
695 F.2d 536(11th Clr.1983), which
held that “back-spill” of dredged
material into the area from which it was
excavated could not be considered to be
an “addition” of a pollutanl Notably,
however, the Lambert case was decided
before the Supreme Court decision in
Chevron U.S.A. v. NRDC. 467 U.S. 837
(1984), which now establishes a
deferential standard of review of agency
actions where Congress has not
specifically addressed an Issue. EPA
and the Corps do not believe that
Congress has specifically mandated in
any provision of the CWA that
redeposition of dredged material is only
regulated if it Is “moved” from one
“place” to “another.” Rather than focus
simply on the spatial relationship
between where the excavation and
redeposition occur u the deciding
factor determining regulatory
jurisdiction under Section 404. thIs rule
will regulate an activity (involving a
discharge to any part of waters of the
U.S.) taking Into account the effect of
the activity on the aquatic environment.
The agencies believe that this approach
Is entirely consistent with the language
of the CWA. and better effectuates the
environmental protection goals of the
statute than the approach suggested by
commentors. See CWA section 101(a).
3. Regulation of “Activities,” Not
“Discharges”
Many commentors argued that the
proposed rule was outside the agencies’
authority under the CWA because the
effects-based test for determining
whether an activity requires a Section
404 permIt Impermissibly regulates
“activities,” whereas the statute only
authorizes regulation of “discharges.”
These commentors also argued that If
the agencies were to adopt the proposed
rule, EPA and the Corps would be
limited by Section 404 of the CWA to
considering the environmental effects
associated with the discharge itself, not
the activity with which the discharge is
associated. Commentors cited the
decision of the district court in Reid v.
Marsh, 20 Env’t Rep. Cas. (BNA) 1337
(N.D.Ohlo 1984) as supporting this
argument.
EPA and the Corps agree with the
point made by these commentors that
the presence of a “discharge” into
waters of the U.S. Is an absolute
prerequisite to an assertion of regulatory
jurisdiction under Section 404. Based
on the clear language in section 301(a)
of the CWA, this has been the agencies’
longstanding position, and we are not
altering that view in this rulemaking.
For the reasons explained in this
preamble, the agencies believe that
addition or redeposition of dredged
material In the course of activities such
as mechanized landclearlng, ditching.
channelization and other excavation
meets the discharge requirement of
section 301(a). Because this rule will
only regulate activities where the
jurisdictional prerequisite of a
“discharge” Is present, EPA and the
Corps disagree with commentors who
argued that this rule is outside the scope
of the agencies’ authority under Section
404.
Comxnentors are therefore flatly
incorrect that this sule would trigger
Section 404 jurisdiction over a
discharge based upon the environmental
effect of the associated activity. Under
today’s rule, the presence of certain
environmental effects is not a
prerequisite for Section 404 jurisdiction;
rather, this rule looks to the
environmental effects for purposes of
oreating an exception to the Section 404
permitting requirement that would
otherwise apply to the discharge.
Consideration of such effects Is
appropriate in order to ensure that the
aeatlon of a de mimmis exception Is
consistent with the goals end objectives
of Section 404. See discussion in section
D, below. Since the agencies clearly
have the authority under Section 404 to
regulate oil discharges of dredged
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45012 Federal Regieter I Vol. 58, No. 163 -I Wednesday, August 25. 1903 I Rules and Regulations
material into watem of the United
States, without regard to effects on the
aquatic environment, we fail to see bow
our dedsion In this rulemaking to
regulate a subset of these activities
could conceivably be overstepping our
regulatory authority under Section 404.
Because the only statutory condition for
regulation under Section 404 is the
presence of a “discharge.” commentors
arguments about the scope of
envfronmentsl effects that can be
considered under Section 404 are
irrelevant to the findings that EPA and
the Corps are making to p today’s
rule.
To the extent commentora argued that
EPA and the Corps can only consider
the environmental effects of the
discharge Itself in administering Section
404 (I.e.. in the Corps’ permitting
process or EPA’s Section 404(c)
process), such comments are not
relevant to this rulemak1ng which
addresses the circumstances when a
discharge or dredged material WI !)
required a Section 404 permlt. not bow
the discharge will be addressed in the
permitting or 404(c) process. In any
case, however, EPA and the Corps wish
to clarify that consideration of the
environmental effects of activities
associated with discharges covered by
this rule is well within the agencies’
authority in carrying out their
authorities under SectIon 404. Because
the scope of th. agencies authority to
consider environmental effects is not
relevant to our authority to Issue this
rule, the following discussion Is not
provided ass legal justification of
today’s rule, but rather as an attempt to
help the public understand how we
administer the SectIon 404 program
extremely narrow
reading of the agencies’ authority Is first
belied by the language of Section 404(f)
of the Act, which was discussed In the
preamble to the pro2osed rule. Section
404(f)(1) exempts certain activities from
the requirement to obtain a Section 404
permit. Section 404(13(2), however,
requires that a permit nonetheless be
obtained for “any discharge of dredged
or fill material into the navigable waters
incidental to any activity” which has
the purpose of changing the water’s use
end the effect of impairing the water’s
flow or circulation, or reducing its
reach, Commentors a4tldzed the
citation of Section 404(13(2) in the
preamble to the proposed rule. They
argued that this provision merely
recaptUivs activities that are exempted
under Section 404(13(1), but that It does
not i pandthe underlying scope of
activities by the permit.
requfreinmit of Section 404(a). These
commantors hay, misinterpreted the
reason why the agencies cited SectIr i
404(0(2) In the preamble to the
proposal. We ee wdh the
i mmentore’ point that Section 404(0(2)
does not expand the scope of activities
subject to Section 404. However, the
agencies do not rely on Section 404(0(2)
for such a proposition. Rather, we
believe that Section 404(13(2) contradIcts
the argument that Congress Intended to
preclude EPA and the Corps from
considering under Section 404 the
effects of activities associated with
discharges of dredged or fill material,
such as mechanized landclearing.
thttthing. th nnelization and other
excavation. In Section 404(0(2),
Congress expressly required EPA and
the Corps to implement the statutory
exemptions based upon consideration of
not only the effects of the discharge
itself, but also the effects of the activity
“incidental” to the discharge. Because
Congress expressly required the
agencies to consider such effects under
Section 4040), we do not believe It
would be rui , .ionnhle to conclude that
Congress nonetheless intended to
prohibit EPA and the Corps from
otherwise considering such effects
under Section 404.
Morever, EPA’s longstanding
interpretation of Section 404. as
reflected In the Section 404(b)(1)
Guidelines, demonstrates that EPA end
the Corps are not limited to considering
solely the environmental effects of the
discharge itselL The Guidelines
expressly require consideration of
“secondary effects,” which are defined
as
effect, on m uattc emsysten that am
associated with a discharg, of dredged or fill
materials, but do act result from the actual
pi r .. .v nt of the dredged or fill materiaL
40 CFR 230.11(h). Where an activity
such as mechanized Ianddearlng,
ditching. channelization and other
excavation activities are performed in
waters of the U.S. and result In a
discharge of dredged material to those
waters, we believe that such activities
are clearly “associated with” the
discharge, WithIn the meaning of
Section 230.11(h). and therefore
considering the effects of those activities
is properly within the scope of Section
404.
Conunentors nonetheless cite the
decision in Reid v. Marsh, which
addressed the Corps’ authority to
regulate dredgingactivilles under
SectIon 404. ThIs case held that the
Corps was limited under Sactlnn 404 to
evaluating the effect of the discharge
ltself and that the Corps could not look
at the effects of the overall dredging
activity. icr the reasons nc above,
however, Reid Is simply not relevant to
this rulemaking, since the soletrigger
under this rule for asserting SectIon 404
jurisdiction is the presence of a
“discharge of dredged material,” and
the agencies therefore have clear
authority to regulate the activities
covered by today’s rule. Reid did not
address in any manner the scope of the
agencies’ authority to establish $ de
mrnimis exception under Section 404.
In any case, we do not view the Reid
decision as precluding EPA and the
Corps from consIdering the effects of
activities associated with a discharge of
dredged material In the Section 404
permitting or veto process. Notably,
Reid was decided bmoro the Supreme
Court decision in Chevron U.S.A. v.
NRDC which, as discussed previously,
now mandates that courts defer to any
reasonable agency interpretation of a
statute It administers unless Congress
has specifically spoken to the question
at Issue. The Reid opinion failed to cite
any provision of the Clean Water Act as
precluding the Corps from looking
beyond the effects of the discharge
ltselfnordld Reiddlscunatellthe
well-established administrative
Interpiotation In the Guidelines that
secondary effects must be considered In
Issuing permits under Section 404.
Since the CWA does not reflect specific
Congressional intent that EPA and the
Corps be precluded from considering
s cundary effects under Section 404. the
agencies retain broad discretion In
deciding whether such an approach Is
appropriate. EPA and the Corps believe
that considering the primary and
secondary effects ofadlschazgels
dearly consistent with the language and
Intent of Section 404 to ensure
protection of the aquatic system from
effects associated with the discharge of
dredged end fill material.
In addition, the Reid decision Is at
odds with the decision of the Tenth
Circuit in Riverside Inigoiion DL strict V.
Aodrews, 758 F.2d 508 (10th Cii ’. 1985).
in this case, the Corps denied
nationwide permit coverage for the
construction of adam, the operation of
which would have resulted In depleted
stream flows that would adversely affect
habitat of an endangered species. Even
though the discharge of fill material
itself to construct the dam would not
have had an adverse impact, the court
held that the CWA authorized the Corps
to consider the total environmental
impact of the discharge, including
Indirect effects such as the Impact of the
operation of the dam on flows -
downstream end associated wildlife
Impacts. - -
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Federal Register / Vol. 58. No. 163 / Wednesday. August 25. 1993 / Rules and Regulations 45013
Several commentors cited cases wider
section 10 of the Rivers and Harbors
Act, the National Environmental Policy
Act (NEPA). and Section 402 of the
CWA as supporting their argument that
EPA and the Corps are narrowly
constrained to evaluating the effects of
the discharge itself. For the reasons
discussed previously, these cases are
simply not on point because this rule
properly triggers Section 404
jurisdiction based upon the presence of
a “discharge of dredged material.” and
arguments about the proper scope of
environmental review under Section
404 are therefore not relevant to this
rulemaking. In any case, for the reasons
explained above, we disagree with
commentors that EPA and the Corps are
limited to considering only the direct
effects of discharges themselves in
implementing Section 404.
4. AuthorIty Limited to Regulating
Impacts on Water Quality
A few coinmentors contended that
EPA and the Corps could only consider
“degradation” of waters of the U.S. In
terms of the Impacts of an activity on
chemical water quality. Some
commentors dted for support for this
argument the decision of the Seventh
Circuit Court of Appeals in Hoffman
Homes v. EPA, 961 F.Zd 1310 (7th Cit.
1991), reh. granted and opinion vacated,
35 ENV ’T Rep. Cases (BNA) 1328(7th
Cit. Sept. 4, 1992).
EPA and the Corps believe that this
comment Is erroneous. First, the
decision In Hoffman Homes relied upon
by some ooxnmentors has since been
vacated by the Seventh Circuit. A new
opinion issued by the Court in this case
contains no support for the conunentor’s
argument that the CWA Is only intended
to address impacts of an activity on
chemical water quality (Hoffman Homes
v. EPA. No. 90—8810 (July 19, 1993)).
We believe, moreover, that there Is no
support In the CWA as a whole or In
Section 404 for the proposition that
impacts to the aquatic ecosystem under
SectIon 404 are limited to Impacts on
chemical water quality, as opposed to
Impacts on other functions such as flood
storage and wildlife habitat.
First 4 the language In SectIon 404
itself repudiates the notion that EPA
and the Corps may only evaluate
impacts of a discharge on chemical
water quality. For example. Section
404(c) authorizes EPA to deny or restrict
specification of a disposal site for
dredged or fill material If the disposal
would have en unacceptable adverse
effect on a range of aquatic system
values, including “shellfish bed and
fishery areas (Including spawning and
breeding areas)” “wildlife.” -.
“recreational areas.” These Is no
language in Section 404 indicating that
the adverse impacts to these other
aquatic functions are only remediable
under Section 404 if the impacts result
directly from impacts to chemical water
quality.
Similarly, Congress directed that the
Section 404(b)(1) Guidelines be based
upon criteria comparable to the ocean
discharge criteria contained in Section
403(c) of the Act. Section 403(c) states
that guidelines for ocean discharges
shall Include consideration of impacts
of a discharge on “marine ecosystem
diversity, productivity, end stability;
and species and community population
changes.” Again, there Is no language In
Section 403(c) limIting the
consideration of such impacts solely to
those deriving directly from changes to
chemical water quality Itself. Therefore,
the line that some commentors seek to
draw around EPA’s and the Corps’
ability to protect the aquatic
environment is simply not one that has
been drawn by Congress.
The agencies’ interpretation of
Section 404, as reflected in the Section
404(b)(1) Guidelines. realfiims their
responsibility to consider impacts of
discharges on the broader aquatic
ecosystem, and not just water quality
Itself. For example, 40 CFR 230.10(c)
prohibits any discharge of dredged or
fill material that would cause
significantly adverse effects on
ecosystem diversity, productivity and
stability such as loss of fish and wildlife
habitat. See also 40 CFR 230.32
(describing wildlife values that must be
considered In the permitting process),
40 C ’R 230,41 (describing how
discharges of dredged or fill material
may damage or destroy habitat and
adversely affect the biological
productivity of wetlands).
5. Reversal of Agency Position
Commenters argued that the proposed
rule was arbitrary because It represented
an abandonment and reversal of an
allegedly longstanding agency
interpretation of the CWA, and because
the agencies allegedly had failed to
provide an adequate explanation of the
change In policy.
In certain respects this final rule
represents a change In Corps regulations
end policy, but some commenters
seemed to overstate and exaggerate both
the extent and the “abruptness” of that
change. The Corps and EPA expect that
the net effect of this rule will be that
most projects involving mechanized
lendclearing. ditching. rhjinneljzatlon,
mining , or other excavation activity In
waters of the U.S. will require
authorization under CWA SectIon 404.
Although this new rule will regulate a
number of projects that previously
might have escaped Section 404
regulation. it is important to realize that
the Corps has been regulating many
projects involving mechanized
landclearing. ditching. channelization,
mining, or other excavation in waters of
the U.S. for years because those projects
frequently involved substantial
discharges of dredged or fill material
Into waters of the U.S. For example.
many drainage ditches In wetlands
traditionally have been dug by
sidecasting the excavated material into
the wetlands; those activities have
always been regulated under Section
404. SImilarly, many channelizatlon.
mining, and other excavation activities
In U.S. waters have been regulated
under Section 404 over the years,
because they Involved substantial
discharges through disposal or
stockpiling of the excavated material In
waters of the U.S.. or “sloppy”
excavation practices, or other
substantial discharges. As we shall
explain below, the Corps has gradually
changed its policy and practice to
Increase Out regulation of mechanized
Iandclearlng activities over a period of
years. Thus, this final rule Is not an
abrupt change In policy, Interpretation.
or practice, that would suddenly begin
to regulate all landclearlng, ditching.
channelizatlon, and other excavation
activities In U.S. waters for the first
time.
Nevertheless, this final rule does
represent both a clarification of agency
guidance and a change of agency
practice regarding . sub-class of
excavation-type activities In waters of
the U.S.: i.e., those that would take
place with relatively small-volume,
“incidental” discharges of dredged
material that unavoidably accompany
such excavation operations. Until the
Corps and EPA undertook this present
rulemaking, neither agency bad ever
promulgated written guidance explicitly
and specifically addressing the question
whether CWA Section 404 could or
should regulate ditching,
channelizatlon, mining, or comparable
excavation activities In waters of the
U.S. based solely on their Incidental
discharges of dredged material.
However, most Corps districts normaUy
followed the practice of not regulating
such activities so long as their
discharges of dredged material were
limIted to small-volume, “Incidental”
discharges.
This practice by most Corps districts
was generally consistent with -.
Informal policy of the Department oft
Army during much of the 1980s, *hlcl
narrowly construed the scope of Section
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45014 Federal Register / VoL 58 .
No. 163 / Wednesday. August 25, 1993 1 Rules and Regulations
404 jUrisdictiOn over these activities.
The practice of not regulating small,
incidental discharges was also viewed.
by many Corps districts as consistent
with the thrust of guidance dating from
the late 1970s regarding de minimis
discharges associated with normal
dredging activities. This practice led to
the adoption by the Corps In 1986 of the
current language in the definition of
“discharge of dredaed material,” which
exchides from regulation “do minimis.
Incidental soil movement occurring
during normal drudging opemtlons.” 33
CFR 323.2 (1986) (emphasis added).
This language was explained in several
parng iipha in the preamble to the Corps’
1986 rule, which some commenters who
oppose today’s rule quoted to support
their position. It states:
Secboa 404 clesriy directs the Corps to
regulate the discharge of dredged material,
not the dredging ItselL Dredgiag opemtions
cannot be performed without s failback.
However, if we were to daflos this faflbsck
u a ‘discharge of dredged material,” we
would. in effect, be adding the regulation of
diedgrng to Section 404 whIch we do net
believe was the latent of Con ’ues.
51 FR 41210 (Nov. 13,1988) (emphasis
added).
While some in the Corps (along with
some commentocs opposed to this rule)
have interpreted this language as
indicating that the Corps did not Intend
to regulate failback associated with any
activity, the Corps has never In fact
adopted written guidance clarifying the
scope of this exclusion, or defining the
term, “normal dredging activities.”
Moreover, there Is no explicit Indication
that th. language of the rule, or the
explanation statement in the preamble,
app 11 es generally to mechanized
landcleazing. ditching, rher.nsljzatjon,
or other excavation activities in the
waters of the U.& As discussed further
below, an Informal survey of Corps
districts shows that, in fact, the districts
have varied in their approach to
regulating activities involving only
incidental discharges, Indicating that
the language of the 1986 rule and
preamble was not as definitive as some
commentors have suggested.
Today’s rule therefore represents the
first time that the Corps and A have
clarified the m.enlng of th. term
“normal dredging operations.” which
we have defined as:
Dredging frr novigabon in navigebl.
waters ‘tM United b.frç as that term Is
defined In Part 329 of this chapter, wIth
per suthorizathas from Conpeas andler
the Corps *.r.u t to Put 322 ef this
a rap t e rb ,.... ..u,thls e ronpt lealan s t
app llcabl to dredging activities La iretkrndr,
as that t is tIs.fined at Section 328.3 of Ibis
Qmpter. (Emphasis .dded
By providing this definition, the
Corps and A hope to substantially
reduce the inconsistency among Corps
District offices as to scope of the do
minimis exclusion for discharges of
dredged material,
Much of the inconsistency among the
Corps district offices on this issue
resulted from the decentralized nature
of the Corps. Recognizing that
conditions and situations differ
tremendously a oss the country, the
Corps confers a large amount of
discretion upon each of its district
engineers to operate the regulatory
program In a reasonable mAnn r . Each
district engineer must therefore consider
local and regional factors in applying
national standards. This approach
enables the program to remain flexible
enough to interpret one atandjird set of
regulations so that it applies to widely
varying regional needs end
circumstances. In carrying out their
responsibilities, districts have therefore
had to interpret terms used (but not
defined) In the 1988 regulation. such as
“do mlnimis,” “incidental,” end
“normal dredging operations” In
response to specific projects, situations,
and regional needs and these
interpretations have differed somewhat
across the country.
Carps headquarters did not Intercede
to halt the adoption of these varying
interpretations so long as they did not
conflict with the plain words of the
regulations. The Corps has always
provided it. districts with the flexibility
to intvrprvt the Corps’ regulations so
that they may be reasonably applied to
varying circumstances. So long as the
districts abided by th. regulatory
language in Section 323.1(d). that
indicates that the term “discharge of
dredged material ... does not
include do mmnimLs incidental soil
movement occurring during normal
dredging operations,” districts were not
prohibited from developing their own
operating interpretations of “do
minimis,” “Incidental,” and “normal
dredging operations.”
Today’s rule aims to rectify the
ambiguity inherent in the 1988 rule’s
statements on “do minimie soil
movement” and “normal dredging
operations,” first, by mAking It clear that
the exclusion front Section 404 of
“incidental movement” of dredged
material only applies to such movement
occurring in the course of “normal
dredging operations”; all other
incidental discharges of dredged
material under this rule can be
considered a discharge of dredged
material regulated under S ’ion 404.
Second, today’s rule for the first time
defines “normal dredging operations.”
as quoted above.
As noted above, over the years Corps
district offices have developed
somewhat differing approaches to bow
they regulate the various activities that
produce incidental discharges of
dredged materiaL To sample this
diversity, the Corps conducted an
informal survey of eleven Corps district
offices. The Corps selected the districts
surveyed in order to obtain a ones-
section of likely practices among district
.ffices. The Corps did not intend.
however, for this to be a “scientific”
survey statistically representative of
practice. across the country, the Corps
simply wanted to obtain anealotal
Information regarding the range of
interpretations and practices among the
districts, In the survey the Corps found
that many districts currently regulate
some of the activities covered by this
rule, Although the Corps is not aware of
any district that regulates all the
activities subject to the rulemaking in
the same m nner that today’s rule
dictates, there are several districts that
regulate one or more of these activities
in the same manner as provided for
under this rule.
Since the issuance of the 1990 RGLon
landclearing (RGL 90—5). the districts
have been much more consistent in how
they regulate Iandclearing. In the
absence of comparable guidance on
dit,$ilng , t-hiinnellzatlon, end mining ,
the Corps districts have shown a greater
diversity In their regulation of thee.
activities. By e,remnin&ng the informal
survey rasnits on an activity-by-activity
hed ; this diversity becomes readily
apuarent.
¶rirtually all of the districts surveyed
regulate ditching activities that Involve
sidecasting. At least one of the dIstricts
surveyed regulates ditithing activities
that produce only Incidental discharge.,
These Incidental discharges were
typically in the form of drippings or
lailback from ditching m 9 y .
Another district regulates dlt hIng
based on these same
dlsr}targea, but only If the water of the
U.S. being ditched is covered by some
type of vegetation that the district amId
use to classify the activity
landclearing. and thus, apply the
wdnn’ In PCI. 90-5.
Several Corps districts surveyed
regulate chsnnelizatlon activities based
on incidental discharges. These districts
tend to fears on those chenn&1, 1oo
operations that employ drag line.. At
least one of thes . districts will only
regulate these chnnneliz.atlon activities
lithe activity Is conducted In water.
At least three of the eleven dlsh4ds
surveyed regulate mining activities in
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Federal Register I Vol. 58, No. 163 / Wednesday, August 25, 1993 I Rules and Regulations 45015
the waters of the U.S. Two of these
disthdz are wwtiy regulating thee.
activities In virtually the seme m*imer
as they will be regulated under today’s
rule. Other districts only regulate
mining activities U the material
removed Is In Water. Yet another district
regulates the discing of peat boge, which
Is required In the mtntng of peat.
As explained above, medurni, id
landclearlng is being regulated In a
fairly amsldsnt manner by ill Corp.
distrlctsdueinlarg.parttotheseries
of regulatory guidance letters that have
been issued by the Corps over the past
decade. There Is, however, some
Inconsistency in how the moat reomzt
RCL (RGL 90-5) is currently being
applied by some districts. At least one
district, as explained above, uses the
RGL 90-4 to regulate discharges
Inddental to ditching, as long as the
area has some type of vegetation on It.
Some dew.. ol Inconalstency among
the Corp. di 1ds’ In regulating
ditching. r-ha, , elIzetIon, mining . and
even landcleerlng Is then,fure evident In
the results of ow muvey. Tb. Carp. will
readily concede that practically
district will have to change wme
number of their regulatory prrrtIcRs to
conform to today’. ru)e. However, the
allegation that today’s rule represents.
sudden and radical departure from a
longstanding. official Interpretation of
our S.ctloi 404 regulatory Jurisdiction
substantially overstates the osee.
Gommentors specifically cited several
RCLs on landclsarlng, th. only wvftten,
national guidance the Carps has lseu d
concerning any of the.. activities, as
evidence that the Corp., by
promulgating this rule, allegedly Is
drastlca 1ly departing from past agency
positions. The comm ntors focused
msiiuly en the RGL.s that were Issued by
the Corps In 1982 and 1985 that mote
narrowly construed the extent to which
mechanized landclearlng activities
would be subject to Section 404. RCL
82—5 stated that Section 404 dId not
cover “linUnimal (“de minimie”)
movement of dirt, In and of Itself,
incidental to removal of planting of
vegetation.” Under this RCL, such
activity would be covered If
“accompanied by a land leveling
operation which alters the topographic
features of a ‘water of the U.S.’ through
significant movement of soil.” After the
decision was Issued by the 5th CIrcuit
In Avoyelles, the Corps Issued RGL 85-
4, whIch provided that metthnnl,ed
landdearing activities required a
SectIon 404 permIt If “the activity
would Involve burying logs or burying
burn residue, or totally or partially
filling In sloughs or low areas, or -
- leveling the land.” This RCL also stated
that piling of trees, brush and stumps
with de mthimis amounts of soil
attached or gathered in the piling
operation did not necessarily constitute
a Section 404 discharge nl It would
totally or partially fill in sloughs or level
the land. The RCL also stated that the
filling of dump holes Is normally ad.
minions discharge because of the de
minimis nature of the incidental soil
movement
A and the Corps acknowledge that
the interpretation of the applicability of
Section 404 to mechanized landr I iarlng
activities rmita ,Ined in these two earlier
RCL was more n& ow than that
reflected In today’s regulation. Rather
than view today’s rule as a sharp
departure of mn past position, however,
we believ, that there he. been an
evolution In the agendas’ treatment of
mechanized landclearthg under Section
404. whIch has gradually brought more
and more mechanleed landcleeriug
activities under regulation by the
SectIon 404 program . The 1982 RGL
most narruwly construed the
applicability of SectIon 404 to thee.
activities, while the 1985 RCL
recognized additional circumstances
when mechanized landclesrlng would
th83et SectIon 404 jurisdIction. Finally,
almost three years ago, the Corps Issued
RGL 90-6, which took the poeltion that
mechanized landclearfng activities
generally are regulated under Section
404 because they result in the
redeposition of dredged materiaL
Today’ . rule Is therefore entirely
consistent with the guidance Issued by
the Corps in 1990.
Thus, while our position has changed
over the course of the last decade
regarding the applicability of Section
404 to mechanized landoleering
activities, we do not agree with the
commentors who argued that today’s
rule is an “abrupt” reversal of our
longstanding position. The
Interpretation of SectIon 404 contained
In the landclearlng portion of today’s
rule is the position that has been taken
by the Corps sInce 1990. Thlspositlon
reflects, moreover, the gradual Increase
In our appreciation of the euvera adveroe
envIronmental effects associated with
mechanized landclearing that has led us
to conclude that regulation of these
activities under Section 404 Is
warranted.
Even If one were to consider today’s
rule an “abrupt reversal” of a
longstanding agency position, however,
the Corps and WA believe that such a
change Is warranted In light of our
inaeased irederstanding of the severe
environmental effects often associated
with the activities covered by the rule,
and the increasing sophistication of
developers who seek to convert waters
of the U.S. to uplands without being
subject to the Section 404 regulatory
program as previously wtmrnt4ered by
the agencies. As the Supreme Cowl
recently provided In Rust v. Sullivan. an
“agency, to engAge in Informed
ni ki ig . must consider varying
Interpretations and the wisdom of Its
policy on a continuing basis.” 111 S. C L.
1759, 1769 (1.991), quoting Q’ evron
U.S.A.. Inc. V. Naftrul Re.ourcas
Defense Council, Inc., 467 U.S. 837,
883—64,104 S.CL 2792.The Court
further explained that agencies must be
provided the f1e dbility to” ‘adapt
Itheir) rules and policies to the demands
of rhAngifig C*ZCUmst1n1 “ Id.
Such thange whether dramatic or
slight, must be consistent with the
authorizing statute be based on a
“r.asone& analysis.” Id. quoting Motor
Vehicle Mfrs. A.em. of the United States
v. State Foam Mutual Autamokile las.
Co., 463 U.S. 29,42,103 S. CL 2856.
2866(1983). The Corps and WA both
strongly believ, that the regulatory
mandates exprusid In today’s ruIn are
Within the authotltiss provided to out
agencies pur mnt to Section 404 of the
CInen Water Act. Puithermore, we feel
that, to whatever gr”—’t today’s rule
constitutes. chang. of previous
practice, such a a 4 a ge Is w. . .ted , let
the reasons we have explained In the
preamble. ______
Tb. Corps regulatory vgrsw over
the years has proved to be vemeakably
adaptable to changes that has occurred
In our appreciation of wetland functions
and values and In Increased
understanding of the effects of oulain
activities on wetlands. Ever since the
Corps was first give. authority to
regulate discharges of diedged or fill
material trite waters .1 the U.S., lbs
Corps and WA hav.bam shaping and
defining the regulatory program with
the broad discretion granted to the
agencies by the CWA. Today’. rule
embodies many changes that we have
gradually adopted through less formal
guidance over the pest two decades, and
Incorporates some refinements end
clarifications to our policy that ere long
overdue.
In certaIn respects, and for every
Corps district, today’. rule will bring
about change. In our previous pradica
however, we believe that such change.
are warranted In order to ensure that the
Section 404 program can effectively
protect our aquatic resources from the
degradation thet can result from
unregulated mechanized landclesrlng,
ditching, thannellantlon, and other
excavation activities. As aII t, ’
further below, we have learned
Increaelmdv Over the last decade bow -. -
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45016 Federal Register I Vol. 58 ,
No. 163 / Wednesday, August 25. 1993 / Rules and Regulations
these activities can severely impact our
nation’s aquatic resources, and we
therefore view today’s rule as en
important means of achieving the
objectives of the CWA to “restore and
maintain the chemical, physical and
biological integrity” of those resources.
The specific facts of the case that led
to the initiation of litigation in the
Tulioch lawsuit provides a graphic
example of how mechanized
Ian dcleartng and ditching activities
adversely affect the aquatic
environment, and of the inequities that
have resulted under the previous
policies for regulating these activities.
The facts In Tulloch help demonstrate
the necessity of this rule by revealing
how one developer with the technical
expertise and financial resources was
able, under past agency policies, to
avoid the requirement to obtain a
Section 404 permIt for environmentally
destructive activities in waters of the
United Slates.
The Tulloch case Involved an 1800
acre development project In New
Hanover County. North Carolina, called
the Pembroke Jones Park. In 1987, the
Corps determined that about 700 acres
of the site were wetlands. The developer
performed numerous activities In the
wetlands that “destroyed or degraded”
them, yet the Wilmington District
repeatedly determined, based on their
understanding of the policies of the
Corps. that the developer’s activities
should not be regulated under Section
404.
The developer originally applied for a
permit for discharges associated with its
development, but withdrew the
application in light of concerns among
the Corps and resource agencies about
the significant adverse effects likely to
be caused by the development. The
developer subsequently met repeatedly
with the Wilmington District of the
Corps. presenting a strategy for
constructing the same project without
the need to obtain a Section 404 permIt.
First, the developer land cleared much
of the wetland acreage. This was
accomplished by pushing the vegetation
from the cleared area. Wilmington
District determined that since the
ch.veloper removed all the vegetation
and did not recontour the land, this
activity did not require a Section 404
permit.
If these same activities were
employed after the promulgation of
today’s rule, those activities would
trigger Section 404 regulation. Under
the rule, for example, the dirt falling
from the roots of the trees as they were
removed from the ground. in and of
ltsalf would constitute a discharge of
dredged material that would subject the
mechanized landclearing operation to
regulation. Pursuant to today’s rule,
these landclearing activities pursued by
the developer would certainly destroy
or degrade the wetlands and therefore
require Section 404 authonzation.
Second, the developer performed two
types of excavation activities in the
wetlands. He excavated some areas to
create new ponds and excavated
drainage ditches. The excavation was
performed using draglines (in the
ponds) and backhoes, which had sealed
buckets. The soil excavated was either
placed directly on uplands or placed in
sealed containers resting on the beds of
4 .wheel drive and 6-wheel drive trucks
or pans. The excavation, for the most
part. was performed in such a manner
that only drippings from the buckets of
the excavation machinery were allowed
to fall back into the wetland.
Using computer modeling, the
developer’s consultant determined that
by excavating ditches four feet deep
every two hundred feet, the wetlands in
the first conversion area could be
drained, eliminating the presence of
wetland hydrology and wetland
vegetation, and thereby removing the
area from Section 404 jurisdiction. After
these ditches were completed and the
water table had dropped sufficiently.
the Wilmington District released the
tract from jurisdiction. The developer
used this technique in several other
tracts which were also later released
from jurisdiction.
The developer also excavated many
acres of the wetlands in order to create
approximately eighty-five acres of open
water ponds. He also inundated
portions of the wetlands acreage to
create additional open water ponds. The
work was accomplished by constructing
wooden piers that the Wilmington
District did not find to be an activity
that was regulated under Section 404.
During the course of the excavation
operations. the Wilmington District
determined that these activities were
not subject to regulation. By using
sealed buckets and container trucks, the
developer was able to substantially
reduce the amount of dredged material
being redeposited in the wetland.
Although the Wilmington District later
adopted a more strict position regarding
excavation activities in wetlands, the
District initially determined thai it
would not require the developer to
secure a permit based on the
“drippings” along.
As a result of this operation, hundreds
of acres of environmentally valuable
pocosin wetlands have been converted
into a residential development and a
goll course without being regulated,
eliminating opportunities to avoid and
mitigate adverse environmental effects.
Pocosins are an unusual and relatively
rare type of wetland found only in the
Southeast. Owing their existence to poor
drainage and abundant rainfall,
pocosins typically serve important
water quality and groundwater recharge
functions, and often provide habitat for
rare plants and animals. Because of the
sophisticated methods employed, this
developer was able to evade regulation
under the Section 404 program while
destroying these ecologically valuable
wetlands.
Il ls clear that the methods used by
the developer were expressly chosen
because they would avoid triggering the
need to obtain a Section 404 permit. The
developer’s representatives met
repeatedly with the staff at the
Wilmington District to determine what
the District believed was the exact
extent of Its regulatory jurisdiction over
wetland excavation. It was only after the
developer was confident that it could
successfully evade Corps regulation that
it would proceed with the next
destructive portion of its operation.
It is precisely because of operations
like this development that the Corps
and EPA have decided to promulgate
this rule. At one time it appeared to be
sufficient to base the regulation of
ditching on sidecast material. This, as
well as other similar projects. have
demonstrated that this is no longer the
case. It the Corps and EPA are to
perform their assigned mission under
the CWA, “to protect and restor the
chemical, biological, and physical
Integrity of the waters of the U.S..” we
believe that modification of earlier
practices and policies is necessary and
appropriate.
C. Presumption That Mechanized
Landcleanng. Ditching. Channelization
and Other Excavation Result in
Discharges
The proposed rule contained language
that would have established an
irrebuttable presumption that
mechanized landclearing, ditching.
channelization or other excavation
activities in waters of the United States
result in the discharge of dredged
material (proposed 33 CFR 323 2(d)(2)
and 40 CFR 232.2(e)(2)).
1. Public Comments and Changes to
Proposed Rule
Commentors expressed several
concerns with this approach. First,
commentors argued that the terms
“mechanized landclearlng,” “ditching,”
“channelization” and “excavation” are
vague, and therefore do not provide
clear guidance to the regulated public as
to whether their activities would require
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No. 163 / Wednesday. August 25, 1993 / Rules and Regulations 45017
a permit tinder the rule. Co entore
- argued. mas .over that the agendas had
not pi tit .d factual Infasmatlon In
justIfy the conclusion that these
activities luvanebly result hi discharges.
They contended that It 1. possIble In
some s to coudud some of these
activities without causing any failback
or redeposition of dredged materiaL
In response to these comments, and In
order to ensine that the final rule Is
clear and understandable, the Corps and
EPA have made caitain changes In the
final rule. The agendas have deleted the
propesed rule language that would have
established the lrrebuttable presumption
that the listed activities will result in
discharges of dredged material. As
explained in the preamble to the
proposed rule and explained further
below, we believe that It Is virtuafly
impossible to conduct mechanized
landclearlng. ditching. chsnnelizatlon
or excavation in waters of the United
States without causing Incidental
redeposition of dredged material
(however small or temporary) In the
process . However, the agencies cannot
rule out the possibility that, in a highly
unusual case, or with novel technology,
one or more of these activities might be
accomplished without such a discharge.
Moreover, since the agencies’
jurisdiction over a particular activity
can only be triggered by the presence of
a discharge In the specific case, the
agencies declined to make a categorical
finding in this regulation that the listed
activities always result In discharges.
That determination, by its nature.
depends on the fads of a particular case.
However, the agencies strongly -
admonish any party considering
conducting any one of these activities
without obtaining a permit that they
may be proceeding at the risk of
violating Section 404 since, under
today’s rule, a permit Is required In any
case where any Incidental redeposition
of dredged material (however small or
temporary) is cause in connection with
an activity that would destroy or
degrade waters of the United States,
unless otherwise exempted under
Section 404(fl.
Because this rule does not make a
finding that mechanized Iandclearing.
ditching. channelization and other
excavation will always result In
discharges, commentor’s concerns about
the factual support for such a finding
are no longer relevant. Section C, below.
however, provides a detailed
description of how mechanized
landdearing, ditrhing, chanirelization
and other excavation activities can
result In the redeposition of dredged
materials.
Several cemmentors stated that the
term med,anlzad landclew*ng” should
not be defined to include operation.
such as the moving or cutting of
vegetation where the activity occurs at
or above the soil/sediment line. Seine
commentors wanted the Corps and EPA
to clarify which Isnddearlng activities
will be regulated under this rule. We
agree that not all mechanized operations
involving the removal of vegetation In
wetlands and other waters of the United
States should be regulated because not
all thee. operations result in a discharge
of dredged or fill material.
In response to these comments , the
definition of discharge of dredged
material In th. final rule expressly
excludes “activities that Involve only
the cutting or removing of vegetation
above th. ground (e.g., mowing, rotary
cutting. or thainsawing) where the
activity neither substantially disturbs
the root system nor involves
mechanized pushing. dragging, or other
similar activities that redeposit
excavated soil materiel.” Under this
language, a discharge only oonirs when
mechanteed lande’ Iearing activities
occurring In waters of the U.S. cause
soils end other xcavated dredged
materials to be added or redeposited In
such waters. So long as all work occurs
above ground level, and root systems are
not substantially disturbed, the cutting
of vegetation, whether using hand-held
equipment or equipment mounted on
heavy machinery, would not cause
either the addition or the redeposition
of dredged material. For example,
maintenance clearing of existing
powerlznes and chipping cut vegetation
in place or shearing vegetauon above
the soil line where the vegetation is not
subsec 1 uently windrowed or otherwise
pushed would not usually cause a
discharge regulated wider Section 404.
Several coinmentors, however,
appeared to argue that maintenance of
utility line corridors would never result
In a discharge of dredged or fill
material. These commenton cited the
decision of the Fifth Circuit in Save Our
Wetlands, supm, which held that
cutting of trees with a d1LAinJ AW and
windrowing of the vegetation did not
result in a discharge subject to Section
404. As noted above, today’s rule
expressly excludes from the definition
of “discharge of dredged material” the
cutting of vegetation above the ground.
Under today’s rule, if vegetation is cut
above the surface and then lifted into
windrows without causing redeposition
of excavated material, then no Section
404 permit Is required. U, however.
windrowing is eccomplisiwl in a
manner that would redeposit dredged
material (for example, by pushing the
fallen vegetation with ebafldomv or
similar equipment), then e’permlt
would be required.
Unlike certain commentors, however,
w do not reed Save Our Wetlands as
holding that EPA end the Corp. are
precluded under the CWA from
regulating Iendclesrlngunlees it would
result In a conversion of waters of the
U.S. to uplands. That decision did not
construe the scope of the agencies’
statutory authority under Section 404,
but rather turned on EPA’s and the
Corps’ regulatory definition of discharge
of dredged material. The cowl held that
the activities in that case did not
constitute a dlacharge of dredged
material under the agencies’ regulatory
definition because the activity would
not convert wetlands to uplands. An
activity Involving a discharge of
dredged material subject to todays rule,
however, would require • permit if it
would destroy or degrade a water of the
United States. We do not read Save Our
Wetlands a. addressing. In any respect,
the agencies’ statutory authority to
adopt the regulatory pproach we are
taking here. indeed, the court expressly
noted in Its opinion that Congress left to
EPA and the Corps how to define the
term “dredged or fill material.” Id. at
647,
2 Deccriptlon of Mechanized
Landdoaring, Ditching. Channelization
and Other Excavation Activities
The agencies provide below a detailed
descnption of the actual processes
Involved in mechanized Iandcleartng.
ditch1ng channolization and other
excavation. This discussion is Intandod
to be illustrative of the major types of
landclearlng and excavation techniques
currently used, and Isnot intended to be
exhaustive or limit in any m nn r the
scope or applicability of the final rule.
We are providing this description In
order to illustrate the manner in which
these types of activities cause Incidental
soil movement, which results In
additions or redepositlonsof dredged
material.
a. Mechanized Iondclearing. in the
mechanized landclearing process, the
addition or redeposit of dredged
material can occur several ways, For
example, Implements used In the
mechanized landclearing process are
scraped along the surface of the ground
or pushed Into the ground and then
moved through the soil, usually by
bulldozers or loaders. Brusbrakes,
rootrakes, chunkrakas, disc harrows,
root plows. Tippers, bulldozer plows.
-and many type. of shearing blade. are
characteristic of the type of equipment
which operate .ln this way. Brushrakes,
for example, have tine. whiclisorape
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43018 Federal Register / Vol. 58 .
below the ground level to gather and
stockpile slash and loose rock;
chunkrakes have bowl shaped blades
frequently up to two feet or more in
diameter. which cut into the ground and
fluff the soil; disc harrows knock down.
chop and partially bury weeds, brush,
and small saplings by using concave
disc, two feet or more in diameter, with
sharp scalloped edges. root rakes
remove roots and stumps by use of a
fork-like blade pushed through the soil.
shearing blades are tractor-mounted
shears which can weigh up to several
thousand pounds and can move large
amounts of debris, soil and roots if they
are moved along the surface of the
ground. Rippers and deep plows are
pulled along below the soil surface to
break up hard pans or other stiff subsoil.
The arm which attaches them to the
bulldozer or loader drags through the
soil surface, moving soil aside and
thereby causing a discharge.
When the implements used in
mechanized Landclearing move along
the ground or through the soil, they
scrape. pick up. move or otherwise
displace debns and soil (including leaf
litter and humus) and usually have a
leveling effect on the ground by moving
debrrs from high areas to low areas.
When soils are picked up. moved, or
otherwise displaced. they are added or
redeposited to waters of the United
Slates at various distances from the
excavation point as the Implements
used in the mechanized landcleering
process move through waters of the
United States. During the discing,
tining. or raking process. for example.
soil will ride In front of the disc, tine.
or rake If the disc, tine, or rake scrapes
or penetrates the ground. resulting In a
- displacement and redepositing of soils
and sediments.
The addition or redeposit of dredged
matenal also occurs when equipment Is
used to knock down trees and rip up
root systems even if the equipment used
does not, in Itself, scrape across or
penetrate the ground. When stumps are
ripped out of the waters of the United
Slates, soils and sediments are added or
redeposited back into the waters of the
Urtited States. Also, holes and
depressions are created in the ground
hich are typically filled by using the
.1i which removed the trees and
their ri.. s or subsequently by other
vehicles or equipment. This filling or
redeposition would constitute a
discharge in addition to that which
occurs by the removal of the stumps
themselves. Tree pushers and tree
spLitters are examples of equipment
which normally operate in this way. A
tree pusher uses a bar mounted to the
front of a bulldozer or loader while a
tree splitter uses a V-shaped blade,
which Is usually about 18 to 20 feet In
length. As the tree pusher or tree splitter
knocks the tree down, the roots are
usually ripped up out of the ground.
Any roots remaining are then typically
removed from the ground by the
bulldozer’s blade. Not all equipment
used to remove trees disturbs root
systems. or pushes. drags, or otherwise
engages in an activity which results in
a discharge of dredged material. Some
tree shears or tree pinchers. for example 1
may be operated in such a manner so
that they do not cause a discharge of
dredged material, provided the
vegetation is cut above the ground while
leavin the soils and roots intact.
b Ditching. channelization and other
excavation. During excavation, material
in either a solid ‘or semi-solid form is
removed from the waters of the United
States As material is excavated from the
waters of the United States, the addition
or redeposit of dredged material occurs
through soil or sediment spills.
drippings, and moving or displacing of
soils and sediments as the dredging
equipment moves through the soil or
sediments
Ditching and channelization are two
types of excavation activities which
often occur in wetlands and in other
waters of the Untied States. As we use
the terms here, ditching is the act of
creating ditches (i.e., trenches or
troughs) by excavating the earth.
Channelization is the modification
made to. within, or adjacent to an
existing stream channel, as well as the
rerouting of a steam channel. Both
ditching and channelization are used to
convey water, often for Irrigation or
drainage purposes and can be
accomplished by using the same
equipment.
Most ditching and channelization
activities are accomplished using
excavation equipment of some type,
which is usually characterized by the
use of some form of bucket or scoop to
excavate soil and sediment.
Mechanial dredging equipment
typically consists of a backhoe, a
bulldozer, a dipper . ore bucket. A
backhoe isa hoe-type or pull-type
shovel usually attached to the beck of a
front loader. A backhoe, which shovels
and then lifts soil or sediments from
waters of the United States. is often
used during the construction of ditches
or for stream channelizatlon projects. A
dipper and bucket operate at the end of
a boom, which Is attached to a crane or
other vehicle. Buckets are suspended
from i cable and dippers are fixed
directly to the boom, Typically, a crane
drops the bucket Into the soil or through
the water column to the bottom. The
bucket is filled with soil or sediments
and lifted from the water or off the
ground and dropped or sidecast on
adjacent grounds or Into vehicles where
It is moved to another disposal site.
Bucket dredging for ditching and
channelizatlon projects is commonly
done with a dragline. Draglines. or other
equipment of this kind, operate by
dropping the bucket into the soil or
sediment and then dragging it through
the soil or sediment until It Is filled.
With a dipper, as with a backhoe. a
bulldozer or loader pushes the scoop or
hoe through the soil or sediment In
order to fill up the dipper. The dipper
Is then moved off the bottom and the
collected sediments disposed of as they
are with buckets.
Many stream channelization projects
are accomplished by using a bulldozer
to push sediments, including cobble.
gravel and sand, from a particular point
in the stream to another location. To
complete such work, the bulldozer
blade Is lowered into the bottom of the
stream and then moved in a forward
direction which results in the pushing
of sediments to another location In the
steam or to an upland area.
Because of the physical processes of
soil movement inherent in the act of
dredging, the use of bulldozers.
draglines, dippers. end backhoes. or
other equipment of this kind will,
except In Limited situations, result in
some addition or redeposition of
dredged material. The addition or
redeposit of dredged material occurs as
soils and sediments are picked up and
moved during the excavation process.
For example. when a dragline or
backhoe Is dragged through soils ot
sediments, such soils and sediments are
displaced and redeposited to various
distances from the initial excavation
point as the Implement used In the
excavation process gathers the dredged
material. This same type of
displacement and redeposition occurs
as a bulldozer pushes sediments during
a stream channelization project. Also.
when the dragline or backhoe stops
moving along the bottom and the bucket
Is raised, additional additions or
redeposits of soils or sediments occur as
such material falls from the bucket
The cutterhead dredge Is the most
commonly used hydraulic dredger. It
operates by using a rotating cutter to cut
into the sediments. The rotating cutter
Is attached to a suction line which sucks
in the material as It Is being cut.
Typically, a cutterhead Is used to break
up the sediment and mix It into a slurry
and then pump It through a pipe to a
disposal area. As the cutterhead moves
through the bottom, It pushes the-
sediment around. The addition or
No. 163 1 Wednesday, August 25, 1993 I Rules and Regulations
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Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and RegulatIons 45019
redeposit or dredged material occurs as
the whirling of the cutter slings some of
the dredged material away from the
suction of the pump either as discrete
clumps or In suspension and adds or
redeposits It at various points from
where the cutterhead moved through
the bottom.
D. Effects of Mechanized Landcleanng,
Ditchin& Channeiizotion and Other
Excavation
The agencies received substantial
public comment regarding whether the
activities that would be covered by this
rule In fact destroy or degrade waters of
the U.S. Many commentors cited
activities that they believed did not
cause auth an effect. There was also
confusion regarding the meaning of
“degrade” In the proposed rule. Some
commentors also objected to the
presumption In the proposed rule that
these activities destroy or degrade
wetlands, and questioned the factual
basis for auth a presumption. These
comments are addressed below.
1. DefinItion of “Destroy” and
“Degrade”
The proposed rule did not contain
definitions of the terms, “destroy” and
“degrade.” In the preamble to the
proposal, however, the agencies
solicited public comment on defining
destruction as altering an area “In such
a way that It would no longer be a water
of the US,” and defining degradatlon as
occurring when a discharge “results in
an Identifiable decrease in the
functional values of the water of the
U.S.” 57 Fed. Beg., 26896.
Several commentors supported the
definition of “destroy,” stating It was
dear end concrete. A few commentore
recommended that the definition of
“destroy” be modified to clarify that It
is only necessary to determine whether
there is destruction in areas currently
being delineated as waters of the United
States. Two commentors felt the
destruction threshold was Inadequate
and that destruction would also occur
when a wetland or other special aquatic
site Is converted to open waterbody,
such as conversion of a wetland to a
retention pond. Another commentor
disagreed and argued that this type of
activity did not destroy, and possible
did not even degrade, waters of the
United States. We believe that the term
“destroy” Is sufficiently clear that no
change in the proposed approach is
appropriate.
We agree with commentors that the
jurisdictional status of an area before
andafteranactlv ltytakesplaceshould
be based on current agency guidance for
making such determinations. While we
agree that conversion of a wetland or
other water of the U.S. to another type
of water of the U.S. (e.g., conversion of
a wetland to open water such as a lake)
does not necessarily “destroy” a water
of the U.S., such a change could In fact
“degrade” an area by adversely affecting
at least one of the aquatic functions of
the site. As discussed further below,
while there may be some environmental
benefits associated with such a project,
any adverse effect on any aquatic
function would mean that an activity
required a Section 404 permit. While
such an activity may well receive a
permit based on consideration of the
Corps’ public interest review and the
Section 404(b)(1) Guidelines, we do not
believe that It would be appropriate to
exclude such activities from the
coverage of Section 404 entirely. For
clarity, we have added the definition of
destroy to the final rule (see 33 CFR
323.2(d)(4); 40 232.2(e)(4)).
By far, most commentors addressing
these terms were concerned with the
definition of “degrade” contained In the
preamble to the proposal as “an
Identifiable decrease In the functional
values of waters of the United States.”
The commentors stated that
“identifiable decrease” and “functional
values” were vague terms, which were
not susceptible to measurement, and
that adoption of these terms would only
contribute to Increased confusion over
the Section 404 regulatory process, as a
result of subjective determinations made
by Corps or EPA personnel. Two
commentors felt that the term
“functional values” was inappropriate
and should be replaced with “functions
and values,” to be judged separately
since functions are measurable and
values are subjective. A few
coinmentora recommended that
regulated waters be generally classified,
according to potential functions and
values, for their respective geographic
areas, while two others felt functions
should be directly related to the science
of water quality. Several commentors
stated that there is no established
methodology to evaluate functional
values for Impact assessment. Therefore,
they recommended that the Corps and
EPA develop a methodology and/or
identify a preferred method to provide
a clear and precise standard to measure
degradation. Further, two of these
commentors also felt that the selected
methodology should be Implemented
only after promulgation through notice-
and-comment rulemaking.
Several cominentors disagreed with
the example presented In the proposed
rule, I.e., that If the hydrologic regime of
a wetland Is altered enough to change
the vegetative composition of the area.
it will be degraded. These commentors
did not believe a mere change in
vegetative composition automatically
results In degradation. As a means of
better clarifying the term “degradation,”
several commentors suggested that the
definition refer to an “Identifiable
adverse effect that the proposed activity
Is likely to have on waters of the United
States.” Two commentors suggested
replacing the word “identiflable ’ with
“significant” and one commentor
recommended changing “Identifiable
decrease” with “appreciable decrease.”
Because there was confusion among
the public about the term “degrade” we
have chosen to Include a definition of
degradation In the final rule that
incorporates suggestions made by some
commentors. Under the final rule, an
activIty results In degradation when It
would have more than a de minimis
effect on the area by causing an
identifiable individual or cumulative
adverse effect on any aquatic function.
As discussed further below, this
standard is a threshold for determining
whether an activity requires a Section
404 permIt at all, sowe believe that any
adverse effect to any aquatic function of
the site would constitute “degradation”
under the final rule. Evaluation of the
project and its overall Impacts under the
Section 404(b)(1) Guidelines and the
Corps’ public interest review would
occur during the permit process.
This definition changes how the term
“de minimis” Is used In the rule from
the way It has been used previously In
the definition of “discharge of dredged
material.” In the previous nile, the term
“de minimis” referred to the amount of
soil moved during normal dredging
activities, and the proposed rule
similarly used this term to refer to the
amount of soil moved in the process of
mechanized landclearlng, ditching.
channelizatlon and other excavation.
The definition of degradation in the
final rule uses the term “do nlnimis” to
refer to the degree of envIrtW enta1
effects associated with thesiectivitles.
This change makes sense for everal
reasons. First, using the term “de
minimis” to refer to environmental
effects is consistent with the Intent of
this rulemaking, which is to ensure that
Incidental discharges associated with
mechanIzed tandclearing, ditching,
channellzation and other excavation
trigger Section 404 where those
activities would have certain effects on
waters of the U.S. Establishing a de
minimis effects test also comports with
the structure and goals of Section 404,
which focus on providing protection of
waters of the United States from adverse
effects associated with discharges of
dredged or fill material.
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45020 Federa) .eglet r I Vol. 58 ,
No. 163 / Wednesday, August 25. 1993/ Rules and Regulations
EPA and the Corps believe that the do
minimis exmptlon contained In todays
regulation is within the agencies’
authority under SectIon 404. The
underlying focus of Section 404 Is on
evaluating and. where possible.
reducing and avoiding adverse effects to
the aquatic environment due to
discharges of dredged or flU material.
Section 404’s locus on environmental
effects is evident in numerous aspects of
this statutory provision. For oxampla.
Section 404(c) authorizes EPA to
prohibit, deny or restrict the
specification of any she for the
dLscherge of dredged or fill material if
it would have “unacceptable adverse
eff. .ct5” on municipal water supplies.
ch&Ili h beds and fishery areas. wildlife
or recreational areas. A similar focus on
environmental affects is evident in
Soction 40410(2). which “recaptures”
activities otherwise exempt under
Section 404(0(1) where the activities
have the purpose of changing the use of
an area of waters of the United States.
and have the effect of impairing the flow
or circulation, or reducing the reach, of
waters of the United States.
Thus, the very purpose of Section 404
is to conduct an environmental review
of discharges of dredged or fill material
in order 10 determine the gravity of the
environmental harm associated with the
discharge. and evaluate ways in which
that harm can be reduced or avoided.
The focus of Section 404 on effects of
dischasgea is reflected throughout the
Section 404(b)(1) Guidalinea which, for
example. prohibit discharges where a
practicable alternative would have less
“adverse impact” on the aquatic
ecosystem, where a discharge would
cause orcontribute to significant
degradation of the aquatic environment
or wham appropriate and practicable
steps have not been taken to minimize
“adverse effects of the diwhaige on the
aquatic ecosystem.” See 40 CFR 230.10
(a). (ci, and Cd). See also 40 CFR 230.11
(listing types of effects that must be
considered in the permitting process).
Therefore, subjecting de minimis
activities to review under section 404
would be a needless paper exercise that
would divert limited agency resources
from focusing on discharges associated
with environmental effects of concern
under Section 404. Given the clear focus
of Section 404 on regulating activities
based on their environmental effects, we
viaw an exception for discharges of
dredged material having do nunimis
effects as a tool for advancing the goals
and objectives of Section 404. See
Aiobanw Power Co. v. Castle. 636 F.2d
323 (DC CIr. 1979).
We note that the exception addressed
by this rulemaking was already present
in the agRnr4& regulatory definition of
“discharge of dredged material.” This
rule is clarifying. and narrowing the
effect of, this pta-existing exception.
Moreover, as discussed further below,
EPA and the Corps have Included
provisions in the rule to help ensure
that only truly de uunirrns activities are
exempted from the Section 404 program
by requiring that dischargers engaging
in rnechaiuzed landclearing. ditching.
channelization and other excavation
obtain a finding by the Corps. or EPA as
appropriate, prior to their discharge.
that their activities do not require a
permit.
We wish to emphasize that the
threshold of adverse effects for the de
mJl .Imls exception isa very lois one
Und3r the final rule, an identifiable
adv9ree individual or cumulative effect
on any aquatic function is sufficient to
subjuct an activity to Section 404
juricdlction Some activities may cause
certain adverse effects on the aquatic
ecosystem while having other beneficial
effects. For example. an activity altering
the hydrology of a wetland may result
in restoring pre-existing hydrology, or
may improve habitat value or water
quality in the iong.term. If the activity
would result In some loss or identifiable
reduction of any aquatic function to
achieve this result, however, the activity
would “degrade” waters of the U S. and
a permit would be required under
today’s rule. For example. if a discharge
activity would have any adverse Impact
on the suaability of the area as habitat
for any species utilizing the area, a
permit would be required. It is not our
intent, therefore, that the positive and
negative effects of the activity be
balanced and to require a permit only in
those cases where the net effect is
adverse. Rather, an adverse effect on any
one aquatic function, even if it is
temporary, would be sufficient under
the final rule to trigger the Section 404
permit requirement.
In the case of endangered or
threatened species, any effect of an
activity on such species i ou1d trigger
an inquiry by the Corps as to the nature
of that effect, and whether the activity
would destroy or degrade waters of the
U.S. within the meaning of today’s rule.
if there is an effect on endangered or
threatened species from an activity, the
Corps in consultation with the Fish and
Wildlife Service or the National Marine
Fisheries Service (depending on the
agency having jurisdiction over the
species) under Section 7 of the
Endangered Species Act, will determine
whether the activity Is likely to
adversely affect the species. If the Corps
finds that the activity Is not likely to
adversely affect the species, and the
Service concurs in writing In this
finding, then the activity would not
“degrade” the water within the meaning
of today’s rule, and no permit would be
required. If, however, either the Corps
or the Service believes that the effect is
likely to be adverse, then a Section 404
permit will be required for the activity
Other examples of adverse effects on
any aquatic function would be an
adverse altoration of the area’s
hydrologic regime. or of the type,
distribution of diversity of vegetation.
fish and wildlife that depend on such
waters. Again the threshold of effect
under the fine) rule Is a low one. It
would not be necessary for a discharge
activity to remove or significantly
Impair wetland hydrology to trigger the
permit requirement. An activity that
would, for example. likely reduce the
duration of inundation or saturation of
a portion of wetland would ‘degrade”
the wetland within the meaning of this
nile Indeed, In some cases. increasing
the duration of inundation or saturation
may have an adverse effect on en
aquatic function. Similarly, alteration of
the vegetative composition of a water of
the US. does not require that all
vegetation be removed, or that the
vegetative composition be so
significantly altered that the area would
no longer meet the hydzophytic
vegetation criteria for delineating
wetlands. A lesser change to the
vegetation of an area can, for example.
have an Impact on the function of a
wetland as a food source or as habitat
for a species utilizing the area.
Activities such as walking, bicycling
or driving a vehicle through a wetland
would have de mlnimis effects except in
extraordinary situations, and the
agencies do not intend to devote scarce
resources to regulating such typically
innocuous activities.
In response to commentors who
thought that the agencies should
establish a higher effects threshold In
this rule (e.g., activities would be
regulated only when they have a
“significant” effect on the environment).
we wish to emphasize that the de
mrnimis exception is necessarily a
narrow one, limited to “trifling” or
“inconsequential” effects (see Alabama
Power Co. v. Costle, 636 F24. at 360 (DC
1979). Moreover, the evaluation of
effects under this rule is for the purpose
of determining whether an ad.Ivlty is
subject to regulation under the CWA at
all. When an activity poses more than
de minimis effects on the aquatic
environment, the severity of those
effects will be evaluated to determine
whether, for example, a class of
activities would have rnin mid effects
and therefore could be authorized bye
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72.
Federal Register I Vol. 58, No. 163 / Wednesday, August 25, 1993 I Rules and Regulations 45021
general permit. See CWA Section 404(e).
The severity of effects Is also evaluated
during the Individual permitting
process to determine whether a permit
should be issued and, If so,, with what
conditions. Where the question,
however, is whether an activity requires
authorization at all, we believe that the
threshold should be a low one,
consistent with the nature of the legal
de minimis exception.
The term “significant Impacts” by
contrast, generally suggests a severe
adverse environmental effect. As used
in the National Environmental Policy
Act (NEPA), an action “significantly”
affecting the environment triggers the
most rigorous of environmental reviews.
an environmental Impact statement.
Similarly, under the Section 404(bfll)
Guidelines, any discharge that would
“significantly” degrade waters of the
U.S. is prohibited. Such a high
threshald is not appropriate where, as
here, the question Is whether an activity
should be subject to regulatory scrutiny
under Section 404 at all.
Because commentors expressed
confusion regarding the application of
the phrase “decrease in functional
values” that was included In the
proposed rule, this phrase is not
included In the final rule. Nevertheless,
an evaluation of the functions of a water
of the U.S. is obviously relevant to
determining whether an activity may
cause an adverse effect on waters of the
U.S. For example. an area whose
functions include vegetation serving as
a food source or habitat for migratory
waterfowl would suffer a decrease in
that function by the alteration or
removal of vegetation. However, it is not
our intent to place on the Corps or EPA
a heavy burden of conducting a detailed
evaluation of the water’s functions and
values and documenting how they
would be impacted by an activity. Such
an inquiry is more relevant to the
evaluation conducted by the Corps
under the Section 404(b)(1) Guidelines
and Corps regulations in the permitting
process itself. Again, we emphasize that
this is merely the threshold inquiry of
whether an activity should be subject to
regulation under Section 404 at all. We
believe it is sufficient for this purpose
that the Corps or EPA, as appropriate.
evaluate the available Information to
make a reasonable judgment of whether
an activity will adversely affect waters
of the U.S.
For similar reasons, we also disagree
with commenters who suggested that
the agendas should establish a scheme
for classLfylng the values of wetland
areas for purposes of this rule. The
“value” of a water of the U.S. is again
something that should be considered in
the permitting process when the Corps
determines whether a discharge
complies with the Section 404(b)(1)
Guidelines, and what type and level of
mitigation is necessary to compensate
for the impacts of a project. We do not
view a detailed consideration of values
of an area to be necessary for the Corps
or EPA to determine whether an activity
would simply have an “adverse effect”
on a water of the US.
One cominenter argued that the rule
should list the specific activities that
require a Section 404 permit based on
the type, location, end known impact of
the activities and also should identify
“de minimis” activities that will not
require a Section 404 permit. While
such a list might be ideal from the
regulated community’s standpoint, the
types of activities that involve a
discharge and would destroy or degrade
waters of the United States are too
numerous and varied to list definitively
They generally must be evaluated on a
case-by-case basis. However, today’s
rule does provide examples of several
activities that require a permit unless
the discharger demonstrates they would
not destroy or degrade waters of the U.S.
(i.e., mechanized landdearing. ditching,
channelization and other excavation in
waters of the United States)..
Several commentors argued that the
agencies had failed to give the public
adequate notice of the meaning of the
terms “destroy” and “degrade” as
required by the Administrative
Procedure Act. We disagree. Definitions
of the terms ‘destroy” and “degrade”
were discussed in the preamble of the
proposed rule, along with a request for
public comment. The definitions of
“destroy” and “degrade” in the final
rule reflect the proposal and the public
comments received. We believe that the
agencies have fully complied with the
Administrative Procedure Act’s
rulemaking requirements.
One commentor felt that the
definitions of “destroy” and “degrade”
contradicted Section 101(g) of the CWA.
It is entirely unclear to us how this nile
conceivably would be inconsistent with
Section 101(g), which provides that
State water rights will not be
superseded, abrogated. or impaired by
the CWA. This aspect of the rule simply
addresses what activities result in
discharges of dredged material requiring
a permit under Section 404 of the Act.
Merely subjecting activities to the
Section 404 permItting requirement
cannot, In and of Itself, resultjn any
impact on allocation of water rights. The
substantive criteria for proc lssing
Section 404 permils are not altered in
any way by this rule.
Two cominenters believed that the
determination of degradation should be
the responsibility of the State agency to
ensure compliance with State water
quality standards. We disagree, since
the Corps and EPA are charged with
administering the regulatory
responsibilities of CWA Section 404.
Moreover, degradation of waters of the
U.S. will not necessarily be limited to
consideration of State water quality
standards.
2. Presumption That Activities Destroy
or Degrade
The proposed rule also would have
established a rebuttable presumption
that mechanized landclearing, ditching.
channelizatlon and other excavation
would result In the destruction or
degradation of waters of the United
States. See 33 CFR 323.2(c)(2); 40 CFR
232.2(e)(2). Some commenters
supported the proposed rebuttable
presumption because they felt these
activities virtually always cause adverse
impacts to the aquatic ecosystem.
Other commentors opposed the
presumption in the proposal on the
grounds that the government should
bear the burden for demonstrating that
it has jurisdiction over in activity.
These commentors cited the discussion
in the preamble to the proposed
revisions to the wetlands delineation
manual, in which the government stated
that it bore the burden of dentonsuating
that It has geographic jurisdiction over
a specific area under the statue. These
corn mentors argued that such a burden
should also fall on the government here.
Some corumentors contended that the
presumption would impose
unreasonable costs on project
proponents seeking to rebut the
presumption. Commentors also argued
that the presumption was based upon a
factual finding that those activities
virtually always destroy or degrade
wetlands, yet the agencies have not
provided record support for such a
conclusion beyond the reference to the
“experience” of the agencies in
administering the Section 404 program.
We believe that these commentors
have misconstrued the nature of and
basis of the approach in this
rulemaking. In the proposed rule, the
agencies stated that, in our experience,
mechanized landclearlng, ditching,
channelizatlon and other excavation
virtually always destroy or degrade
waters of the United States. While this
statement accurately describes our
experience, we are not relying on such
a factual finding to support the
approach in the final rule. Rather, we
view the final rule as legally appropriate
In light of the language and structure of
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45022 Federal Register / Vol. 58 ,
No. 163 1 Wednesday. August 25, 1993 / Rules and Regulations
Section 404. whIch prohibits the
discharge of dredged or fill material
except in compliance with a permit
under SectiOn 404. In our view, the
addition or redeposit of any dredged
material Into waters of the U.S.
associated with mechanized
landclearlng. ditching, channelizaton
end other excavation constitutes a
‘discharge.” and is therefore prohibited
if no permit Is obtained under Section
404. unless otherwise exempted under
SecUon 404(0.
The approach taken by the agencies in
this rule is to carve out a narrow
exception to the Section 404 permitting
requirement for certain discharges that
are associated with activities that have
only de minimis environmental effects.
We do not view this exception as
compelled by the Act. There is no
express de minimls exception in Section
404. and It would therefore be perfectly
consistent with the statutory scheme to
require that any person discharging
dredged materiaL to the course of
mechanized landclearing. ditching,
channelizatlon. other excavation or any
other activity to obtain a SectIon 404
permit, without regard to the effects of
the associated activity on waters of the
U.S. Nonetheless, the agencies believe
that the better approach in this case Is
to maintain a narrow exception for those
activities that have only a de minimis
effect on waters of the U.S. This
exception. es explained above, is
consistent with Section 404 and will
help improve the efficiency and
effectiveness of the program by focusing
limited agency resources on activities
having more than inconsequential
environmental effects.
The language and structure of the
final rule have been modified to reflect
the basis for the agencies’ approach.
First, the rule states that any addition or
redeposit of dredged materials into
waters of the U.S. Incidental to any
activity, including mechanized
landclaaring. ditching. channelizatlon
and other excavation constflutes a
“discharge of dredged material.” 33 R
323.2(dXl)(ilI); 40 R 232.2(e)(1)(iii).
The rule therefore provides that a
SectIon 404 permIt Is required for the
Incidental discharge unless the
discharger demonstrates to the Corps. or
A as appropriate, prior to the
discharge, that the activity associated
with the discharge does not have or
would not have the effect of destroying
or dagrading any area of waters of the
United States. Under the final rule, a
discharger beers the burden of
demonstrating that such activities will
not destroy or degrade the waters of the
U.S.. Including wetlands. 33 C R
323.2(d)(3)(fl; 40 R 232.2(e)(3)(O.
Given the language and structure
the Act, we believe that the approach
adopted in the final rule is appropriats.
Under the CWA, a pasty wishing to
discharge dredged material into waters
of the U.S. can oniy do so if It obtains
a SectIon 404 permit. unless otherwise
exempted. Therefore. ii such a
discharger conducting mechanized
landcieerlng. ditching. chenneli.zatlon
or other excavation desires to proceed
without Section 404 authorization, we
believe that It behooves the discharger
to obtain en affirmative finding from the
Corps. or A as appropriate, prior to
the discharge. that the discharge Is
subject to the de minimis exception.
Requiring dischazgers to bear the burden
of demonstrating that its activities do
not require a Section 404 permit does
not, as some commentors have asserted.
place an unreasonable burden on the
discharger. Rather, since the discharger
would otherwise be required to obtain a
permit for its activities, we believe that
it behooves the discharger to
demonstrate affirmatively that
mechanized landclearlng. ditching.
channelizatlon or other excavation
activities should be exempted from the
permitting requirement. Moreover, EPA
and the Corps would not feel
comfortable establishing a de minimis
exception for mechanized landclearlng.
ditching. channelizatlon or other
excavation activities without the
procedural protection of requiring an
affirmative finding prior to the
discharge by EPA or the Corps that the
exception is appropriate In a particular
case. This will ensure consistency in the
application of the exception and
guarantee that the exception is
interpreted in a manner consistent with
the purposes of the CWA. Under the
final rule, dischargers conducting
activities other than mechanized
landcLearlng. ditching. channellzation
or other excavation which would not
destroy or degrade waters of the United
States (e.g., walking and vehicular
traffic) do not require a prior finding by
the relevant agency that the activity can
proceed without obtaining a Section 404
permit. The agencies do not believe that
it would be practical, or an efficient use
of limitad agency resources, to require a
prior daterininstion in such cases.
However, should any activity—
including activities other than
mechanized landcleaxing. ditching.
channelizatlon or other excavation—
undertaken by a discharger in fact have
more than a de snlmmis effect on waters
of the United States, that dlschnrger Is
subject to enforcement action or citizen
suit for discharging without a Section
404 permIt.
Some commentos objected to the
proposal of regulating only activities
that are associated with Incidental
discharges where those activities
produce certain environmental effects.
These commentors felt that the agencies
should regulate any addition or
redeposit associated with mechanized
landclearing, ditching. channelizatlon
and other excavation, regardless of its
Impact on the aquatic environment. We
do not believe, however, that It would
be an effective use of limited agency
resources to eliminate completely the de
minimis language in the current
definition of “discharge of dredged
material” so that all incidental
discharges would be regulated. without
regard to their environmental effect. The
underlying purpose of Section 404 is to
avoid, where possible. the degradation
of our nation’s aquatic resources due to
discharges of dredged or fill material,
end it Is In keeping with that goal to
focus limited agency resources on ‘
activities that have more than a de
minimis effect on those waterS. See
Alabama Power Co. v. Costle. 838 F.2d
323, 357—360 (DC C l i’. 1979).
We also do not agree with one
commentor that there should be an
opportunity for an appeal to an
Independent panel of a dedslon to
require a Section 404 permit. The CWA
grants the Corps or EPA, as appropriate.
the authority to determIne that a certain
activity is subject to the Section 404
permitting requirement. Ailawing.an
“appeal” at such a preliminary stage in
the permitting process would not be In
accordance with the agendas’ roles
under the statute, and would be
wasteful of limited agency resources.
Many commentors recommended that
the Corps specify the mechanism by
which project proponents may
demonstrate that their activity does not
require a Section 404 permit. The Corps
district engineer and EPA Region, as
appropriate, will require the minimum
Information necessary to conduct an
adequate evaluation of an activity’s
impacts. The submIttal to the Corps
district engineer will include, as
necessary. the following Information: A
written des ’iption of the project; the
specific tandclearing . ditching.
channelizatlon. or excavation
techniques to be used; the equipment to
be used; the a eage and type of wetland
or other waters of the U.S. to be affected;
the extent and type of Impacts
projected; the change or loss of wetland
functions and values that could be
anticipated from the activity; a project
location-vicinity map; the name.
address and phone number of the
applicant; and other site-specific
Information requested by the district
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Fedm a1 Register I VoL 58, No. 1631 Wednesday, August 25, 1993 1 Rules and RegulatIons 45023
engineer. Based on this Information, the
Carps district engineer or flA Region.
as appropriate, will determine, within a
reasmusble length of time, whether a
Sectl m 404 permIt Is requ1red
One commentor recommended that
the language of the proposed rebuttable
presumption be modified to have the
nature and extent of the Impact assessed
during the Individual permit review
procass. We agree with the Intent of this
suggestion; however, no cth.ange is
necesSary. lien individual Section 404
permit application Is submitted, the
Corps will evaluate the nature and
extent of the Impacts of the activity and,
If appropriate, return the appllcntion If
no permit Is required.
VInally. we do not believe that a
determination by the Corps or ‘A that
a discharger must obtain a permit under
today’s rule would be subject to judldai
review, amos pre -onfw uent review Is
not available under the CWA. See e.g.,
Aveila v. Coips. 20 R 20 0 (S.D. Fla..
1990), off’d 916 F.2d 721 (11th Cl i .
1990) (holding that Corps finding that a
discharger could not proosed under a
general permit and bad to obtain an
individual permit was not subject to
judicial review).
3. Whether Specifl Activities Will
Destroy or Degrade Waters of the U.S.
In the preamble to the proposal, we
solicited public comment on whether
there were outain categories of
activities which, as a general rule, did
not destroy or degrade waters of the U.S.
and which therefore would not come
within the scope of this regulation. We
address below comments that wore
submitted on this Issue.
Many inImsfltOre felt that the
modification of the definition of
“discharge of dredged materiel” was too
expansive and would result in the
regulation of such activities as walking,
grazing, vehicular traffic, and boating In
waters of the United States. Several
other commentors Indicated that they
believe vehicular traffic should be
regulated. As Indicated above, under
today’s rule, we are not regulating every
discharge associated with activities in
waters of the U.S., but only those
associated with activities which have or
would have the effect of destroying or
degrading any area of a water of the
United States. We believe that activities
such as walking, grazing, vehicular
traffic and boating (excluding prop-
dredglngj In waters of the United States
would not generally be regulated under
this rule because, even If they do result
in discharges, they generally do not
deetr y or degrade waters of the United
States. As discussed previously,
activities such as these do not requIre e
finding prior to the discharge that the
activity would not destroy or degrade
waters of the United States. If the effect
of the activity Is demlnlmls.then a
Section 404 permIt Is not required.
One ccmrnontor stated that the
following activities should be
categorically excluded from regulation
under SectIon 404: landcleathig
activities for the aeatlon and
maintenance of utility line cerrtdcss
mechanized landclesrlng In wetlands
that are . eeaa’n.lly dry or frozen,
provided that matting of brush and
timber scours abov, the soil surface;
and use of corduroy roads in
constructing utility lines. Another
commeafor said that activities
associated with th. construction and
maintenanc, of powerline. and
distribution corridora should be
exempted from regulation under Section
404 because they do not de ttuy or
degrade wetlands. One commentoi’
suggested that routine maintenance of
pipeline rights-of-way should not
require an Individual permit since there
Is no long4erm impact on vegetation.
Another commentor stated that pipeline
oom uct1on on Alaska’s North Slope
should be specifically Identified as an
activity that should be excluded from
regulation under SectIon 404 because
the pipelines are elevated end
supported by pilings that result in only
terr porsry de minim!, discharges.
if a landcleerlng operation does not
disturb the soiL no discharge occurs;
thus, such activities would not be
regulated (see 33 CPR 323.2(d)W; 40
CFR 232.2(e)(ZXII)). We do not believe
that It would be appropriate, as this
commentor has suggested, to
categorically exclude from regulation
mechanized landclearing to aeate
utility line or transmission line
corridors. As we hav, explained above.
where a discharge oomrs. we believe
that It Is appropriate for the discharger
to bear the burden of demonstrating that
a particular activity will not destroy or
degrade waters of the United States.
Pipelines that are normally built on
pilings and where no landclearing or fill
pad construction Is required are
generally not regulated under Section
404. Similarly, we do not believe It Is
appropriate to categorlcaUy exclude
from regulation mechanized
landclearlng In frozen or seasonally dry
wetlands. While we agree with the
commentor that cutting of brush and
timber In wetlands above the soil’s
surface does not normally result in a
redeposition of soil (see 33 (7R
323.2(dXl)(lI); 40 R 232.Z(e)(2)(1l)), as
desaibed In today’s preamble at section
111(c), mechanIzed landclaarlng usually
results In a discharge of dredged
material, and the commnentor has
provided no basis for concluding that
mechanized ianArlearlng In seasonally
dry or froren wetlands will never romit
in such a discharge. We therefore do not
believe there Is a basis to exclude
categorically such areas from the mope
of this rule. Wbere a regulated discharge
occurs, It Is subject to this rule,
regardless of the type of water of the
U.S. In which It oonmrs.
In response to the commnentm’s
request that corduroy roads. (i.e.. roads
which are aested by piecing cut timber
and brush along the centerline of.
utility line corridor through a wetland
without the addition of dirt or roch fill).
should be excluded from Section 404
regulation, we agree that this activity
generally does not amatihita a di arge
of dredged materiaL However, this
activity may constitut. a discharge of
flU materiaLend requIre 5 44i a 404
authorization. Tb. agendas cenu’4 . as
suggested by mmentm.
adininii rstlvely .xpand the utetutary
exemptions for farm, forestry and
mining roads to Include corduroy roads
used for utility line construction
unrelated to farming. lorestry. or mining
operations.
Other activities that cnlnmsntors
contended should be excluded from
regulation ame: Maintenance of flood
control structures according to dadp
specifications; public health and safety
pro jects; .ctlvltlas usncla ”d with th.
maintenance of natural or sultipiad
wetlands; construction or repair of
water dlvatralon structures to dived
water under state water rights, where
there Is only a minor amount of
excavation with temporary, minimal
Impacts; ma otenafirn dredging of
cooling water intake rhannels ; dredging
operations In wetlands; the aeation of
stormwater retention/detention b.itin .
for residential construction which
Involve only de minimnis soil movement
that should not destroy or degrade
wetlands; certain wetland wildlife
management activities, 1nclii iing
wetland wildlife enhamioement work and
gravel placement In river rli nnels to
serve as salmon spawning habitat; and
excavation In a dry streambed or similar
areas, which will not cause destruction
or degradation of a water of the United
States.
We do not agree with these
commontors that these activities would.
as a general rule, not result In
discharges of dredged material that
would destroy or degrade waters of’ the
U.S. For example, a category of
activities such as “public health and
safety projects” relate&to the ptzrpase of
the activity, not to whether It causin
additions or redeposits of dredged
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45024 Federal Register I Vol. 58, No. 163 / Wednesday, August 25, 1993 I Rules and Regulations
material or whether it will destroy or
degrade waters of the U.S. Activities
associated with the maintenance of
natural or mitigated wetlands might
have an overall purpose of benefiting
the environment, but may nonetheless
cause certain adverse effects warranting
review under SectIon 404. Such
activities may be addressed through
general permits If they would have
minimal environmental Impacts.
Similarly. we do not believe that there
is a basis for concluding that the other
activities listed by this commentor will
not destroy or degrade waters of the
United States. However, some of these
activities are authorized by existing
nationwide and regional general
permits. In addition, to the extent
construction or repair of water diversion
structures Involve the construction or
maintenance of irrigation ditches or the
maintenance of drainage ditches, such
activities may be exempt under Section
404(f) of the Act. Furthermore, we do
not believe that today’s rule will greatly
burden the regulated public because, to
the extent they involve minimal
environmental impacts. the Corps will
consider Issuing general permits to
regulate those activities.
Two commentors requested that the
nationwide permits not be subject to the
presumption and demonstration
requirements of Section 323.2(d)(2).
They recommended adding to
§ 323.2(d)(2), as follows: “(2) For the
purposes of paragraph (d)(1) ,
mechanized landclearing. ditching,
channelizati on. or other excavation
activities In waters of the United States
result in a discharge of dredged
material. Further, where such activities
occur in waters of the United States and
are not authorized under the
Nationwide Permit Program at part 330,
the activity is presumed to result in
dostructfon • .“ We do not agree
with the thrust of this comment. The
tests in this rule go to the question
whether an activity results in a
discharge of dredged material requiring
a permit under Section 404. By
definition, activities already covered by
a Section 404 permit (including
nationwide permits) are subject to
regulation. The scope. applicability arid
potential use of nationwide permits is
not affected by todays rule. Those
excavation activities that destroy or
degrade waters of the U.S but only have
minimal adverse environmental effects
may qualify for coverage under a
nationwide permit. Corps districts are
encouraged to develop general permits
for those classes of mechanized
landclearing. ditching. channelizetion.
end other excavation that are
determined to have only minimal
individual and cumulative adverse
effects.
Several commentors addressed
discussion in the preamble to the
proposed rule regarding “snagging.”
which we stated included “the removal
of trees, parts of trees, or the like, from
a water body to prevent their interfering
with navigation.” We concluded that
such activities generally would not
result in a discharge and therefore
would not be subject to Section 404..
unless in a particular case, the snagging
operation would result In a discharge
through redeposition of soil and would
destroy or degrade a water of the United
States. Some commentors agreed that
snagging operations, such as the
removal of trees and tree parts from
streams, should be regulated. Two
commentors stated that all snagging
operations should be regulated. Another
commentor asserted that snagging.
especially in waters only subject to
Section 404 jurisdiction and where
Section 10 permits are not required,
should be regulated because it involves
a discharge and will result in significant
adverse impacts to wetlands and water
quality. One commentor suggested that
the exclusion for snagging should be
more narrowly defined to allow removal
of tree and tree parts only where there
is interference with navigation or where
they are likely to obstruct normal stream
flow. Several commentors expressed
concern that the new proposed rules
would negatively affect flood control
activities, such as snagging and
dredging. by requiring Section 404
permits. Two commentors stated that en
exemption to Section 404 is needed for
the maintenance of flood control
projects that involve the removal of
vegetation.
We have carefully considered these
comments and believe that qualifying
the term ‘sriagging” in the proposal to
include only the removal of trees and
tree parts where that removal is to
prevent their iiiterferiiig with navigation
is not appropriate. Therefore, for
pl rposes of today’s preamble, we are
eliminating that qualification (i ii.
prevention of intecfirer.ce with
navigation) The determination of
whether an activity involves a discharge
of dredged material is not based on the
intent of the activi’y. instead, that
determination turns on whether there is
any addition or redeposit of dredged
material into waters of the United
States. Where only vegetation is
removed during a snagging operation
and no discharge of dredged or fill
material occurs, a permit is obviously
not required. Consequently. snagging
operations will only be regulated when
they would result in Incidental
discharges through redeposition of soil
and the activity would destroy or
degrade waters of the United States. For
this reason, we do not agree with the
commentor who suggested inclusion of
an additional qualifier (i.e.. snagging
only includes removal of trees or tree
parts where they are likely to obstruct
normal stream flow).
While today’s rule may affect those
flood control projects that involve
snagging operations that result in
discharges of dredged material by
requiring authorization under Section
404, some such activities may already
be exempted under sections 404(0(1) (B)
and (C), and others may be covered by
current general permits. Also. In some
cases, general permits may be developed
where the adverse environmental effects
of certain snagging operations that
involve a discharge of dredged material
Into waters of the United States are
determined to be minimal.
Several commentors expressed
concerns that the regulation of
excavation would affect normal
drainage practices around small isolated
wetlands that allegedly have little or no
value. It is unclear what this commentor
means by normal drainage practices.
Section 404(1) provides an exemption
for maintenance of existing drainage
ditches, and such practices would
therefore not be affected by today’s rule.
To the extent they are not exempt, such
activities in smell isolated wetlands
may also be authorized by nationwide
permit number 26 or other general
permits. In general, however, we believe
that the approach suggested by the
commentor Is overboard. Small isolated
wetlands can be of great cumulative
importance to the aquatic ecosystem.
Categorically exempting drainage
activities in these areas from Section
404 of the Act would therefore not be
warranted or appropriate.
Two commentors stated that it was
unclear how commercial sand and
gravel drudging operations would be
regulated and wanted examptions for
such operations. Several commentors
wanted mining exemptions for the
removal of overburden and sand and
gravel mining operations in intermittent
streams. While we appreciate these
concerns, we believe that an exemption
would be inappropriate for this type of
activity since sand and gravel
operations do involve excavation
activities in waters of the U.S. and there
is no basis to conclude categorically that
these activities will not destroy or
degrade waters of the U.S. Indeed, most
mining activities result in significant
alteration of the aquatic environment
since their very purpose Is to remove
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Federal Register 1 VoL 58, No. 183 1 Wednesday. August 25, 1993 I Rules and Regulations 4502Z
overburden and substrate materials, and
such activities generally would
therefore have an Identifiable adverse
impact on the aquatic environment. We
have, however, decided to Include a
grandfather provision for mining
activities that have not been regulated
prior to the adoption of this rule to
allow time for operators to obtain the
necessarj permits and for the Corps to
consider development and issuance of
general permits for mining activities
that have minimal Individual and
cumulative impacts.
One commentor expressed concern
that the rule would regulate “normal
reservoir operations.” Such activities
below the ordinary high water mark of
a reservoir will often require Section
404 authorlzaUon however, districts
may develop regional general permits to
authorize certain activities with
minimal impacts. as appropriate.
One coinmentor expressed concern
that the new regulations would
discourage developers from creating
stormwater management ponds through
the excavation of existing wetlands. The
agencies note that today’s rule is not
meant to “discourage” activities that
comply with the Section 404(bJ(1)
Guidelines, including the construction
of appropriate stomiwster management
ponds. Under today’s rule, the creation
of stormwater management ponds will
be regulated under Section 404 to the
extent that such creation involves a
discharge of dredged material incidental
to excavation activities which destroy or
degrade wetlands or other waters of the
United States. However, this does not
mean these activities ore prohibited,
only that they require Section 404
authorization. As part of the permit
evaluation process, the agencies will
evaluate whether the proposal to
excavate an existing wetland to create a
stormwater management pond is the
le2St environmentally damaging
practicable alternative, and whether all
appropriate actions have been takain to
minimize impacts to the aquatic
ecosystem, and whether other Section
404 permitting criteria are met.
Moreover, to the extent creation of
stormwater management ponds require
the construction of dikes or banns, such
activities would be regulated as a
discharge of fill material, regardless of
today’s rule.
Several commentors indicated we
should regulate the pumping of water
because pumping water from a wetland
has the same effect as draining, and.
- according to this commentor, “the
impact of draining would be considered
an identifiable decrease” In functions
and values of waters of the U.S. We
believe that pumping water from a
wetland or other waters of the United
States would not, in and of itselL
necessarily result In. discharge of
dredged materiel. See Save (Air
Community v. EPA, 971 F.Zd 1155 (5th
Cir. 1992). Howe’.er. if excavation
would be necessary to aocoznplish the
pumping and the activity would destroy
or degrade a water of the United States,
then the discharge athvity would be
regulated under Section 404. Further, if
the pumping resulted In a discharge of
other pollutants toe water of the United
States. guth a discharge would be
regulated under Section 402 of the
CWA. Section 404 covers only
discharges of dredged or fill material.
We do not believe that simply placing
a pipe into a water of the United States,
per se. would necessarily involve a
regulated discharge.
One c mmento indicated that the
deepening and widening of existing
ditches should be regulated.
Maintenance of existing drainage
ditches are exempted from the permit
requirement wider Section 404(f )(1)(C).
providad the original dimensions of the
drainage ditches are not increased.
Those excavation activities in drainage
ditches that deepen or widen an existing
drainage ditch beyond the original
dimension do not qualify for an
exemption end, If they would expand
the carrying capacity of the ditch, would
like!y alter the hydrological regime of
adjacent areas, and therefore result in
degradation.
Some commentors indicated that they
believe that many excavation activities
are beneficial to the environment and
result in increased aquatic functions
end values, including excavation fur
purposes of stormwater management
and maintenance of ditches, and were
concerned that many such activities will
be regulated under Suction 4G4
However, even though these activities
may have some beneficial offecti.. they
can still have adverse effects by, for
example. altering the hydrology of an
area of the water of the U.S. Therefore,
they may be covered under this rule.
However, the Corps will consider the
use of general permits where audi
environmentally beneficial activities
otherwise result in minimal impacts. In
add ition, particular cases where the
applicant can demonstrate that the
activity would not destroy or degrade a
water of the United States would not be
regulated under Section 404.
One commentor indicated that the
preamble should clarify that the
excavation of wetlands to place drainage
tiles should be regulated under Section
404 since this involves a dischnrge and’
destroys wetlands. The excavation of
wetlands to place drainage tiLes Is
currently regulated under SectIon 404
unless such activities qualify lore
Section 404(1) exemptIon. Activities that
involve replacing existing field drainage
tiles where the replacement does not
increase the extent of drainage beyond
that provided by the original tiling
would generally qualify for such an
exemption.
S. Norma) Thedging Operations
Many commesitore suggested that all
discharges of dredged material should
be regulated, stating that It does not
seem r n hle or consistent to
exclude discharges incidental to
‘normal dredging operations” for
navigation, while regulating excavation
for noo-flavlgfttiOfl purposes. One
commentor stated that the proposal was
extremely confusing because, while the
preamble discussed eliminating the de
mininiis exemption, the proposed rule
mentioned exemptions for certain de
mininiis activities. The commentor
Mated that the proposed rule has created
a disparity with respect to excavation in
waters of the United States versus
normal dredging operations in navigable
waters of the United States. Several
commentors stated that, contrary to the
explanation that normal dredging
operations “generally do not alter the
reach or flow or circulation o(the
waters, nor do they convert waters of
the United States Into dry load or
degrade wetlands,” these operations do
in fact have negative impacts. These
commentors further cited specific
examples. Including increased
sedimentation, changes in salinity, loss
of hebitst, alteration of flows, changes in
circulation and lowered dissolved
oxygen concentrations. Two
commentors stated that the exemption
for normal dredging operations to
maintain navigation Is acceptalile so
long as the term “navigation channel” is
clearly defined as that type of channel
capable of carrying commercial traflic.
However, those comznentors stated that
the extension or deepening of
navigation channels should be regulated
under SectIon 404.
Today’s rule derifies that “normal
dredging operations” will continue to be
excluded from the definition of
“discharge of dredged material.”
“Normal dredging operations” are
defined as “dredging for navigation in
navigable waters of the United States, as
that term Is defined In part 329 of this
Chapter. with proper authorization from
the Congress and/or the Corps pursuant
to part 322 of this Chapter however,
this exception is not applicable to
dredging activities in wetlanus, as that
terms Is defined at S 328.3 of this
Chapter” (33 R 323.Z(d)(3XIIJ).
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45026 Federal Register / Vol. 58 ,
There are several reasons for
continuing to exclude incidental soil
movement occurring during “normal
dredging operations” from the
regulatory definition of “discharge of
dredged material.” The overriding goal
is to ensure that discharges of dredged
or fill material into the waters of the
United States are regulated in a
satisfactory manner. In light of this goal.
the Corps, as well as all other Federal
or private dredging entities, fully
comply with the regulatory
requirements of the Section 404 process
for any and all disposal of the dredged
material removed from the navigation
channel during dredging and discharged
iii the waters of the United States,
whether that dredged material has been
gonerated by Corps or other dredging
operations. Furthermore, the Corps
iippiies for state SectIon 401 water
qiality certifications and any required
‘.?ate permits for these disposal
iclivities.
The Corps has established a two-part
regulatory framework for the actual
dredging portion of its own normal
dredging operations. Prior to conducting
any normal dredging operations for
Corps dredging projects. the Corps must
comply fully with Its Operations and
Maintenance dredging regulatIons. (33
CFR 209. 335. 336, 337, and 338.) These
regulations were developed by the
Corps in 1986 specifically to address
environmental end other aspects of
normal dredging operations on the
waters of the United States. Pursuant to
these regulations the Corps must fully
compiy with NEPA, the Clean Water
Act. including Section 401, the Coastal
Zone Management Act, the Endangered
Species Act, the Fish and Wildlife
Coordination Act, the Marine Protection
Research and Sanctuaries Act, end all
other applicable environmental laws.
Furthermore, each time a federally
authorized navigation channel Is
designated or modified. Congress. In
effect, conducts a public Interest review
through the authorization process. This
provides another safeguard that the
subsequent normal dredging operations
to maintain these hannela are in the
best interests of the Nation.
The procedure Is different for those
normal dredging operations conducted
by other Federal agencies or non-
Federal entities. The Corps requires that
these dredgers apply for a SectIon 10
Rivers and HaiborsAct permit. The
SectIon 10 permit process includes an
extensive public Interest review
pursuant to which any adverse impacts
of the proposed dredging are fully
discussed and analyzed. The Corps
must ensure that NEPA, CWA Section
401, the Coastal Zone Management Act.
the Endangered Species Act, the Fish
and Wildlife Coordination Act, the
Marine Protection Research and
Sanctuaries Act, and all other applicable
Federal environmental laws are
complied with prior to granting a
Section 10 permit.
Considering these various types and
levels of review, the Corps and EPA
have concluded that it would not be in
the public interest to require that the
Corps, other Federal agencies, and
private entities also be required to
secure a Section 404 permit for each
normal dredging operation. This process
would be resource intensive and
duplicative, and would only serve to
divert limited Corps and EPA resources
away from permit applications that
deserve our careful scrutiny
Additionally. the Corps and EPA
believe that this is an appropriate
approach because, as a general rule,
normal dredging operations which have
been subjected to the above regulatory
process and associated environmental
safeguards do not have a substantially
adverse effect on the aquatic
environment. It may be true, as some
commentors have stated, that normal
dredging operations can, in some cases,
cause changes in sedimentation,
salinity, habitat, flows and circulation
pattorns. end dissolved oxygen
concentration. However, the Corps and
EPA believe that these impacts are
adequately addressed as part of the
regulatory and congressional review
processes described above and do not
warrant the additional scrutiny of the
Section 404 regulatory process.
As stated above, two commentors
agreed that normal dredging operations
conducted in Federal (Corps of
Engineers) navigation channels should
not be regulated under SectIon 404;
however, these commentors argued that
any deepening or extension of these
channels should be regulated under
Section 404. We disagree. and see no
reason to distinguish between normal
dredging operations, on the one hand.
and channel deepening or extensions,
on the other hand. For one thing,
Congress must authorize any major
extensions of. and any deepening of,
any Corps Federal navigation channel.
Through this authorization process.
Congress is responsible for determining
whether it is in the public interest to
conduct these activities. Moreover.
Federal agencies and non-Federal
entities must apply for a SectIon 10
permit for any project to extend or
deepen a Federal navl atlon channel.
The Corps’ end EPA s position that
incidental soil movement associated
with normal dredging operations does
not constitute a discharge under Section
404 is specifically addressed in the
Corps’ regulations at 33 CFR 323.2.
Since 1977, the Corps has consistently
held that Section 404 does not apply to
incidental soil movement during normal
dredging operations. We continue to
believe that “normal dredging
operations” to maintain or deepen
navigation channels in the navigable
waters of the United States, with proper
authorization from the Congress and/or
the Corps under Section 10, will not
result In significant environmental
impacts affecting the reach or flow or
circulation of the waters, nor do they
convert waters of the United States into
dry land. The definition of “normal
dredging operations” excludes dredging
that takes place in wetlands. We made
this exclusion to reflect the fundamental
purpose of the normal dredging
operations exception, which is to allow
for the maintenance of navigation
channels. We believe it would be a rare
and exceptional circumstance for a
party to propose dredging wetlands for
purposes of navigation. If such an
exceptional case were to arise, however,
we believe that the activity should be
evaluated under Section 404 in light of
the special functions and values of
wetlands that Section 404 is specifically
designed to address.
As we stated in the proposed rule, it
Is our desire to avoid duplicative
regulation of dredging itself in waters
within the jurisdictIonal scope of the
Rivers and Harbors Act. Normal
dredging operations In the navigable
waters will continue to be regulated and
evaluated under Section 10 of the Rivers
and Harbors Act of 1899.
F. Section 404(fJ(I)(A) Exemptions
Several commentors expressed
concern that the language of the
proposed rule might be construed as
weakening the exemptions provided for
normal farming, silviculture, and
ranching activities under Section
404 (f)(1)(A). A few commentors urged
the continued exemption for normal
farming and forestry practices as.
provided In Section 404(0. Many
commentors requested clarification that
the 404(0(1) exemptions would not be
affected by the new regulations and
some requested that the following
language be added to the rule: “The
term ‘discharge or dredged material’
does not Include activities defined In 33
CFR 323.4(a).” One commentor
requested assurance by suggesting
changing § 323.2(d)(2) to state that the
existing exemptions of SectIon 404(0.
are not presumed to have the effect of
destroying or degrading waters of the
United States. A few coinmantors stated
that § 323.2(d)(1) be amended to read
No. 163 / Wednesday. August 25, 1993 I Rules and Regulations
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Feder I Register/ Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations 45027
“the term does not Include the activities
defined in § 323.4(a)(1)—(6).” We
disagree that any further clarification Is
necessary. As Indicated In the Preamble
of the proposed rule, this rule does not
change. In any way, the manner In
which the Corps and EPA determine
whether an activIty is exempt under
Section 404(0 of the CWA. Therefore,
this regulation will not, In any way,
affect the exemptions for normal
agriculture, silviculture or ranching
activities now provided by Section
404(f)(1)(A) of the CWA. or any of the
other exemptions found In Section
404(0(1).
As part of today’s rule, the agencies
have also made an additional minor
revision to the Corps’ definition of
“discharge or dredged material” which
would make EPA’s end Corp.’
definition consistent with each other
and conform the definitions to the
language end intent of Section 404(0.
The EPA’ pre-existing definition
expressly excludes “plowing.
cultivating, seeding and harvesting for
the protection of food, fiber end forest
products.” 33 ‘R 323.2(d). EPA’s
current definition, by contrast, does not
contain this exclusion, see 40 G’R
232.2(e), although the proposal would
have added the Corp.’ language In
EPA’s definition. The final rule deletes
this exclusion entirely from the
definition of “discharge of dredged
material” because It has created
confusion with regard to the effect of
today’s rule on the Section 404(1)
exemptions.
This exclusion in the Corps’
regulation predates the adoption of
Section 404(1) In the 1977 Amendments
to the CWA. Clean Water Act of 1977,
Public Law No. 95—217,91 Stat. 1566
(amending 33 U.S.C. 1251—1376).
Section 404UX1)(A) expressly lists these
activities as examples of normal
farming. silviculture, and ranching
activities exempt from SectIon 404,
unless the activities would be
recaptured under SectIon 404(0(2). The
exclusion of these activities from the
definition of “discharge of dredged
material” 1. broader than the exemption
in Section 404(f) because, under the
Corps’ regulatozy definition, these
activities would never requires Section
404 permit, even If they would have
effects “recapturing” the activities
under Section 404(0(2). SInce Congress
expressly stated In Section 404(1) that
discharges associated with these
activities require a permit If they would
be recaptured under SectIon 404(0(2),
we believe that the exclusion in the
current rule should be deleted In order -
to be consistent with Congressional
Intent In this area. The Corps and EPA
reiterate that today’s rule, Including
deletion of this sentence, has no effect
with regard to the scope and
applicability of the Section 404(1)
exemptions. This is further emphasized
in the rule at SS 323.3 (d)(3)(iv) and
232.2(e)(3)(lv). Under Section 404(fl(1),
discharges of dredged or fill material
associated with certain activities.
Including normal farming, ranching,
and silviculture activities, are exempt
from the Act’s permit requirement,
provided that they are not “recaptured”
under Section 404(f)(2).
G. Grandfather Provision
Numerous coinmentors requested that
the Corps and EPA include a
grandfather provision as part of the
revised definition of “discharge of
dredged materiaL” In light of these
comments and consistent with past
Corps practice, the Corps and EPA have
included such a provision in this part of
the final rule.
By including a grandfather provision
here, the Corps and EPA are intending
to avoid application of the revised
definition of “discharge of dredged
material” In manner that would
frustrate the reasonable expectations of
person, who, as explained below,
justifiably relied on the previous
definition of that phrase as interpreted
by the regulatory agencies. At the same
time, however, we are also mindful of
the goals of today’s rule and the overall
goals of the Clean Water Act.
Therefore, we have developed
procedures to “grandfather” certain
“discharge . of &edged material” that,
in some Corp. districts, were not
considered to be subject to regulation
under the previous definition of that
term. Under these procedures, Section
404 authorization will not be required
for discharges of dredged material
associated with ditching, channellzation
and other excavation activities In waters
of the United States where such
discharges were not previously
regulated and where such activities had
commenced or were under contract
prior to the date of publication of this
final rule In the Federal Register, and
where such activities are completed
within one year from the date of
publication of the final rule. This
provision does not apply to discharges
associated with mechAni.ed
landclearlng because the Corps current
policy (reflected In RGL 90-5) has
generally subjected this activity to
SectIon 404 regulation. To further
ensure that Implementation of the
revised definition proceeds in a fair and
equitable manner, the Corps will be able
to extend the one-year grandfather
provision on a case-by-case basis subject
to the zouowing i.nree.jonaiuons i,
The excavation activity Is of a type that
ocours on an ongoing basis, either
continuously or periodically (e.g..
seasonally); (2) the discharger submIts a
completed Individual permit
application to the Corps within one year
from the date of publication of this final
rule; and (3) the total time period within
which the excavation activity proceeds
subject to this grandfather provision
does not exceed three years from the
date of publication of today’s rule. The
- agencies recognize that the revised
definition of “discharge of dredged
material” Is likely to apply to some
persons who have been engaging in
ongoing excavation activities, such as
some mining or sand and gravel
operations, which given their ongoing
nature on either a continual or periodic
basis, will not be able to be completed
within one year from the date of
publication of today’s rule. Therefore, in
situations where persons engaged In
excavation activities oocurrthg on an
ongoing basis have acted In good faith
by submitting a complete individual
permit application seeking Section 404
authorization for such activities no later
than one year from the date of
publication of this jul ., the agencies
believe It Is appropriate to retain
sufficient fIsedbIlIty to ensure that such
persons are not prevented from
proceeding with these excavation
activities pending the evaluation of a
Section 404 permit application for the
discharges associated with the activity.
The agencies have further determined
that a grandfather period not to extend
beyond three years from publication of
today’s rule is sufficiently long to
ensure fair and equitable treatment of
the regulated community In a manner
consistent with th. environmental goals
of this rulemaking and the Clean Water
Act. Moreover, discharges associated
with activities that were regulated by a
particular Corps district prior to the
promulgation of this rule will not be
subject to the grandf8ther provision In
the regulation. Ifs discharger I.
uncertain whether its activity was
regulated by the Corps district In which
the discharge would take place the
discharger should contact the Corp.
district. Finally, the grandfather
provision doe . not apply to landclearthg
activities, since the Corps has
Interpreted current regulatory
provisions u coverIng mechanized
landclearlng under the SectIon 404
program since 1990. See RCL 90—S.
H. General Permit Comments
We Invited public comment to -
Identify mechanized Iandclearing .
ditching, d annelizatIon, or other
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45023 FwderaI Register I Vol. 58. No. 163 I WednesdaY. August 25. 1993 / Rules nor1 Reguktioes
excavation adivltlq,s that would
generally have mliuinal envizoomeDtal
impacts and thme(ore be pot.ntial
candidates for authorization under
general permits. Several corarnentors
suggested activities that are either
exempt from regulation or already
covered under the natIonw d general
permit program. Several coinmentors
suggested that activities having minimal
environmental impacts should be
authorized by general permits. but they
did oct give specific candidate
act ivitles. Another commentor indicated
that all activthes should be regulated on
a case-by-case basis. Several activities
were suggested for authorization by
general permits. These include all
rne.hanizad landcleartng mechanized
landclearing in seasonally dry or frozen
wetlands where brush and timber
cutting ocours above the soil surface.
landcisaring for aestion and
maintenance of utility line or overhead
transmission line corridors; water
diversion StSUCtUIM coastructed to
exercise water rights, activities when
states already have effective regulatory
controls discharges incidental to
dredging or excavation to improve fish
and/or wildlife habitat or to restore
previously filled wetlands; excavation
in dry streambeds; use of a hydroex to
deer vegetation; ueat iOfl of stormweter
retention/detentIon b”- for
residential onsntrectwn; and sand and
gravel mining activities having mInor
impacts.
Th,genersl permit program is an
extremely Important regulatory tool
used by the Corps to regulate effectively
activities with minimal Impacts on the
aquatic environment. Tb. Corps does
not have the resources to regulate all
activities on a case.by-case indlildual
permit basis. Therefore. we must focus
our resotocee on those activities with
more than minimal impacts. Moreover.
general permits are very effective in
protecting the aquatic environment.
because they are Issued with stringent
conditions that limit authorized
activities to those with minimal adverse
effects. This regulation may inavase the
number of discharges regulated by the
Corps nationwide.. In order to
administer reasonably the regulatory
program and protect. effectively the
environment, the Corps will identify
those activities with minimal Impacts
and pursue development of general
permits. We appredate the suggestions
made and will consider them for
possible issuance as nationwide or
regional general permits, in the near
future. Any proposed nationwide
permits will be published In the Federal
Register and any proposed rv iunal
general permits will be propoeed by
pukthc DOticete obtain public comment
before a decision in made whether to
Issue such nationwide or regional
— —
IV. Revision to Definition ol “Discharge
of Fill Material;” 33 CFR 323.3(c) and
40 CFR 232,2(r)
We have organized the numerous
comments on the regulation of pilings as
fill material into several issues. Our
discussion of the comments is provided
below.
A Summary of Major Issaies and
Changes From the Proposal
Many commentorS supported the
proposed revisions on the grounds that
the regulation of the placement of
pilings as a discharge of fill matenal
was necessary under Section 404 to
ensure that adverse impacts to wetlands
and other aquetic resources are
minimized. Many of these commentors.
as explained in more detail below, also
argued that the placement of pilings
should be regulated as a discharge of fill
material in all circumstances. end that
the proposed revisions contained
unnecessary and unjustified limitations
and exceptions. Other commentors
contended that EPA and the Corps
lacked the authority under the CWA to
regulate the placement of pilings as fill
material. Concerns were also raised by
commentors that the terms used in the
proposed revisions were not adequately
defined by the agencies.
Based upon public comments, the
agencies have made certain changes to
the language in the regulations to clarify
when the placement of pilings
constitute. a discharge of fill material
subject to regulation under Section 404.
Under the final nile. the placement of
pilings in waters of the United States
shall require a Section 404 permit when
such p lacement has or would have the
physical elfoct of a discharge of fill
material.
Th. agendas have made two major
changer to the rule in response to public
comments. First, we have deleted the
“functional use and effect” test in the
proposed rule. In addition, the final rule
does not contain an exception for
structures “traditionally constructed’
on pilings For the reasons explained
further below, we agree with
commentors who argued that the
physical effect of the placement of
pilings (as opposed to Its functional use,
or whether the structure was
traditionally placed an pilings) should
bathe focus For determining when
placement of P P Aistltutes a
discharge of fill materiaL We wgnlze.
however, that some projects geirerafly
use pilings in a manner thet does not
result in th. same ph.yalcal effect as the
placement of fill materiaL
Consequently. th. final rule notesthat
placement of pilings for these projects
(i.e., linear projects. piers. wharves, and
individual houses on stilts) generally do
not have the effect of a discharge of flU
matenal and therefore a Section 404
permit will generally not be required for
these pro ect& The Corps and EPA.
nevertheless, reserve the right on a case-
by-case basis to determine that the
proposed placement of pilings to
support a particular linear project or a
particular pier, wharf, or individual
home on stilts does heveor would have
the effect of fill material and therefore
requires Section 404 authorization.
B Need for Regulating Pilings Having
the Effect of F’aJl
The Corps adopted KGL 90—8 in order
to address projects placed on pilings in
waters of the U.S. that would have the
kinds of adverse environmental
consequences generally associated with
discharges of fill material, but which
were not subject to any environmental
review under Section 404 to avoid or
mitigate those adverse effects. For
example. in one case. a developer
proposed a large, multi-use higji rise
waterfront complex which would have
covered over 26 aores of the East River
in New York. The developer proposed
an unconventional construction
method, using pilings instead of solid
fill to support the 16 aaes of structures.
The developer apparently pursued this
course of action In order to try to avoid
the necessity of obtaining a Section 404
permit. To provide the necessary
structural support. the pilings would
have been so large and so closely spaced
that they would have physically
displaced over 20% of the bottom
surface area and the water column. In
addition to the physical displacement of
aquatic habitat due to the
extraordinarily dense spacing. the
project would have substantially altered
current and sedimentation patterns such
that at least some of the covered area
would have silted in and eventually Lest
its characteras a water of the U.S.
In another case, a 13 -ei e hotel/office
development project was proposed to be
constructed in palustrine forested
wetland In New fersey. This wetland
was identified as habitat for more th
80 spedes of birds. Induding numerous
migratory birds that had witnessed
deczeasingpopUlattO numbers due to
fragmentation and loss of habitat The
developer originally proposed that the
project be built on fill material, which
would have recjufted a. Sudluu 404
permit. but mb uentiY proposer to
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build virtually the identical project on
12 16 inch diameter pilings. While the
pilings did not need to be spaced
densely to support the structure, as in
the East River situation, the platform
supporting the 13 acre development
would have rested from 3 inches to
approximately one foot above the
wetland. The project would therefore
have prevented sunlight from reaching
almost all of the 13 acres of wetlands
underneath thestructures, thereby
making wetland vegetation growth
impossible and causing the area to lose
virtually all of its wildlife habitat value.
The project also would have contributed
to soil erosion by killing vegetation that
provide soil stability, resulting in
interference with the site’s natural flood
protection function, end Impairment to
downstream water quality. Ultimately.
the developer decided not to pursue this
project.
In both of these cases, the
environmental effects of the projects
would have been severe, comparable in
many respects to the effects that would
have resulted had the projects been built
on fill material. Adoption of RGL 90—8
reflected the Corps’ belief that allowing
such projects to proceed without any
environmental review under Section
404 would not be consistent with the
goals and objectives of the CWA or
Section 404. Regulating pilings when
the project would have the effect of fill
will therefore help insure that
potentially damaging activities
constructed on pilings In waters of the
United States are reviewed under
Section 404.
C. Comments on Agencies’ Legal
Authonty To Promulgate This Aspect of
the Regulation
Several commentors argued that EPA
and the Corps lack legal authority under
the Clean Water Act to issue the
proposed regulation. These
commentors, however, did not cite any
provision of the statute or discussion in
the legislative history to support this
contention; they simply asserted that
placement of pilings having the effect of
fill was not the same thing as a
discharge of fill material itself. We
believe, however, that today’s rule is a
reasonable exercise of our authority
under the statute.
The CWA does not define the term.
“fill material.” Nor does the CWA
specifically address, in any manner
whatsoever, whether the placement of
pilings in waters of the U.S. Is a
discharge of fill material subject to
SectIon 404 of the Act. Therefore, it Is
upto EPA and the Corps to determine
a reasonable regulatory approach to this
activity, consistent with the language
and purposes of the CWA . We have
made what we believe to be a very
straightforward determination here that
placement of pilings isa discharge of fill
material when it would have the effect
of fill material on waters of the U.S. The
agencies believe that this approach Is
entirely consistent with the language of
the Act, and helps effectuate the
underlying goal of the statute of
protecting our nation’s aquatic
resources.
Several commentors requested that
we not pursue this rulemaking but
instead wait to see how Congress
addresses pilings in the upcoming
reauthorization of the CWA. Because
this rule is entirely consistent with
existing statute, we see no reason to
delay promulgating this rule.
One commentor argued that there Is
no justification for regulating certain
pilings under Section 10 of the Rivers
and Harbors ‘Act, but not regulating
them as “fill” under the Clean Water
Act, when the pilings are pieced in
waters subject to Iunsdiction of both
Acts. This coxnmentor also suggested
that Section 10 jurisdiction does not
substitute for Section 404 urisdiction.
Today’s decision to define fill material
under Section 404 to include the
placement of certain pilings is not In
any manner related to the regulation of
pilings under Section 10. Section 10
establishes an Independent regulatory
program that regulates any work, among
other things. in navigable waters that
affects the navigable capacity of those
waters. Regulatory jurisdiction under
Section 10 does not depend to any
degree on whether the work involves a
“discharge of fill material.” Therefore.
we do not believe, as this commentor
does, that the scope of activities
regulated under Section 10 of the Rivers
and Harbors Act and Section 404 of
CWA must be the same
D. Establishment of “Effects” Tests and
Exceptions to the Regulation of the
Placement of Pilings as Fill Material
The proposed rule contained language
that would have regulated the
placement of pilings where the pilings
were essentially equivalent to a
discharge of fill material In physical
effect or in functional use and effect. In
addition, the rule would have provided
exceptions to the regulation of the
placement of pilings as fill material in
circumstances involving linear projects
or projects which have traditionally
been constructed on pilings.
Commentors expressed several
concerns with this approach. First,
several commentore contended that all
pilings, without exception, should be
regulated. One cominentor also argued
that pilings are bydefinition “fill
material” and therefore must be
regulated in all cases. Numerous
commentors were concerned that the
proposed rule was arbitrary since it
would regulate the placement of pilings
based on what type of structure is built
on the pilings. Asserting that the
functional use of the pilings Is
Irrelevant, several commentors
suggested that the agencies rely solely
on the physical effect test to determine
when the placement of pilings wculd
constitute fill material. Other
commentors disagreed. supporting the
inclusion of a functional use end effect
test.
We agree with commentors who
argued that It is not appropriate to
determine whether Section 404 applies
to the placement of pilings solely on th 0
basis of the functional use of the pilings
or whether the structures on the pilings
have traditionally been built in this
fashion. As discussed earlier, the
agencies have deleted the “functional
use and effect” test set forth In the
proposed rule. We agree with certain
commentors that this test was vague,
and that focusing on the use of the
pilings structure Is not appropriate
where our paramount concern Is the
effect of the placement of pilings on the
aquatic environment. Our primary
motivation In adopting the pilings RGL
in December 1990 end In proposing this
rule, has been to address the growiçig
practice among some project prop nents
of building large development projects
on pilings, even though they would
normally have been placed on top of fill
material. In these cases, the projects had
a clear adverse Impact on the aquatic
environment, yet no permit wee being
required for the activity. While the type
of structures built on top of pilings can
be indicative of how the pilings will
affect the aquatic environment,
ultimately it is the effect of the pilings
that is of concern to us. Focusing solely
on those effects will therefore simplify
implementation of this regulation.
For the same reasons, the final rule
provides that the placement of pilings
will not be excluded from regulation
under Section 404 based on whether the
structures they support are traditionally
constructed on pilings. The final rule
will require a Section 404 permit when
the placement of pilings has or would
have the effect of a discharge of fill
materIal; this test will be applied in all
circumstances. The final rule also
provides examples of activities that
generally have the effect of a discharge
of fill material, including the following:
projects where the pilings are so closely
spaced that sedimentation rates would
be Increased; projects in which the
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45 3O Fedarah Ra Mer / Vol. 58
No. 163/ Wednesday, August 25, 1993 A Rufr an Reg!1l i4nna
pilings themselves effectivuli, would
replace thebottom ofawateibod3r
projects involving the placement of
pilings that would reduce the reach or
Impair the flow or circulation of waters
of the United States; and projects
Involving the placllmRnt of pilings
which would result In the adverse
alteration or elimi ,u on of aquatic
functions.
We disagree, however, with the
comm ntor who argued that the
placement ole piling isby definition a
discharge of fill material in all cases end
that all pilings must therefore be
regulated under Section 404. As
discussed above, the CWA doe. not
define fill materiaL We believe that It is
reasonable to define the placement of
pilings as a discharge of fill material
when such placement would have the
effect of fill materiaL This commentor
apparently believes that EPA and the
Corps are compelled to regulat. the
placement of a piling in waters of the
United Slates as a discharge of fill
material, even where the plar .wn nt
would not have effects oi4*ted with
discharges of fill material. We see no
provision of the Clean Water Act that
would compel the adoption of such an
approach. We hav, taken what we
believ, to be a straightforward and
common-sense approach to defining
when the placement of pilings is a
diechaigs of fill material, an approach
that we believe Is entirety consistent
with the Clean Water Act.
Several uimmenton raised concern
over the exception for the placement of
pilings In linear projects. Some
commenton suggested deleting the
exception based on their concerns that
adverse Impacts totheaquatic
ecosystem would occur see result of the
construction of linear projects. One
corementor suggested that Boast
projects notbe excepted Utheproject
would “algslflcanlly alter the flow of
water or 1n ease sedimentation so that
the quantity and quality of habitat is
reduced.” One cosnmentor also
suggested that the exception for projects
that have traditionally been constructed
on pilings be eliminated, While another
commentor Was concerned that
determining what constitutes a pier or
marina is subject to “elastic
inteTpretatlons” and therefore should
not be exempted. Other commentors
supported the exception for linear
projects, end one climmentor requested
that “hot-oil” pipelines con ucted in
Alaska’s North Slope be Included In the
list of linear projects where the
placement of pilings would not require
a Section 404 permIt. Scm. coinmentors
— that the proposed eAwptlons -
were too narrow, and suggested
additional examples of activities
Involving the p1aci m u* of pilings that
should not be considered a discharge of
fill materiaL In particular, several
cornznentors suggested that the
examples of structures that would not
require a Sr pp 404 permit due to their
having been traditionally constructed on
pilings should be expanded to include
“commercial and Industrial structures
interrelated to wharves, piers, and
marinas.” Finally, one commentor
suggested that all nan-water dependent
activities in waters of the United States
be regulated under Section 404.
We believe that linear project
construction on pilings will generally
not have the physical effect of fill
material. We recognias. however, the
possibility that such projects could, in
certain cases, have the effect of fill
material and therefore should be subject
to Section 404. Thvwfurw . the regulation
does not establish a definitive nile that
linear projects will u vur have the effect
of fill material.
Nonetheless, we believe that It will be
a rare case when pilings used for linear
projects have the effect of fill material
and. require authorization under Section
404. The most significant factors in
determining whether placement of
pilings has the effect of fill material are
how densely the piles are placed, the
size of the pi T ings, and the ground
clearance of the structures built on
pilings. and the overall aieal coverage of
the structures built on pilings-
Closely spaced pilings of any size, for
example, can have th. effect of
subst ntiaIly rephidug an aquatic area.
Very large pilings. regerdlass of their
spacing. may also si’heI ntially replace
an aquatic area. Large or closely spaced
pilings can also affect current patterns
and sedimentation rates. The above-
ground clearance, and the overall weal
coverage of the structures built on
pilings, affect the suitability of the area
underneath for vegetation and wildlife.
The losses of aquatic and wetland
functions and values under these
circumstances can be the mine as would
occur from the discharge of fill material
Itself.
Most linear projects (piers, wharves,
bridges. elevated roads and pipelines,
etc.) do not require either closely spaced
pilings or ov&ly large pilings since they
generally do not support mA Iive
structures requiring greet support. Also.
although some linear projects (e.g.,
bridges end elevated reads and
pipelines) may be quite long, they
generally are not very wide, and
therefore would generally not result In
the overafl ereal coverage that can result
in substantial adverse effects on
vegetation. and suitability of th. area as
wIld1If habitat.
Although an Individual home on
pilings Is generally not “linear” In
design, It generally shares many of the
same attributes as linear projects so that
we bellevethat Itgenerally will not
have the effect of fill materiaL Most piie
supported individual houses require
neither closely spaced nor large pilings.
An Individual hom. also generally does
not cover larg. areas. Some corn rn nhtva
objected to th. term “slngle.famlly”
houses contained In the proposed rule.
We agree that this term was somewhat
vague and confusing. We have
substituted the word “individual” for
“sIngle-family’ in the final rule in order
to more effectively exclude largsr
structures (e.g., a development of
multiple single-family houses) that may
Indeed heve the effect of a discharge of
fill material, as outlined above.
We do not take the position that pile
supported linear projects and an
Individual house on pilings can never
have any adverse effects on the aquatic
ecoeystarn. Obviously, aquatic life
located where a singl, piling Is placed
will be cxuahed by the placement of the
piling. Similarly, even leu.than.rn lve
structures on widely spaced pilings
have some effects on the aquatic
environment We, however, axe
concerned with th. cases whete the
pilings end i ares they support
cause Impacts oath. aquatic
environment comparable to those which
occur with the discharge of fill material
(I.e., by thsplkeing many or all of the
aquatic functions of an area). Todays
rule will ensure that such effects do not
occur without undergoing
environmental review under Section
404 of the CWA.
We do not agre. with Cvrnmfltofl
who argued that we should expand the
proposed exceptions to Include
“commercial and Industrial structures
Interrelated to wharves, piers and
marinas.” Such, broad category of
structures could certainly Indude those
with large are. coverage or those built
on large or closely spaced pilings;
therefore we cannot find as a general
matter that these types of structures
generally would not have the effect of
fill material.
Several commentors expressed
concern over the manner In which the
effects teata were defined. Some of these
commentors suggested that the rule
should be consistent with the test
proposed for determining Whether a
discharge of dredged material ocmus ,
I.e., the rule should clarify that the
placement of pthn should be
regulated asa discharge of fill material
only when the activity would d str , es
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Federal Register I VoL 58, No. 163 / Wednesday, August 25, 1993 1 Rules and RegulatIons 45031
degrade any area of waters of the United
States. One commentor suggested that
the proposal to regulate the pL c iment
of pilings as fill material when a project
“significantly alters or eliminates
aquatic functions and values” was too
vague. Another commentor was
concerned that the proposed test of
whether the “pilings aie so closely
spaced that sedimentation rates are
increased” would be difficult to
implement given technical difficulties
In predicting sedimentation rates.
Commentors also requested that we
develop specific thresholds, such as
flow/temperature, or volume change, to
determine If pilings have the same
physical or functional effect as fill
material. For example, one commentor
recommended setting a standard volume
of piles to be used In one project below
which a project would not be regulated
because there would be “minimal
environmental Impact.” One commentor
suggested that use of the phrase
“essentially the same effects as fill” was
vague, and left open questions of how
similar the effect would have to be in
order to be “essentially the same.”
The agencies disagree with the
comments that suggested the induslon
of the same “destroy or degrade” test
proposed for the definition of
“discharge of dredged material” We
note that the definition of “discharge of
dredged material,” unlik that of the
“discharge of fill material.” historically
has contained an exclusion for de
minimis discharges associated with
“normal dredging operations.” As part
of today’s rule, the agendes are
narrowing that exclusion in a manner
that we behave carries out the purposes
and objectives of the CWA. There is no
comparable language In the agencies’
dufinition of “discharge of fill material”
and we see no Justification for adding
such language.
In response to the comment that
‘significantly alters cr eliminates
aquatic functions and values” was too
vague, we have deleted the term
“significantly.” We agree that this
qualifier would add confusion to the
determination of whether the placement
of pilings should be regulated as fill
material, and is unnecessary. We agree
with the comment that precise
predictions would be difficult. We
believe, however, that Corps and EPA
staff are able to make general
predictions regarding sedimentation
rates that may result from the placement
of pilings. Moreover, we believe that
such generalized findings would be
sufficient to determine whether a
placement of pilings would have the
effect of a discharge of fill material.
Consequently, we have retained this
part of the proposed rule without
modification.
We agree with the concern expressed
over the use of the term “large” when
referring to structures, and have deleted
It from the final rule. We have not set
specific standards or thresholds to
measure the physical effect of pilings as
suggested by comments, as we believe
the circumstances related to each
situation are so diverse that setting
specific standards would be
Inappropriate. Instead, we believe the
determination of the effect of the
placement of pilings should be
determined on a case-by-case basis
considering the facts of each Individual
case. We agree with the commentor that
“essentially” the same Is unclear, end
we have deleted use of the term
“essentially” in the final rule.
H. Additional Comments
A few commentors expressed the
need to note specifically that existing
nationwide permits are nst affected by
this rule and that activities determined
not to be subject to Section 404
regulation may still need a Section 10
permit when undertaken in traditionally
navigable waters of the United States.
With regard to the first point, today’s
rule does not modify, In any manner,
current authorizations provided by
existing nationwide permits. However,
the Corps will examine the need for
additional general permits under
Section 404 for those projects Involving
the placement of pilings that have less
than minimal idverse effects on the
environment. In addition, as specifically
provided for in today’s nile, the
placement of pilings In traditionally
navigable waters of the United States
remains subject to authorization under
Section 10 of the Riven and Harbors
Act.
Mother commentor expressed
concern that the regulation will prohibit
construction of any structures In
wetlands (either on fill material or on
pilings). This is clearly not our intent.
The Corps authorizes thousands of
projects involving fill material every
year. and the Corps expects to authorize
activities on pilings where appropriate.
One commentor proposed that a set of
quantifiable standards be developed for
how and where structures such as decks
maybe built. We believe that national
standards for pile supported structures
are inappropriate; instead, these
determinations are more properly
addressed on a case-by-case basis In the
permitting process. One commentor
suggested that pilings should be defined
to include pile caps, voltimnc. piers and
abutments which are part of linear
projects, such as bridges. We agree with
this comment.
V. Revision to the Definition of Waters
of the United States to Exclude Prier
Converted Cropland
A. Background and Rationale for the
Final Rule.
The agencies proposed to add
language in the definition of waters of
the U.S. providing that the term does
not Include prior converted (“PC”)
cropland, as defined by the National
Food Security Act Manual (NFSAM)
published by the Soil Conservation
Service (SCSI. PC cropland Is defined by
SCS as areas that, prior to December 23,
1985, were drained or otherwise
manipulated for the purpose, or having
the effect, of making production of.
commodity crop possible. PC cropland
is Inundated for no more than 14
consecutIve days during the growing
season and excludes pothold or play.
wetlands. EPA end the Corps stated in
the preamble to the proposal that we
were proposing to codify existing
policy, as reflected in RGL 90-7, that PC
cropland is not waters of the United
States to help achieve consistency
among various federal program.
affecting wetlands.
Some comrnentors supported the
proposed change. They felt that It was
important for EPA, the Corps and the
Department of Agriculture to follow
consistent procedures and policies,
because to do otherwise undermines the
credibility and effectiveness of federal
wetlands protection programs. Other
commentors opposed the change in Its
entirety or took Issue with specific
aspects of the PC cropland definition
that they believed were Inappropriate.
We have decided to retain the approach
contained In the proposed rule. The
reasons for this approach and responses
to comments opposing the proposal are
discussed below.
As stated In the preamble to the
proposal, we are excluding PC cropland
from the definition of waters of the U.S.
in order to achieve consistency in the
manner that various federal programs
address wetlands. One cominentor
argued that such consistency is not a
“goal of the CW&” and that It was
therefore not appropriate to base
wetlands policy on this consideration.
We believe, however, that effective
implementation of the wetlands
provisions of the Act without unduly
confusing thepublic and regulated
community is vital to achievIng the
environmental protection goals of the
Clean Water Act.. The CWA Is not
administered in a vacuum. Statutes
other than the CWA and agencies other
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? 3
than EPA and the Corps have become an
Integral part of the federal wetlands
protection effort. We believe that this
effort will be most effective If the
agencies involved have, to the extent
possible. consistent and compatible
approaches to insuring wetlands
protection. We believe that this rule
achieves this policy goal in a manner
consistent with the language and
objectives of the CWA.
Moreover, we believe that excluding
PC cropland from the definition of
waters of the U.S. Is consistent with
EPA’s and the Corps’ paramount
objective of protecting the nation’s
aquatic resources. By definition. PC
cropland has been significantly
modified so that it no longer exhibits its
natural hydrology or vegetation. Due to
this manipulation. PC cropland no
longer performs the functions or has
values that the area did in Its natural
condition. PC cropland has therefore
been significantly degraded through
human activity end, for this reason.
such areas are not treated as wetlands
under the Food Security Act. Similarly.
in light of the degraded nature of these
areas, we do not believe that they
should be treated as wetlands for the
purposes of the CWA.
The altered nature of PC cropland was
discussed In RGL 90-7, in which the
Corps concluded that cropped
conditions constitute the “normal
drcumstances” of such areas. The Corps
contrasted PC cropland with “farmed
wetlands.” defined by SCS as potholes
and playas with 7 or more consecutive
days of Inundation or 14 days of
saturaUo during the growing season.
and other areas wIth 15 or more
consecutive days (or 10 percent of the
growing season. whichever is less) of
Inundation during the growing season.
Because the hydrology of fanned
wetlands has been less drastically
altered than it has for PC cropland. the
Corps stated in RGI. 90-7 that farmed
wetlands continued to retain their basic
soil end hydrological characteristics.
and that such areas should therefore be
considered to be wetlands.
B. Technical Validity of Excluding PC
Croplond From Regulation Under
Section 404
Several commentors argued that it
was not technically valid to treat all PC
cropland as non-wetlands. These
cominentors pointed out that the SCS
definition of PC cropland excludes areas
that are inundated for more than 14
consecutive days a year, and4hey
argued that this requirement was
inconsistent with EPA’s and the Corps’
regulatory definition of wetlands, which
includes areas that have wetland
hydrology due to inundated or saturated
soil conditions.
We believe that these cominentors
have oversimplified the relationship
between the SCS definition of PC
cropland and the wetlands definition
under Section 404. In fact, except fore
brief period of time after the adoption of
the 1989 Federal Manual for Identifyrog
and Delineating jurisdictional Wetlands
(1989 Manual), the Section 404 program
has generally not considered such
farmed areas as meeting the regulatory -
definition of wetlands under the CWA.
In 1986. the Corps issued RGL 86-9.
which interpreted the phrase “normal
circumstances” in our regulatory
definition of wetlands as referring to an
area’s characteristics and use in the
present and recent past. Under this
interpretation, cropped areas did not
constitute wetlands where hydropbytic
vegetation has been removed by the
agricultural activity. In the 1989
Manual, EPA and the Corps modified
this approach end evaluated whether a
cropped area retained wetland
h) drology to the extent that wetland
vegetation would return if the cropping
ceased. Under the 1989 Manual.
therefore, the phrase “normal
circumstances,” as applied to
agricultural areas, meant the
circumstances that would be present
absent agricultural activity. The Corps
ceased using the 1989 Manual in
August. 1991 at the direction of
Congress (Energy and Water
Development Appropriations Act of
1992. PubI 1.. 102—580) and began using
its earlier 1987 Corps of Engineers
Wetlands Delineation Manual (1987
Manual) for wetlands delineations. EPA
is currently also using the Corps’ 1987
Manual In implementing Section 404
(See 58 FR 4995, january 19. 1993).
While the 1987 Manual does not
address application of the “normal
circumstances” phrase as it relates to
areas in agricultural production, both
agencies continue to follow the
guidance provided by RGL 90-7, which
interprets our regulatory definition of
wetlands to exclude PC aopland.
The evolution over the last several
years in the EPA and Corps policy for
delineating wetlands in agricultural
areas attests to the difficult technical,
legal and policy considerations that bear
on this Issue. We therefore disagree with
commentors who seemed to believe that
ascertaining the jurisdictional status of
PC cropland isa cut.and-dried technical
question readily resolved by reference to
generally accepted delineation
methodologies. In utilizing the SCS
definition of PC cropland for purposes
of Section 404 of the CWA. we are
attempting. in an area where there Is not
a clear technical answer, to make the
difficult distinction between those
agricultural areas that retain their
wetland character sufficiently that they
should be regulated under Section 404,
and those areas that been so modified
that they should fall outside the scope
of the CWA. As is inevitable where the
government engages In such line-
drawing. we recognize that the
particular line we have chosen to draw
Is not perfect. Two areas that are
inundated for 14 days and 15 days a
season respectively may not, i.n fact,
differ materially in terms of their
function and values. This criticism.
however, could be made no matter
where we chose to draw the line
between wetlands and non-wetlands.
We behave that the distinctions under
the Food Security Act between PC
cropland and farmed wetlands provides
a reasonable basis for distinguishing
between wetlands and non-wetlands
under the CWA. In addition to the fact
that we believe this distinction is an
appropriate one based on the ecological
goals and objectives of the CWA.
adopting the SCS approach in this area
will also help achieve the very
important policy goal of achieving
consistency among federal programs
affecting wetlands.
C. Role of SCS PC Cropland
Determinations
In the preamble to the proposal. we
stated that jurisdictional determinations
under the CWA can only be made by
EPA and the Corps. While we stated we
would accept and concur in SCS
determinations to the extent possible.
this rule does not alter the final
authority of EPA regarding CWA
jurisdiction.
This discussion in the preamble was
criticized by comn ’ientors from several
angles. Some commentors were
concerned that the proposed rule
effectively “delegated” EPA’s and the
Corps’ authority regarding CWA
jurisdiction to SCS. Some of these
commentors urged that SCS be required
to obtain Corps (or EPA) concurrence for
the purposes of making PC cropland
determinations. From the other side,
commentors argued that EPA and the
Corps should not be allowed to make an
independent judgment at a site, and
should be required to defer absolutely to
SCS determinations.
In response to these comments, we
note that today’s rule does not
“delegate” EPA’s ultimate authority for
determining the scope of geographic
jurisdiction under the CWA. At the
same time, we believe it is critical that
duplication between the SCS’s wetlands
program and the CWA Section 404
45032 Federal Register / Vol. 58, No. 163 I WednesdaY. August 25, 1993 / Rules and Regulations
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Fedesal Register / Vol. 58. No. 163 / Wednesday. August 25. 1993 / Rules and Regulations 45033
program be reduced. In that regard. we
believe that farmers should generally be
able to rely on SCS wetlands
determinations for purposes of
complying with both the Swempbuster
program and the Section 404 program.
In order to make this reliance possible.
we are working with SCS to develop
appropriate procedures. including
monitoring, for coordinating wetland
determinations by the agendas. We are
also working with SCS to develop field
guidance for implementing the 1987
Corps Manual to Clarify procedures for
identifying wetlands In areas managed
for agriculture, and are expediting
current effoils to revise the SCS’s
NFSAM to provide greeter consistency
between our wetlands delineation
procedures. Moreover, we are also
developing an interagency training
program with SCS and other agencies to
ensure that agency field staff are
properly trained, and that standard,
agreed-upon methods are utilized in
making wetland determinations.
However. In order to clarify the
relationship between determinations
made by SCS and the Corps or EPA. we
have added language to the rule Itself
staling that the final authority regarding
CWA jurisdiction remains with EPA.
We also disagree with commenters
who stated that SCS should be requited
to obtain EPA or Corps concurrence in
their PC cropland determinations. First.
since SCS Is the administering agency
under the Food Security Act, we do not
believe it would be appropriate to
require that SCS obtain the concurrence
of other federal agencies before making
determinations under that statute.
Moreover, requiring EPAiCorps
concurrence on every PC designation
made by the SCS would be an
inefficient use of our limited resources.
since a site being evaluated by SCS may
not be one where a regulated activity
will occur (i.e.. a discharge of dredged
or fill material not exempt under
Section 404(1 )). In those cases, a Section
404 delineation will not be necessary at
all, and expending our resources on
delineations in SUCh cases would be a
waste of taxpayer money. In light of
EPA’s ultimate statutory responsibility
for determining the scope of CWA
jurisdiction, we cannot satisfy
commentors who argued that we should
be required to defer absolutely to SCS
determinations. However, recognizing
SCS’s expertise in making these PC
aopland determinations, we will
continue to rely generally on
determinations made by SCS.
Many cormnentors expressed
concerns about the alleged lack of
consistency and reliability In SCS prior
converted cropland determinations.
These oommenters stated that most SCS
PC cropland determinations are made
based on aerial photos. and they argued
that site visits were necessary to
accurately delineate wetlands under
Section 404. As discussed earlier, the
SCS, In consultation with the Corps and
EPA. Is working to Improve the
consistency of Its prior converted
cropland determinations.
D Expand Exclusion to All Agricultural
Areas
Some commentors argued that the
exclusion of agricultural areas should
not be limited to land that meets the
SCS definition of PC cropland but that
the exclusion should apply to any
agricultural area that Is not inundated
for more than 14 consecutive days
during the growing season. While these
commentors believed there would be
advantages to treating all agricultural
areas similarly in this manner, we
believe that such considerations are
outweighed by the Importance of
achieving the goal of consistency with
the PC definition under the Food
Security Act.
E. incorporation of NFSAM into EPAI
Corps Regulations
Several commentors made the
procedural argument that adoption of
the NFSAM by reference into EPA’s and
the Corps’ regulations violated the
Administrative Procedure Act. These
commentors pointed out that the
NFSAM bad not yet gone through
rulemaking when it was adopted by SCS
and they argued that reference’to the
NFSAII4 in the proposed rule was not
legally adequate. Other commenters
questioned the appropriateness of
Incorporating the NFSAM into EPA’s
and the Corps’ regulatory provisions
when the agency that developed the
manual (SCSI uses it as a guidance
document. Some commentors also felt
that EPA and the Corps should retain
the flexibility to follow future revisions
to the NFSAM made by SCS.
As explained above, one of the
primary reasons that EPA and the Corps
are amending the definition of waters of
- - the United States to exclude prior
converted croplands is to ensure
consistency In the way various federal
agencies are regulating wetlands. We
believe that consistency with SCS
policy will best be achieved by our
utilizing the NFSAM in the same
manner as SCS. I.e.. as a guidance
document used in conjunction with
other appropriate technical guidance
and field testing techniques to
determine whether an area is prior
converted cropland. We also agree with
the commentors’ arguments about the —
need to be able to maintain consistency
with SCS in the future when revisions
are made to the NFSAM; incorporating
one version of the manual into EPA’s
and the Corps’ regulations would Impair
our ability to follow future revisions to
the NFSAM in administering Section
404. The final rule, therefore, continues
to exclude prior converted cropland
from the definition of waters of the
United States, but does not specifically
incorporate by reference the provisions
of the NFSAM. EPA and the Corps will.
however, implement this exclusion in a
manner following the guidance
contained in the NFSAM and
appropriate field delineation
techniques. and will continue to rely. to
the extend appropriate, on
determinations made by SCS. The Corps
and EPA will continue to work with
SCS on procedures for implementing
the prior converted cropland r.crtion of
the NFSAM. We will also issue policy
guidance directing our field stiff to
utilize the guidance in the NFSAM
when determining the presence of
wetlands on agricultural lands.
By codifying our existing policy that
prior converted croplands are not waters
of the U.S., the final rule strengthens the
regulatory basis for not regulating these
areas under Section 404. The fact that
we have not incorporated by reference
the actual provisions of the NFSAM into
our rules does nQt undercut our ability
to maintain this consistency. Rather, as
explained above, we believe that
utilizing the NFSAM as a guidance
manual, as it Is used by SCS. will
enhance consistency in the
administration of the Food Security and
Clean Water Act programs.
F. Section 404(J) ExempLioris
Some commenlors expressed concern
that codifying Regulatory Guidance
Letter 90—7 would eliminate all
exemptions for agricultural activities
under Section 404(0(1 )(A) of the Act.
Other commentors felt that the rule was
not needed and that prior converted
croplands should be considered exempt
under the Section 404(0 normal farming
activities exemption. -
As previously Mated in this preamble,
today’s rule will not eliminate or in any
way effect the exemptions for normal
farming. ranching. or silviculture
activities in Section 404(0(1). Moreover,
the exemptions apply only to discharges
and not to the Issue of whether an area
is within the geqgraphlc scope of
Section 404.
G. Criteria for Abandonment
Some commentors expressed
concerns that the abandonment rule was
not dear. A few commentors opposed
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45034 Federal Register / Vol. 58, No. 163 / Wednesday. August 25, 1993 I Rules and Regulations
the use of prior converted oroplands for
Lon.agrlcultural uses. One commentor
bbjected to the fact that there Is no
mechanism providing for “recapture”
Into Section 404 jurIsdiction of those
prior converted oplands that revert
back to wetlands. One commentor
objected to the requirement that a prior
converted oropland Is considered
abandoned unless It Is used for the
production of an agricultural
commodity at a regular interval, stating
that It should Include use for any
agricultural production. Including hay
and pasturelancL
The Corps and EPA will use the SCS
provisions on “abandonment,” thereby
ensuring that PC opland that is
abandoned within the meaning of those
provisions and which exhibit wetlands
characteristics will be considered
wetlands subject to Section 404
regulation. While we agree that SCS’a
abandonment provisions may be
complex. SCS has been applying these
provisions for several years In
Implementing the Swampbuster
program, and farmers have become
familiar with the standards used to
determine whether a property has been
“abandoned.” UEPA and the Corps
were to use dlffme t abandonment
provisions In Implementing today’s
yule. we believe the resulting
Inconsistency between the two
regulatory programs would serve only to
aeate confusion as to which standards
are applicable to the same parcel of
property. In response to commentors
who opposed the use of PC croplands
for non-agricultural uses, the agencies
note that today’s rule centers only on
whether an area is subject to the
geographic scope of CWA jurisdiction.
This determination of CWA jurisdiction
Is made regardless of the types or
impacts of the activities that may occur
in those areas. The agencies also note
that todays rule will provide a
merhiinlain for “recapturing” Into
Section 404 jurisdictIon those PC
aoplands that revert back to wetlands
where the PC cropland has been
abandoned. Finally, In response to the
request that aPC cropland not be
considered abandoned If the area is
used for any agricultural production.
regardless of whether the crop Is an
agricultural commodity. we note that
SCS’s abandonment provisions do
recognize that en area may be used for
other agricultural activities and not be
considered abandoned. In particular, PC
. ropland which now meets wetland
irlteria I, considered to be abandoned
unlean For once In every five years the
area has been used for the production of
an agricultural commodity, or the area-
has been used and will continue to be
used for the production of an
agricultural commodity In a commonly
used rotation with aquaculture, grasses.
legumes or pasture production.
H. Grandfather Clause
One commentor said that RCL 90-7
results In the retroactive grandfatherlng
of Illegal drainage activities between
1977 and 1985. It has been and
continues to be the position of the Corps
and EPA that unauthorized discharge
activity cannot eliminate Section 404
jurisdiction. Therefore, wetlands that
were converted to prior converted
cropland between 1972 and 1985 as a
result of unauthorized discharges of
dredged or fill material do not constitute
“prior converted cropland” within the
meaning of today’s rule and remain
“waters of the United States” subject to
Section 404 regulation.
VL Environmental Documentation
Some commentors wanted the Corps
to prepare an Environmental Impact
Statement (EIS), arguing that this
rulemaking constitutes a major federal
action significantly affecting the quality
of the human environment Some
commenters felt that since these rules
protected wetlands, an BS would be
needed to determine such
environmental effects as mosquito
infestation, odors, and gases. Others
wanted an EIS prepared because they
felt that these rules would result in a
loss of wetlands. One commentor
requested that the Corps prepare an EIS
for farming, forestry and ranching
disturbances and other questionable
wetland Impacts before proceeding with
further rulemakint.
SectIon 511(c) of the CWA provides
that, except for certain actions not
relevant here, no action by EPA
constitutes a major federal action
significantly affecting the quality of the
human environment with the meaning
of NEPA. In this joint rulemaking by
EPA and the Corps, these two agencies
are making substantively identical
revisions to their regulations in order to
better carry out the purposes of Section
404 of the CWA. EPA is exempt from
NEPA under SectIon 511(c), and we
believe that, under the circumstances of
this joint rulemaking. the Corps is
exempt as well.
Nonetheless. the Corps has prepared
an environmental assessment and
determined that there will not be a
significant impact on the quality of the
hunw environment This assasement Is
contained in the record for this
rulemiiHng . Consequently, an EIS has
not been prepared by the Corps.
Furthermore, appropriate environmental
documentation, Including an EIS when
required. is prepared by the Corps for all
permit decisions.
VU. Executive Order 12291 and the
Regulatory Flexibility Act
Numerous commentors indicated that
a regulatory Impact analysis under
Executive Order 12291 should be done
because the rule would allegedly cause
an Increase In the Corps’ workload and
In costs to permit applicants and
because the rule will allegedly result in
additional encumbrances or burdens on
the public in the form of tax Increases,
project delays. project scrutiny and
increased project costs. One commentor
felt that agency resources would be
diverted from larger, more significant
projects by this rule. EPA and the Corps
do not believe that this regulation meets
the definition of a major rule under
Executive Order 12291, and we
therefore have not prepared a regulatory
Impact analysis for the rule.
Some commentors also argued that
the agencies were required to perform a
Regulatory Flexibility Analysis for this
regulation under the Regulatory
Flexibility Ad. 5 U.S.C. 601-812. EPA
and the Department of the Army certify.
pursuant to Section 605(b) of the
Regulatory Flexibility Act of 1980. that
this regulation will not haves
significant impact on a substantial
number of entities. Therefore we have
not prepared a regulatory flexibility
analysis for this rule.
EPA and the Corps do not believe that
this regulation will have a significant -
Impact on a substantial number of small
entities first because most of the
components of this rule merely codify
current agency policies and these
aspects of the rule will therefore not
result In any Increased regulatory
burden on the public Including small
businesses. Since 1990, the Corps has
followed the policy under RGL 90-5 of
regulating mechnnl2ed landclearlng
activities under Section 404. SImilarly.
RGL 90-8 established, In December
1990, the Corps policy of regulating the
placement of plUnge when the activity
wou ldhavetheeffectofdlscharg e offi l l
material. The amendment of the
definition of waters of the United States
In today’s rule also codifies the
agencies’ current policy of not
regulating prior converted cropland
under Section 404, as reflected by Corps
RGL 90-7. RGL 90-7, moreover, eased
the regulatory burden of the Section 404
program by excluding prior converted
cropland from coverage under this
provision.
EPA and the Corps believe, moreover,
that coverage of discharges associated
with ditching. chaiinellzatlon and other
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Federal Register I Vol. 58, No. 163 / Wednesday. August 25. 1993 / Rules and Regulations 45035
excavation activities that would destroy
or degrade waters of the United States
should not result in a significant Impact
on a substantial number of smell
entitles. Prior to today’. rule, the Corps
has uniformly regulated these activities
where they were accomplished by
excavating dredged material and
sidecasting the material in adjacent
waters of the United States. Conducting
these activities without sidecasting
dredged material is technically difficult
and costly, and operators unable or
unwilling to pay the costs to perform
their activities in this manner have
therefore already been subject to the
Section 404 program. In addition, the
practices of Corps districts have varied
in this area, with some districts already
regulating ditching, rl *nnelizatlon and
other excavation activities where
dredged material was not sldecast.
Therefore, we do not believe that the
incremental regulatory burden
associated with this aspect of the
reguLation should be significant.
Moreover, EPA and the Corps have
included a provision in this regulation
that would minimize any increased
regulatory burden that may result from
subjecting some activities to Section 404
jurisdiction for the first time. The rule
does not regulate discharges of dredged
material associated with activities that
would not destroy or degrade waters of
the United States. Establishing this
threshold for requiring a Section 404
permit should be relevant for small
entities in most instances, since they
may be more likely than large
operations to engage in minor activities
having only a do minimis Impact on the
aquatic ecosystem. Some commentors
believed that there would be regulatory
impacts on the public due to regulating
activities such as mowing, certain
snagging activities, pumping, and
vehicular traffic. While such activities
may occur in waters of the United
States, they generally do not involve a
discharge of dredged material or would
not have the effect of destroying or
degrading a water of the United States
and therefore would not trigger the
requirement of a Section 404 permit.
In addition, as discussed elsewhere in
this preamble, the Corps Intends to
issue general permits (regional or
nationwide) for newly regulated
activities that would have a minimal
individual or cumulative Impact on the
aquatic environment. Issuance of
general permits should further reduce
any regulatory burden associated with
complying with today’s rule.
Finally, one primary purpose of the
Regulatory Flexibility Act is to
encourage agencies to explore regulatory
alternatives that would ininimLv.a
Impacts of the regulatory scheme on
small entities. See 5 U.S.C. 604(a)(2)
(requiring that final regulatory
flexibility analysis include “a
description of each of the significant
alternatives to the rule’ * designed
to minimize any significant economic
impact of the rule on small entities”).
The only issue addressed in this
rulemaking, however, is whether a
discharge of dredged or fill material will
require a Section 404 permIt. Under
Section 404. there are therefore only two
regulatory “alternatives” available to the
agencies: either a Section 404 permit Is
required or It Is not. Section 404 does
not authorize any other “intermediate”
regulatory control mechanisms for
regulated discharges that the agencies
could consider establishing for small
entities. Because, under Section 404, the
requirement to obtain a permit Is the
sole tool for regulating activities covered
by this provision, we do not believe that
there are less burdensome alternatives
available to achieve the objectives of
this rulemaking Rather, we believe that
the appropriate forum for exploring
means of reducing impacts on small
businesses is through the permitting
process itself (e g.. through issuance of
general permits where appropriate, and
by tailoring permit requirements to the
severity of the environmental harm,
which in turn may correlate with the
size of the entity undertaking the
project). As explained previously, the
agencies have considered in this
rulemaking alternatives that may,
indirectly, have resulted in less of a
regulatory burden on small entities (e.g..
by excluding from regulation activities
associated with a discharge of dredged
material that would not have a
“significant” effect on the environment).
For the reasons explained in this
preamble, however, we rejected these
alternatives as not being consistent with
the language, goals and/or objectives of
Section 404. Therefore, we believe that
the final rule reflects a regulatory
approach that appropriately meets the
requirements of Section 404.
Note 1.—The term “he” and its derivatives
used In these regulations are generic and
should be censidered as applying to both
male and female.
List of Subjects
33 CFR Part 323
Navigation, Water pollution control.
Waterways.
33 CFR Part 328
Navigation, Water pollution control,
Waterways. -
40 C’FR Parts 110,112, 116, 117, 122,
230,232, and 401
Wetlands, Water pollution control.
Dated: August 19, 1993.
Carol Pet Browner,
Adm,nisfrrzt or, Environmental Protection
Agency.
G. Edward Dick .y,
Act ag Assistant S.cretazy of the Army (Civil
Works), Department of the Army.
Accordingly, 33 R parts 323 and
328 and 40 CFR parts 110, 112. 116,
117, 122, 230, 232 and 401 are amended
as follows:
33 CFR Orapter 11.-Corps of Engineers,
Department of the Army
PART 323—PERMITS FOR
DISCHARGES OF DREDGED OR ALL
MATERIAL INTO WATERS OF ThE
UNITED STATES
1. The authority citation for part 323
continues to read as follows:
Authorlty 33 USC 1344.
2. Section 323.2(d) is revised to read
as set forth below.
3. Section 323.2(e) is amended by
adding a sentence at the end that reads
as set forth below.
4. Section 323.2(1) Is amended by
adding a sentence at the end that reads
as set forth below.
* 323.2 DefinItions.
• • • .
a
(d)(i) Except as provided below In
paragraph (d)(2). the term discharge of
dredged material means any addition of
dredged material into, including any
redeposit of dredged material within,
the waters of the United States. The
term includes, but is not limited to, the
following
(I) the addition of dredged material to
a specified discharge site located In
waters of the United States;
(ii) the runoff or overflow from a
contained land or water disposal area;
and
(lii) any addition, including any
redeposit, of dredged material,
including excavated material, into
waters of the United States which is
incidental to any activity, including
mechanized landclearlng, ditching,
channelizatlon, or other excavation.
(2) The term discharge of dredged
materioi does not include the following
(i) discharges of pollutants into waters
of the United States resulting from the
onshore subsequent processing of
dredged material that is extracted for
any commercial use (other than fill).
These discharges are subject to section
402 of the Clean Water Act even though
‘ theextractlonanddeposltofsuch
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45038 Federal Register! VoL 58.
No. 163 / Wednesday, August 25, 1993 I Rules and Regulations
material may require a permit from the
Corps or applicable state Sectl 404
11 dv1tlos that involve only the
cutting or removing of vegetation above
the ground (e.g., mowing, rotary cutting,
and rhAinnawing) where the activity
neither substantially disturbs the root
system nor involves merhAnized
pushing, dragging, or other similar
activities that redeposit excavated soil
material.
(3) Section 404 authorIzation Is not
req uired for the followIn
(I) any Incidental addlilon, Including
redeposit of dredged material
associated with any activity that does
not have or would not have the effect of
destroying or degrading an area of
waters of the United States as defined In
paragraphs (d)(4) end (d)(5) of this
section. however, this exception does
not apply to any person preparing to
undertake mechanized landclearing,
ditching. diannelizatlon and other
excavation activity In a water of the
United States, which would result In a
redeposit of dredged material, unless
the person demonstrates to the
satlsfaction of the Corps. or A as
appropriate, prior to commencing the
activity Involving the discharge, that the
activity would not hav, the effect of
destroying or degrading any area of
waters of the United States, as defined
In paragraphs (d)(4) and (d)(5) of this
section. The person proposing to
undertake mechaninad Iandclearlng,
ditching. cbannelfratlon or other
ea vation activity bears th. burden of
d onstratlng that such activity would
not destroy or degrade any ares of
waters of the United States.
(Ii) Incidental movement of dredged
material occurring during normal
dredging operations, defined as
dredging for navigation in navigable
waters of the United States, as that term
Is defined In part 329 of this chapter.
with proper authorIzatIon from the
Congress and/or the Corps pursuant to
pert 322 of this C2iapter however, this
exception Is not applicable to dredging
activities in wetlands, as that term is
defined at section 328.3 of this Qiapter.
(111) those discharges of dredged
material associated with ditching.
rhsinn,ljzatjon or other excavation
activities In waters of the United States.
Including wetlands, for which Section
404 authorIzation was not previously
required, as determined by the Corps
district In which the activity occurs or
would o ir, provided that prior to
August 25. 1993. the w cavelion activity
commimr d or was irader contract to
comm u work and that the activity
will be completed no later than August
25.1994. This provision does not apply
to discharges associated with
mei han4zed landclearlng. For those
excavation activities that occur on an
ongoing basis (either continuously or
periodically). e.g.. mining operations.
the Corps retains the authority to grant.
on a caseby-case basis, an extension of
this 12.month grandfather provision
provided that the discharger has
submitted to the Corps within the 12-
month period an individual permit
application seeking Section 404
authorization for such excavation -
activity. In no event can the grandfather
period under this paragraph extend
beyond August 23. 1993.
(lv) certain discharges, such as those
associated with normal farming.
silviculture. and ranihing activities, are
not prohibited by or otherwise subject to
regulation under SectIon 404. See 33
CFR 323.4 for discharges that do not
required permits.
(4) For purposes of this section, an
activity associated with a discharge of
dredged material destroys an area of
waters of the United States If it alters
the area in such a way that it would no
longer be a water of the United States.
(NotE Unauthorized discharges into waters
of the United Slates do not eliminate Clean
Water Act juitsdldloa. even where such
unauthorized discharge. have the effect of
destroying waters of the United States.)
(5) For purposes of this ectlon. an
activity associated with edischarge of
dredged material degrades an area of
waters of the United States If It has more
than a de minimis (i.e., inconsequential)
effect on the ares by causing an
identifiable individual or cumulative
adverse effect on any aquatic function.
(eP * See S 323.3(c) concernIng the
regulation of the placnment of pilings in
waters of the United States.
(0* 5ee 5323.3(c)concerningthe
regulation of the placement of pilings In
waters of the United States.
• • S S a
5. Section 323.3(c) Is added to read as
follows:
; 3.3 DIscharges ,.quklng permIts.
• * S S S
(c) Pilings. (1) Placement of pilings In
waters of the United States constitutes
a discharge of fill material and requires
a Section 404 permit when such
placement has or would have the effect
of a discharge of fill material. Examples
of such activities that have the effect of
a disrhi rge of fill material Include, but
are not limited to, the following:
Projects where the pilings are so closely
spaced that sedimentation rates would
be Increased; projects In which the
pilings themselves effectively would
replace the bottom of a waterbody
projects involving the placement of
pilings that would reduce the reach or
Impair the flow or circulation of waters
of the United States; and projects
involving the placement of pilings
which would result In the adverse
alteration or elimination of aquatic
functions.
(2) Placement of pilings in waters of
the United States that does not have or
would not have the effect of a discharge
of fill material shall not require a
Section 404 permit. Placement of pilings
for linear projects. such as bridges.
elevated walkways, and powerline
structures, generally does not have the
effect of a discharge of fill material.
Furthermore, placement of pilings In
waters of the United States for piers,
wharves, and an individual house on
stilts generally does not have the effect
of a discharge of fill material. All
pilings, however, placed in the
navigable waters of the United States, as
that term is defined In part 329 of this
chapter. requIre authorization under
section 10 of the Rivers and Harbors Act
of 1899 (see part 322 of this chapter).
PART 328—DEFINITION OF WATERS
OF THE UNITED STATES
6. The authority citation for part 328
continues to read as follows:
Autheiity 33 U.S C. 1344.
7. Section 328.3(a) Is amended by
adding a new paragraph (a)(8) that reads
as follows:
5328.3 D ldons.
• S • S •
(a) S S
(8) Waters of the United States do not
include prior converted cropland.
Notwithstanding the determination of
an area’s status as prior converted
copland by any other federal agency.
for the purposes of the Clean Water Act.
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
• • a S S
40 G R l aptur 1-Envlroceassasl
Protsction Agency
PART 110—DISCHARGE OF CL
1. The authority citation for part 110
continues to read as follows:
Autheafty 33 Us C. 1321 (bX3) and (bill)
end 1361(a); 33 U.S C. 1517(m)(3).
2. SectIon 110.1. definition of
navigable waters. Is amended by adding
three new sentences of concluding text
at the end of the definition to read as
follows:
5110.1 OsOnhtloes.
* a • •
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385.
Federal Register / VoL 58, No. 163 / Wednesday, August 25, 1993 I Rules and Regulations 4503
Navigable waters do not Include prior
converted opland. Notwithstanding
the determination of an area’s status as
prior converted copland by any other
federal agency, for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA.
a * * * *
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
continues to read as follows:
Authorlty 33 USC. 1251 eiseq.
2. SectIon 112.2(k), definItion of
navigable waters, Is amended by adding
three new sentences of concluding text
at the end of the definition to read as
follows:
112.2 D.ftnltlons.
a a S a
a
Navigable waters do not Include prior
converted aopland. Notwithstanding
the determination of an area’s status as
prior converted aopland by any other
federal agency, for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA.
S S a a a
PART 116—DESIGNATION OF
HAZARDOUS SUBSTANCES
1. The authority citation for part 116
continues to read as follows:
Authority 33 U S.C. 1521 et seq
2. In S 116.3, the definition of
navigable waters Is amended by adding
three new sentences of concluding text
at the end of the definition, as set forth
below, and the definitions are placed In
alphabetical order.
1163 DefnitIcna.
* a * a
a
Navigable waters do not include prior
converted cropland. Notwithstanding
the determination of an area’s status as
prior converted crop land by any other
federal agency. for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jtutsdiction -
remains with EPA.
a a a . a
PART 117—DETERMINATION OF
REPORTABLE QUANTITIES FOR
HAZARDOUS SUBSTANCES
1. The authonty citation for part 117
continues to read as follows:
AutharIty33U.SC . 1251 ef seq
2. The definition of navigable waters.
§ 117.1(i), Is amended by adding three
new sentences of concluding text at the
end of the definition to read as follows:
•117.1 Definitions.
a S • S
a
Navigable waters do not include prior
converted cropland. Notwithstanding
the determination of an area’s status as
prior converted cropland by any other
federal agency, for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA.
• a * a S
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Athority 33 U.S.C. 1251 .t seq
2. SectIon 122.2, definition of waters
of the United States, is amended by
adding three new sentences at the end
of the concluding text of the definition
to read as follows:
*lfl.2 DefInitions.
a a 5 5
• a Waters of the United States do
not include prior converted cropland.
Notwithstanding the determination of
an area’s status as prior converted
cropland by any other federal agency,
for the purposes of the Clean Water Act,
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
a a S S a
PART 230—SECTION 404{bXl)
GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR
FILL MATERIAL
1 ‘1 he authority citation for part 230
continues to read as follows:
Authority: 33 U S C 1344(b) and 1361(a)
2. Soction 230.3(s), definition of
waters of the United Slates, is amended
by adding three new sentences of
concluding text at the end of the
definition to read as follows:
• 23 .3 DefintlIons.
S a a a
a
Waters of the United States do not
inckde prior converted cropland.
Not athstanding the determination of
an area’s status as prior converted
cropland by any other federal agency,
for the purposes of the Clean Water Act,
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
a a a 5
PART 232—404 PROGRAM
DEFINm0NS; EXEMPT ACTIVITiES
NOT REQUIRING 404 PERMITS
1. The authority citation for part 232
continues to read as follows:
Authorlty 33 USC 1344.
2. In § 232.2, the definition of
discharge of dredged mat errol is revised
to read as set forth below.
3. In S 232.2, the definition of
discharge of fill material Is revised to
read as set forth below.
4. In 5232.2, the definition of waters
of the United States Is amended by
adding two new sentences of
concluding text at the end of the
definition to read as set forth below.
5232.2 Dsflnttlons.
• 5 5 5 5
Discharge of dredged material. (1)
Except as provided below In paragraph
(2), the term discharge of dredged
material means any addition of dredged
material Into, Including any redeposit of
dredged material within, the waters of
the United States. The term Includes,
but Is not limited to. the following:
(I) The addition of dredged material to
a specified discharge site located In
waters of the Untied States;
(ii) The runoff or overflow, associate
with a dredging operation, from a
contained land or water disposal area;
and
(iii) Any addition. Including any
redeposit. of dredged material,
including excavated material, Into
waters of the United States which is
Incidental to any activity, Including
mechanized landclearing, ditching,
channelizatlon, or other excavation.
(2) The term discharge of dredged
material does not Include the following
(i) Discharges of pollutants into
waters of the Unitod States resulting
from the onshore subsequent processing
of dredged material that Is extracted for
any commercial use (other than fill).
These discharges are subject to section
402 of the Clean Water Act even though
the extraction and deposit of such
material may require a permit from the
Corps or applu.sble state.
(ii) Activities that Involve only the
cutting or removing of vegetation above
the ground (e.g., mowing, rotary cutting.
and cha r&sawing) where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing. dragging, or other similar
‘activities that redeposit excavated soil
material.
(3) Section 404 authorIzation Is not
required for the following:
(I) Any incidental addition. lncludiL
redeposit, of dredged material
-------
45038 Federal Register! Vol. 58, No. 163 I Wednesday. August 25. 1993 / Rules and RagWaUons
ted with any activity that does
wmild not h the effect of
ring or degrading en area of
waters of the U.S as defined in
paragraphs (4) and (5) of this definition;
however, this exception does not apply
to y person preparing to undertake
mechanized landcleaxing. ithing .
chii nelizatiOn and other excavation
activity in a water of the United States.
which would result In a redeposit of
diedged material. unless the person
demonstrates to the satisfaction of the
Corps. or EPA as appropriate, prior to
commeflang the activity Involving the
discharge, that the activity would not
have the effect of destroying or
degrading any area of waters of the
United States, as defined In paragraphs
(4) and (5) of this definition. The person
proposing to undertake mechanized
landcleaflng. dirrhlng, i4uinnelIzØtIOfl
or other e vst1on activity bears the
burden of demonstrating that such
activity would not destroy or degrade
any ares of waters of the United States.
(U) Ind’i” 1 movement of dredged
material occurring during normal
dredging operations, defined as
dredging navigation in navigaWe
wafers of the United 5f f54 , as that term
I. defined in 33 CIR part 329. wIth
authorization from the Congress
Carps pursuant 1o33 R part
owever. this exception Is not
able to dredging activities In
wetlands. as that term Is defined at
S 232.2(r) of this (2iapter.
(UI) Those discharges of dredged
material assodated with ditching.
channeliratlon or other excavation
activities In waters dthe United States.
including wetlands, for which Section
404 authorIzation was oct prevIously
required, U det xmIned by the Corps
district in which the activity oonun or
would oomir. provided that prior to
August 25.1903. the excavation activity
commenced or was under contract to
conunenca work end that the activity
will be completed no later that August
25.1994. ThIs provision does not apply
to discharges associated with
merhanized Iandcleenng. Far those
excavation activities that oor*u on an
ongoing beds (either continuously or
periodically). e.g.. mining operations.
the Corps retains the authority to grant.
on a case-by-case bests. en extension of
this 12-month grandfather provision
provided that the discharger has
submitted to the Corps within the 12-
month period an Individual permit
application seeking SectIon 404
authwlzatlofl far such mtcavathm
rity. In no event can the grandfather
period under this paragraph extend
beyond August 25. 1996.
(iv) Certain discharges. such as those
associated with normal farming.
ailvlculture. and ranching activities, are
not prohibited by or otherw subject to
regulation under Section 404. See 40
CFR 232.3 for discharges that do not
require porTfl Its.
(4) For purposes of this section. an
activity associated with a discharge of
dredged material destroys an area of
waters of the United States If It alters
the area in such a way that it would no
longer be a water of the United States.
Noie Ueeuthouimd discharges Into waters
of the United States do not eliminate Clean
Water Act lurladIdiOn. even where such
unauthorized discharges have the effect of
destroying waters of the United States.
(5) For purposes of this section. an
activity associated with a discharge of
dredged material degrades an area of
waters of the United States if It has more
than ad. ininimis (I.e., inconsequential)
effect on the area by causing an
Identifiabl, individual or cumulative
adverse effect on any aquatic function.
Discharge of fill matenoi. (1) The term
dischorge of fill material means the
addition of fill material Into waters of
the United States. The term generally
includes, without limitation, the
following activities: Placement of fill
that is necessary for the construction of
any structure in a water of the United
States; the building of any structure or
Impoundment requiring rock, sand, dirt.
or other material for its construction;
site-development fills for reaeational.
Industrial, commercial, residential, and
other uses: causeways or road fills;
dams and dikes; artificial Islands;
property protection and/or reclamation
devices such as riprap. groins. seawalls.
breakwaters, and revetments; beach
nourishment: levees: fill for structures
such as sewage treatment facilities.
Intake end outfall pipes associated with
power plants and subaqueous utility
lines; and artificial reefs.
(2) In addition, placement of pilings
In waters of the United States
constitutes a discharge of fill material
and requires a Section 404 permIt when
such placement has or would have the
effect of a discharge of fill material.
Examples of such activities that have
the effect of a discharge of fill material
include, but are not limited to, the
following: Projects where the pilings are
so closely spaced that sedimentation
rates would be Inceased; projects in
which the pilings themselves effectively
would replace the bottom of a
waterbody projects involving the
placement of pilings that would reduce
the reach or impair the flow or
circulation of waters of the United
States; and projects Involving the
placement of pilings which would result
in the adverse alteration or elimination
of aquatic functions.
(i) Placement of pilings in waters of
the United States that does not have or
would not have the effect of a discharge
of fill material shall not require a
Section 404 permIt. Placement of pilings
for linear projects. such as bridges,
elevated walkways. and powerline
structures, generally does not have the
effect of a discharge of fill material.
Furthermore, placement of pilings In
waters of the United States for piers.
wharves, and an individual house on
stilts generally does not have the effect
of a discharge of fill material. All
pilings, however, placed In the
navigable waters of the United States, as
that term Is defined in 33 Q R part 329.
require authorization under section 10
of the Rivers and Harbors Act of 1899
(see 33 CFR part 322).
(ii) (Reservedi
• • a • •
Waters of the United States. *
Waters of the United States do not
include prior converted cropland.
Notwithstanding the determination of
an area’s status as prior converted
cropland by any other federal agency.
for the purposes of the Clean Water Act.
the final authority regarding Clean
Water Act jurIsdiction remains with
EPA.
. a
• • a
PART 401—EFFLUENT GUIDELINES
AND STANDARDS
1. The authority citation for part 401
continues to read as follows:
Authority: 33 U S C. 1251 et seq.
2. Section 401.1 1(1), definItion of
navigable waters, Is amended by adding
two new sentences at the end of the
definition to read as follows:
5401.11 G.neraldetiflitlofla.
• a a a S
( I)’ Navigable waters do not
Include prior converted cropland.
Notwithstanding the determination of
an area’s status as prior converted
cropland by any other federal agency.
for the purposes of the Clean Water Ad.
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
• a a S •
IPR Doc. 93—20530 PIled 8—24—93; 8.45 am)
esee
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‘Pt .
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111-4
Environmental Protection Agency
58 8172 - Clean Water Act; Section 404 Tribal Regulations
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8172 Federal Register / Vol. 58 .
No. 27 / Thursday. February 11. 1993 I Kules and Kegulatlons
ENVIRONMENTAL. PROTECTiON
AGENCY
40 CFR Perta 232 and 233
(FRL—4121—23
RIN 2040-AB69
Clean Water Act; Section 404 TrIbal
Regulation.
AGENCY: Environmental Protection
Agency (EPA).
ACTiON: Final rule.
SUMMARY: This rule amends the Section
404 State Program Regulations by
adding the procedures by which an
Indian Tribe may qualify for treatment
as a State In order to be eligible to
subsequently apply for assdznptlon of
the dredge and fill permit program
under sectIon 404 of the Clean Water
Act, and the Clean Water Act Section
404 Program Definitions and Permit
Exemptions by adding new definitions
for “Federal Indian reservation”,
“Indian Tribe”, and “States”. This
regulation satisfies the statutory
provisions in sectIon 518 of the Clean
Water Act with respect to the 404
program and, In part. sectIons 308 of
- 309 of the Clean Water Act.
EFPECTTVE DATE: The rule shall be
effectivO March 15, 1993.
ADDRESSES: The administrative record
for this rule may be inspected at 499
South Capitol Street, SW., room 711,
Washington. DC
FOR RIRTHER INFORMATION CONTACT:
Lori WilliAms, Wetlands Division
(AIO4F), Environmental Protection
Agency, 401 M Street.-SW., Washington.
DC 20460, 202—260—5043.
SUPPLEMENTARY INFORMATION:
Information in this preamble Is
organized as follows:
A. Background
B. Response to Public t ,miments
1. Treatment of Tribes as States
2. OtherCoinn Anb
c. Changes In the Proposed Rule
U. State 404 PermIt Program Approval
Requirements
B. Regulatory Impact Analysis
F. Simplification of EPA Process for
Implementing Statutory Authority to
Treat Tribes as States
C. Paperwork Reduction Act
a Regulatory Fla billty Act
A. Background
The over-all objective of the Clean
Water Act (CWA) as amended Is to
restore end maintain the chemical,
physical and biological Integrity of the
NatIon’s water. The t o national goals
the Act established In 1972 Include: (1)
PiI nInstIng the discharge of pollutants
into navigable waters and (2) achieving
an Interim water quality level that
would protect fish, shellfish, and
wildlife while providing for recreation
in and on the water wherever attainable.
Since 1972. sectIon 101(b) of the CWA
makes It national policy to recognize
and preserve the States’ primary
responsibility to meet these goals. Over
the past 20 years. the Agency has
focused on developing standard
operating relationships with the States
and localities.
In 1972, Congress established the 404
permit program to regulate discharges of
dredged or fill material into waters of
the United States. Congress, in the 1977
Amendments to the Federal Water
Pollution Control Act (the Clean Water
Act), gave States the option of assuming
the 404 permIt program in certain
waters of the State. subject to EPA
approval, if a State assumes this
responsibility. Its jurisdiction includes
all waters within Its border except: (1)
Those which are sub}ect to the ebb and
flow of the tide plus adjacent wetlands
and (2) waters which are presently used
or may be susceptible to use (through
reasonable Improvement) to transport
Interstate or foreign commerce plus
adjacent wetlands. The Corps of
Engineers retains jurisdiction over all
waters which States cannot assume.
The Act prescribes minimum
requirements which States must meet
before exercising their option to assume
the program and assigned program
approval and oversight responsibility to
EPA. On May 19, 1980. EPA
promulgated regulations to establish
procedures and criteria for approvall
disapproval of 404 State programs and
for monitoring a State program after
program approval. In response to State
concerns about rigid mandatory
requirements, excessive paperwork
burdens, intrusive Federal oversight,
and general lack of flexibility, EPA
promulgated revised regulations on June
6,1988. These revisions provide the
States more flexibility in program
design and administration while still
meeting the requirements and objectives
of the Act. Once a Tribe Is determined
tobeqtiallfiedtobetreatedasaState ,
the Tribe must meet the requirements
for an approvable program specified in
40 RPart 233,
Congress, through amendments to -
both CWA in 1987 and the Safe
Drinking Water Act (SDWA) in 1988,
has authorized EPA to treat Indian
Tribes as States under various
provisions of these Acts. Amendments
to both statutes required the Agency to
promulgate regulations that would
establish exactly how Tribes would be
treated as States. Specifically, the
February 4, 1987 Amendments to CWA
added a new section p18, which
requires EPA to pron ulgate regulations
specifying how the Agency will treat
qualified Indian Tribes as States for the
purposes of, among others, the section
404 Dredge and Fill Program described
above, to the extent that EPA determines
such regulations are necessary to
Implement section 518.
On November 29, 1989, EPA proposed
amendments to the SectIon 404 State
Program Regulations in response to
CWA section 518 requirements (see 54
FR 49180). The proposal Included an
amendment that would add procedures
by which an Indian Tribe could qualify
for treatment as a State for the purpose
of the Section 404 dredge and fill permit
program (and, as discussed below, for
purposes of sections 308 and 309 of the
CWA as they relate to section 404). The
proposal also included an amendment
to the section 404(b)(1) Guidelines for
specification of Disposal Sites for
Dredged or Fill Material by adding new
definitions for “Federal Indian
reservation”, “Indian Tribe” and
“States”. The public comment period
closed on January 29, 1990. EPA
received a total of 20 comments on the
proposed rule.
Pursuant to CWA sectIon 518, the
proposal was prepared in consultation
with States and Indian Thbea. The
proposal was developed with the
assistance of an informal work group
composed of representatives from
Indian Tribes, States, and EPA. In
addition, a national consultation
meeting involving States and Tribes was
held in Denver, Colorado in June of
1988 for the purpose of obt Aining
additional comments. Finally, EPA
distributed a number of drafts of the
proposal to all States and tribes
(following a mailing list of federally
recognized Tribes obtained by the Office
of Water) for review and comment prior
to Issuing, the proposed rule.
EPA believes that many of the
difficult Issues were resolved during the
consultation period prior to proposal.
and that this explains why relatively
few comments were receIved on the
proposal and why relatively few
changes to the proposal were required
In preparing today’s final rule. AnothE
reason is that EPA had previously
published 8 imiIA ? procedures under
CWA section 518 for the section 108
water quality management and planning
program (54 FR 14354; Apr. 11, 1989).
Additional backgroun informatIOfl.
was Included in the preamble to the
pronosed rulemnhllnR.
Finally, EPA 1ssue very . 1mlIar
regulations treailng Tribe. as States for
purposes of sections 303 and 401 of the
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Federal Register / VoL 58. No. 27 / Thursday. February 11. 1993 / Rules and Regulations
8173
CWA (Water Quality Standards
program). which were also proposed on
september 22. 1989. EPA received
jmI1ar comments on most Issues.
today’s responses to comments echo
PA’s responses in that finAl EPA
rporates all of those responses into
today’s administrative record by
eferenos. and has not repeated all of
them here.
g. aesponse to Public Comments
2lie response to public comments Is
organized Into two sections: (1)
Treatment of Tribes as States, and (2)
other comments. Comments djscns ed
within each of these sections has been
further categorized by topic.
1 Treatment of Tribes as States
Comments on the Authority
Requirements
a. The Scope of Inherent Tribal
Authority
Comment: The Issue of whether and
how EPA should require Tribes to
demonstrate that they meet the
requirements of section 518(e)(2) of the
CWA. I.e., that they can demonstrate
authority to regulate the discharge of
dredged or fill material within the
boundaries of their reservations,
attracted significant comment
Numerous commanters remarked on the
significance of the Supreme Court’s
decision In Brendoie versus
Confederated Tribes and Bands of the
Yakima NatIon. 492 U.S. 408,109 S.Ct.
2994 (1989) for EPA’s programs and
today’s regulations, although there were
widely differing views of how to read
the decision. Several commenters
asserted that Biendale clearly Indicates
that an Indian Tribe may not enforce the
section 404 permIt program against non-
members of the Tribe on non-Indian-
owned fee lands within the boundaries
of the reservation or that, at the ‘ezy
least, the Tribe must include detailed
factual Information that describes the
non-Indian lands the Tribe proposes to
regulate and the reasons supporting Its
jurisdictional assertions.
By contrast, other commenters
asserted that Tribes invariably possess
Inherent authority to regulate a l
reservation waters, end that EPA should
Presume the e,dstence of such authority
and not require Tribes to make any
specific factual showing. These
comment asserted that such authority
over environmental matters was
recognized In Montana versus United
States,450 U.S. 544 (1981), and not
diminished by Brendale.
Response: £PA does not read the
holding In Brendaie as preventing EPA
from recognizing Tribes as States for
purposes of regulating the discharge of
dredged or fill material on fee lands
within the reservation, even If section
518 is not an express delegation of
authority (an Issue discussed In detail
below). In Brendale, both the State of
Washington and the Yalthn,i Nation
asserted authority to zone non-Indian
real estate developments on two parcels
within the Yakima reservation, one In
an area that was primarily Tribal, the
other In an area where much of the land
was owned In fee by non-members.
Although the Court analyzed the Issues
and the appropriate Interpretation of
Montana at considerable length the nine
members split 4:2:3 In reaching the
decision that the Tribe should have
exclusive zoning authority over
property in the Tribal area and the State
should have exclusive zoning authority
over non-Indian owned property in the
fee area. The decision reflects some
difficult Issues In this area of the law
and, as the comments Indicated, has
generated considerable controversy over
the extent of Tribal authority.
Given the lack of a majority rationale,
the primary significance of Brendale is
In its result, which was fully consistent
with Montana versus United States,
which previously had held that:
To be sure, Indian Tribes retain inherent
sovereign power to exercise some forms of
civil Jurisdiction over non-indians on their
reservations, even on non-Indian fee lands. A
tribe may regulate * the activities of
non-members who enter consensual
relationships with the Tribe or Its members
through commercial dealing, contracts, leases
or other .rrangsments • A Tribe may
also retain Inherent power to exercise civil
authority over the conduct of non-Indians on
fee lands within Its reservation when that
conduct threatens or has some direct effect
on the political Integrity, the economic
security, or the health or welfare of the Tribe.
Montana, 450 U.S. at 565—566 (citations
omitted).
In Brendale , the Court applied this
test, finding Tribal authority over
activities that would threaten the health
and welfare of the Tribe, 492 U.S. at
443-44 (Stevens, J., writing for the
Court); Ed. at 449—SO (Bbir-kmnun, J.
concurring). Conversely, the Court
found no Tribal jurisdiction where the
proposed activities “would not threaten
the Tribe’s • • health or welfare.” Id.
at 432 (WhIte, J., writing for the Court).
The Agency therefore disagrees with
commenters who argue that Brendale
somehow overrules Montana.
As further discussed below, EPA
agrees with certain commenters that
pending further judicial or
Congressional guidance on the extent to
which sectIon 518 delegates additional
authority to Tribes, the ultimate
decision regarding Tribal authority must
be made on a Tribe-by-Tribe basis and
has finalized the proposed process for
making those determinations. Thus.
EPA rejects the suggestion of other
commenters that EPA make a conclusive
statement regarding the extent of Tribal
jurisdiction over fee lands for all Tribes
and all waters or even a statement
regarding any particular reservation.
except In the context of an actual
treatment as a State application. This Is
consistent with the approach the
Agency adopted under the’Safe
Drinking Wate.# Act. when It determined
that It would not “automatically
assume,” or adopt, In the first Instance,
a rebuttable presumption of Tribal
authority over all water within a
reservation that would operate even In
the absence of any factual .vldanra, See
53 FR 37396,37399 (September 26.
1988). Nonetheless, EPA sees no reason
in light of Brendaleto assume that
Tribes would be parse unable to
demonstrate authority over water.
quality management on fee lands within
reservation borders. Rather, as discussed
below. EPA believes that as a general
matter there are substantial legal end
factual reasons to assume that Tribes
ordinarily have the legal authority to
regulate surface water quality within a
reservation..
In evaluating whether a Tribe has
authority to regulate a particular activity
on land owned In fee by nan-members
but located within a reservation, EPA
will examine the Tribe’s authority in
lig)it of the language of section 318 and
evolving case law as reflected In
Montana and Brendole. The extent of
such Tribal authority depends on the
effect of that lvlty on the Tribe. As
discussed above, in the absence of
contrary statutory policy, a Tribe may
regulate the activities of non-Indians on
fee lands within Its reservation when
those activities threaten or have a direct
effect on the political Integrity, the
economic security, or the health or
welfare of the Tribe. Montana, 450 U.S.
at 565—66. However, In Brendale several
justices argued that for a TrIbe to have
“a protectable interest” In an activity,
the activity’s effect should be
“demonstrably serious.” Brendale . 492
U.S. at 431 (Wl Ite, J.). In addition, In a
more recent case Involving Tribal
criminal jurisdiction, a majority of the
Court Indicated In dicta that a Tribe
may exercise civil authority “where the
exercise of Tribal authority Is vital to
the maintenance of Tribal Integrity end
self-determination.” Duro v. Raffia, 110
S.Ct. 2053,2061 (1990). See also
Brendale, 492 U.S. at 450 (Blae .k’nun, J.)
(test for Inherent Tribal authority
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u a ,. a —b—’—’ •
———— —I. — ——-——-. --. -
wbether activities “implicate a absolutely aucial to the survival of
significant Tribal Interest”). Id at 462 many Indian reservations.
(Blackinun, J.) (test for inherent Tribal The Agency believes that
authority whether exordee of authority Congressional enactment of the Clean
“fundamental to the political and Water Act establishes i strong Federal
economic security olthe Tribal. interest in effective ma gemeflt of
As discussed above, the Supreme water quality. Indeed, the pnmaiy
Court, In recent cases, has explored objective of the CWA “is to restore and
several options to assure that the maintain the thmnfr*l, physical, and
impacts upon Tribes of the activities of biological Integrity of the Nation’s
non-Indians on fee land, under the waters” (section 101(a)) and, to achieve
Montana test, are more than de minimis, that objective, the Act est,bllaI es the
although to date the Court has not goal of eliminating all diadierges of
agreed. in a case on point, on any one pollutants. Into the navig*ble waters of
reformulation of the test. In response to the U.S. and attaining a level of water
this uncertainty, the Agency w [ li apply. quality which is flahable and
as an interim operating rule, a swimmable (section i01(aRl}-(2)). Thus
formulation of the standard that will the statute Itself constitutes. In effect, a
require a showing that the potential legislative determination that activities
Impacts of regulated activities on the which affect surface water and
Tribe are serious and substantiaL important habitat quality may have
The choice of an Agency operating serious and substantial lmpacts
rule containing this standard Is taken EPA also notes that, because of the
solely as a matter of prudence in light mobile nature of pollutants in surface
of judicial uncertainty and does not waters and the relatively small lengthl
reflect an Agency endorsement of this size stream segments or other water
standard p.rse.Moreorer. as discussed bodies on reservations, in would be
below, the Agency believes that the practically very difficult to separate out
activities regulated under the various the effects of water’ quality Impairment
environmental statutes generally have on non-indian fee land within a
serious and substantial Impacts on reservation from those on Tribal
hum health end welfare. As a result, portions. In other words, any
the Agency believes that Tribes will Impairment that o urs on, or as a result
usually be able to meet the s - of, activities on non-Indian fee lands Is
operating rule, and that use a very likely to Impair the water quality
rule by the Agency should not aeete an of the Thbel lends. Thi. also suggests
luqiauyer burden of proof on Tribes or that the serious and substantial effects
ests the adminIstratIvely undesirable of water quality Impairment within the
result of edierboardIng reservations. non.Indlanportlonz of. reservation are
Whether a Tribe has jurisdiction over very likely to affect the Tribal fntarest4n
activities by non-members will be water qua lty. EPA believes that a
determined case-by-case, based on “checkerboard” system of regulation.
fartual fin ’ iiigs The determinations as whereby the Tribe end State split up
to whetbat the required effect Is present regulation of surface water quality on
In a particular cas. depends on the the reservation, would Ignor. the
drcwnstsn’ es-- . - difficulties of assuring compliance with
Nonetheless, the Agency may also the section 404 permit ywam when
take into sonount the provisions of two dl ent suveruign entitles are
envIronmental st.tnte* , and any -‘ regulating the same small stream
legislathe flndlnp that the effects of the segments.
activity are serious In ma r 4 ng a EPA also believes that Congress has
generelizsd finding that Tribes are likely expressed a preference for Tribal
to possess . ufflcie”t inherent authority regulation of surface water quality to
to control reservation environmental assure compliance with the oels of the
quality. See e.g. Xeystone Bituminous CWA. This is confirmed by üie test and
CoaMssoc. v.De8eeedlctis, 480 U.S. legislative history of section 518 ltselL
470,478-77 and notes 8,7 (1987). As The CWA establishes a policy of
a result . in “ “g the required fwthml recognizing. preserving. and protecting
findinge as to the Impact of a water’ the primary responsibilities and rights-
related vlty on a particular Tribe, It of States toprtsveat. reduce. and
may not be necessary to develop an eU’n” pollution. end to plan the
extanthv,.nd detailed record In each development and use (Including
case. -The .Agency may also rely on lis restoration, preservation. and
spedalexpwtlas and priirtIt l . - imhancement) of land and watat
experience regarding the importance of- resonmes (sectinn 101(b}). By ex*r Cn .
water mms*g TT1a t , recognizing that the treatment of Indian Tribes as States
clean water Indnding Important means that Tribes are tabs primarily
hahitata ( . iIani lq boti . . responsible f ’ths protection of
-‘ edjme s,av.wningbeds,etC.). Is .. - reservation water r iwca& At Senat’
Burdick, floor maflagrtr of the 1987 CWA
Amendments, axpla ied. the purpose of
section 518 was to ‘ mv1de clean water
for the people of thIs Nation.” 133 Cong.
Rec. SlOiB (daily ad. Jan. 21, 1987).
This goal was to be accomplished. he
asserted, by giving Tribes the primary
authority to regulate practices which
may affect water quality on Indian
lands. Id.
In light of the Agency’s statutory
responsibility for Implementing the
environmental statutes, Its
Interpretations of the intent of Congress
in allowing for Tribal management of
the section 404 permIt program within
the reservation are entitled to
substantial deference. Washington Dept.
of Ecology V. EPA, 752 F.2d 1465,1469
(9th C li ’. 1985); see generally Chevron,
USA v. NRDC, 467 U.S. 837,843-45
(1984). -
The Agency a]a believes that the
effects of Tribal health and welfare
necessary to support Tribal regulation of
non-Indian activities on the reservation
may be easier to establish in the contest
of water quality management than with
regard to zoning . which was at Issue In
Hrendale. There is a significant
distinction between land use planning
and water quality managnmsut. The
Supreme Court has explicitly
recognized such a distinction: ‘land
use phinning In essence chooses
particular uses for the land;
environmental regulatlon • does
not mandate particular uses of the land
but requires only that. huwevvr the land
Is used, damage to the environment is.
kept within prescribed limits.”
California Coastal Commission v.
Granite Rock Co.. 480 U.S. 572, 587
(1987). The Court has relied on this
distinction to support a finding that
States retain authority to carry out
environmental regulation even in Cases
where their ability to carry out general
land use regulation Is pxeemptedby -
Federal Jaw. Id. at 587—89.
Further, water quality management
serves the purpose of protecting public
health and safety, which Isa core
governmental function, whose exercise
Is critical to self-government. The
special status of governmental actions tO
protect public health and safety I. well
established.’ By contrast, the power to.
zonecanbeexerc laedtoath l eve
purposes which have little or no direct
nexus to public health and safety. See
e.g. Brendale. 492 U.S. at 420 n.5
(White, J.) (listing broad range of
- consequences of State znT Ing dedsloal’i
‘Thb saI u tus bben - .M--- bjifl . j
ala. jusdes Is the ssn efP18hAmIS nt ,
ie $ . Thh. fraJUs
M,odot1 . .. D .o —4’ ,4eO U.s. 470. III 5 .$
(r9a7kId. aiZt ’ e.C4.dIar”&-
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Federal Register / Vol. 58. No. 27 / Thursday, Februar3 11. 1993 / Rules andBegWat1oiiá. 8175
Moreover, water pollution Is by nature
highly mobile, freely migrating from one
local jurisdiction to another, sometimes
over large distances. By trest. zoning
regulates the uses of particular
propeilles with impacts that are much
more likely to be contained within a
given lOCal jurisdiction.
operationally. EPA’s generalized
findings regarding the relationship of
water quality to Tribal health and
welfare will affect the legal analysis of
a Tribal submission by. in effect.
supplementing the factual showing a
Tribe makes in applying for treatment as
a State. Thus a Tribal submission
meeting the requirements of § 233.61(c)
of this regulation will also need to make
a relatively simple showing of facts that
there are waters within the reservation
used by the Tribe or Tribal members.
(and thus that the Tribe or Tribal
members could be subject to exposure to
pollutants present in. or introduced
Into, those waters) and that the waters
are subject to protection under the Clean
Water Act. The Tribe must also
explicitly assert that impairment of such
waters by the activities of non-Indians,
would have a serious and substantial
effect on health and welfare of the Tribe.
Once the Tribe meets this initial burden,
EPA will, in light of the facts presented
by the Tribe and the generalized
statutory and factual findings regarding
the importance of reservation water
quality discussed above, presume that
there has been an adequate showing of
Tribal jurisdiction on fee lands, unless
an appropriate governmental entity (e.g..
and adjacent Tribe or State)
demonstrates a lack of jurisdiction on
the part of the Tribe.
The Agency recognizes that
jurisdictional disputes between Tribes
and States can be complex and difficult
and that It will, in some circumstances.
be forced to address such disputes.
However, EPA’s ultimate responsibility,
is protection of the environment. In
view of the mobility of environmental
problems, and the interdependence of
various jurisdictions, It is Imperative
that all affected sovereigns work
cooperatively for environmental
protection, rather than engage in
confrontations over jurisdiction.
b The Effect of Section 51800 Tribal
Authority Over Non -Inthan Activities
Comment EPA has received letters
from three members of Congress,
Senator Simpson, Senator Baucus, and
Representative Morrison, regarding the
impact of Brendoie on EPA’s Indian
Policy and the development of
“treatment as a State” regulations for
EPA water programs i,n light of the
legislative history of éection 518 All
three commenteze asserted that Congress
did not Intend to expand the scope of
Tribal authority over non-Indians on the
reservation by the passage of section
518.
Rep. Morrison asserted that he
inserted Into the Congressional Record a
memorandum written by staff on the
House Committee on Interior and
Insular Affairs regarding section 518
(also Inserted Into the Congressional
Record by Senator Mama at 133 Cong.
Rec, S753.-54 (daily ad. Jan. 14, 1987))
solely to demonstrate that section 518
was not intended to expand Tribal water,
quantity rIghts. 133 Cong. Rec. H184—85
(daily ad. Jan 8. 1987) Rep. Morrison
disavowed other statements from that
memorandum which might support the
proposition that Congress Intended to
authorize Tribal jurisdiction over non-
members on reservations. (“Indian
Tribes have the right to regulate lands
and other natural resources within the-
reservation. including non-Indian
owned fee lands or resources.” Id.
(emphasis added)). Rep. Morrison stated
his belief that Congress çlid not, by the
passage of section 518. expand the
scope of Tribal authority over non-
Indians. In light of this legislative
history, Rep. Morrison asserted that.
consistent with Brendale, EPA should
not allow Tribal regulatioaof non-
members on so-called “open”
reservations. -
Senators Baucus and Simpson also
recommended that EPA consider the
legislative history of section 518(e) and
the Brendale decision and determine
not to allow Tribal regulation over non-
members on the reservation.
Finally, all three of these
Congressional commenters asserted that
the legislative history of section 518
clearly shows that it was not intended
to affect rights to water quantity under
State law. The concerns raised by these
Members of Congress echo other
comments discussed elsewhere in
today’s notion. Several commenters
asserted that section 518(e)(2) should
not be read as an express grant of
Congressional authority to Indian Tribes
to regulate such fee lands, despite
indications In Brendale to the contrary.
By contrast. Senators McCain.
Burdick. and Inouye. expressed a view
that section 518(e) delegates Tribes
authority to regulate all waters within
reservation boundaries including those
on non-Indian fee lands. Some
commenters cited Brendoie for this
proposition. The latter argument of
these commenters Is based upon the
opinion of Justice White In Brendoie
Justice White Indicates that certain
statutes may delegate Federal authority
to Tribes, thereby providing a basis for
authority over all lands within i
reservation. As Justice White explained.
on the record in Brendale there could
be- -
‘ no contention • thatCo ngress has
expressly delegated to the Yskinia Nation the
power to mae fee lands of of
the Tribe. Compare 18 U.S.C 1151.1161
(1982 ad., and Supp. 10; 35 U.S.C. 1377(e)
and (hlt ’1) (1982 ad.. Supp. V) IL . .. sectiens
518{e) and 518(h)(1) of the CWAJ.” -
492 U.S. at 428(1989) (Whlte.J.)
(emphasis added). This language clearly
categorizes the two cited statutory
schemes as express delegations of
Federal authority. Thus. Justice White,.
inter alia, cites the Clean Water Act as
an example of n explicit delegation of
authority over non-Indian activities to
Indian Tribes. -
Response: EPA has fully considered
the Congressional comments and their
interpretation of the legislativ, history
of section 518. EPA must, of course,
consider contemporaneous legislative
history as It is written, and has been
cautioned not to rely on subsequent.
Statements by Members of Congress.
Hazardous Waste Treatment Council v.
EPA, 886 F.2d 355 (DC Cit. 1989), coiL ’
denied, 111 S.CL 139 (1990).
EPA differs with the Congressional .
commenters to the extent that they
suggest the leglaintive history of section
518 is clear and expresses an Intent to’
limit the scope of Tribal authority. ‘A
notes that other legislative history might
be interpreted as evincing Congressional
intent to confer expanded Tribal
authority over non-Indians within the
reservation. .
in particular, the following colloquy
between Senators Inouye end flürdlck
on this issue isvery relevant:
Mr lnouye: • Ieincoiac.m.dabout
section 518(e)(2). As I read that prevision. It
enables qualified Indian Tribes to exercise
the same water quality regulation jurisdiction
with ies pect to water that ‘averser. borders,
or is other.vise located within their
reservations lparapbraslng section 5 18(h)(1l
and 18 U S C. 1151(afl that States have for
regulation of water outside In dian
reservations. Is my understanding of section
518(e) currect ?
Mr Burthck Yes. The intent of the
conferees was to assure that Indl n ‘fllh
would be able to exercise the same regulatory
junsdiction over water quality matters with
regard to water’s within Indian JurIsdictIon
that States have been exercising over their
water
133 Cong Rec. S1018 (daily ad. Jan. 21.
1987) (emphasis added). Senator
lnouye’s statement could arguably
support a reading that Congress
intended to recognize Tribal authority
over all waters within the reservation.
including those managed by non-
Indians. Mr. Burdick, a member of the
-------
Conference Committee, agrees with believes that It should not find that the have Inherent authority unl , Congress
Senator Inouye’s statement statute expands or limits the scope of- resands that author4y. In addition.
However, in EIWs view this colloquy Tribal authority beyond that Inherent in these commenters st ted. since section
is ambiguous and Inconclusive. Senator the Tribe absent an express Indication of 518 specifically authorizes Tribal
Burdick, in responding to Senator Congressional Intent to do so. See authority, no such demonstration and
Inouye. agrees that under section 518 Montana. 450 U.S. at 564. Therefore, supporting documentation is needed.
Tribes may regulate waters only If they EPA has decided that It will, as Response. As discussed In detail
are already “within Indian jurisdiction.” discussed above, continue to recognize above, the Agency assumes that, in
However Senator Burdick was only Inherent Tribal civil regulatory general. Tribes are likely to possess the
recognizing the status quo. I.e., authority to the full extent permitted authority to regulate activities affecting
whatever is within Indian jurisdiction under Federal Indian law, in light of water quality on the reservation. The
may be regulated via section 518. Montana. Drendale. and other Agency does not believe, however, that
Senator Burdick’s statement does not applicable case law. it would be appropriate to recognize
clearly show that he—or the Congress as EPA believes that Congress only Tribal authority and approve treatment
a whole-intended to legisrate that all m*nlfested an explidt Intent to as a State requests in the absence of
waters within the reservation are In fact authorize EPA to treat Indian Tribes as verifying documentation. In addition, In
“within Indian jurisdiction.” Thus, the States over any activities within the light of the legislative history of section
colloquy Is circular: Indians have scope of Tribal authority in light of the 518, the question of whether section
jurisdiction If, but only If, they have relevant principles of Federal IndIan 518(e) is an explicit delegation of
jurisdiction from some source other law. EPA believes that this approach authority over non.lndlans Is not
than section 518. It does not clearly will best effectuate the overall purposes resolved. Therefore, EPA does not
indicate whether Congress Intended to of the statute. believe it is currently appropriate to
expand what lies “within Indian EPA agrees with those commenters eliminate the requirement that Tribes
jurisdiction.” who Stated that Justice White’s opinion make an affirmative demonstration of
Further, If this colloquy were to be in Rrendale can be read to suggest a their regulatory authority. EPA will
construed as supporting en expansion of contrary conclusion, and to Indicate that authorize Tribes to exercise
Tribal authorlty It would arguably at least fburjustlces of the Supreme responsibility for the section 404 permit
conflict with a statement Senator Court would apparently interpret program once the Tribe shows that, In
Burdick had made earlier In response to section 5 18(e) as expressly delegating to light of the factual circumstances end
an inquiry from Senator Baucus. in that Thbes the authority to regulate water the generalized findings EPA has made
discussion, Senator Burdick reiterated quality on reservations, Including those regarding reservation water quality, It
that section 518 was not intended to affected by activities on nonindlan fee possesses the requisite authority.
affect existing water quantity rights, and lands. Nonetheless, EPA recognizes that EPA would advise Tribes, In their
added that “(pirivate lands and water Justice White’s opinion was not a Attorney.General Statements, to outline
rights owners within boundaries of majority opinion of the Court and was all bases for concluding that the Tribe
Indian reservations are not to be not necessary to the decision even of the has adequate authority. This can only
additionally affected by this act.” 133 plurality that joined It, since the Issue help EPA to make a prc per
Cong. Rec. S753 (daily ad. Jan. 14, 1987) was not before the Court in &endoie. . determination to treat the Tribe ass
(emphasis addedi. This could suggest Nor is there any discussion in the State.
that the Act was not Intended to alter opinion about the somewhat confusing As stated in the preamble to the
the status quo regarding regulatory legislative history of section 518. The proposal, where the Regional
authority over these lands. passing reference in that opinion does Administrator concludes that a Tribe
The legislative history-In the House is not finally resolve the question of has not adequately demonstrated Its
also unclear as to whether Congress whether section 518(e) Is a delegation of authority with respect to an area in
Intended to expand Tribal power over authority, and, as discussed above, EPA dispute, then Tribal assumption of the
non -Indi*n . The statement in the does not believe that It can make an section 404 permit program would be
House staff memorandum cited above absolute determination that Congress In restricted acoordlngly. U the authority In
supports a view that under current case fact expressed a clear intent on the dispute were focused one limited area.
law Thbee already possess regulatory Issue. this would not nece .’erlly delay the
authority over non.bidians within EPA agrees with the Congressional Agency’s dadsion to treat the Tribe as
reservation boundaries; thus It would be commenters that section 518 does not a State for the non.disputed areas.
unnecessary to delegate such authority affect existing water quantity rights. . Comment: Numerous commenters
to Tribes. Insertion of this memorandum This has been the Agency’s consistent suggested that § 233.81(c), whIch
Into the Congressional Record could position, based on the language of requires the Tribe to submit a map or
suggest that the House agreed with that SectIons 101(g) and 518(a). - legal desaiptlon of the area over which
view; however, this aspect of the . the Indian Tribe asserts authority to
memorandum was never the subject of Procedure! Req u,rements for regulate water, should be amended to
House discussions, which foc Demonstznbng Innernnt 7’nbol € Im that fee lands end lands owned
almost exclusively on Issues relating to Authority by non-members and non-Indians be
water rights. Commenh Numerous ctlmmentS shown on the map. -
EPA believes that If Congress had submitted before and after the proposed Response; No such amendment was
intended to make a change as Important rule was publlQhed have suggested that made to the regulation. EPA believes
as an expansion of indian authority to the provisions (see §5 233.61(b)(3) and that. In some cases , both States and
regulate non-members, it probably 233.61(c)) requiring that Tribes submit a Tribes may want to Identify the location
would have done so through statutory copy of eli documents which support of fee lands on reservations. However.
language and dIemssed the change In the Tribe’s assertion of authority Is -, EPA does not bellevelt Is appropriate to
the COmmithi e reports. G1 ven that the.... .unnecessary, inappropriate, an4 flows, specifically require Tribes to submit
le Isl tIve history ulflmatalyis. .. . from a inlsunderstan&ngofhtAtan law.. . such information In all cases . EPA also
ambiguous aMlnctmclusive. EPA These commenters argued that Tribes . believes that in some casei States are
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Federal RagWer I VoL 58, No. 27 / Thursday, February 11, 1993 1 Rules and Regulations
8177
more likely to have ready er to such
Informati on than are Tribes. EPA further
believes that the regulation dearly
requires Tribes to identify the area over
which the Tribe asserts authority to
regulate water çiality and that
an identlflr tIon of fee lands
an 1 owned by nOn!Ifldlafls In all
cases is imne ary and unduly
burdaflsOfl . Finally, EPA that
§ 233.61(e) gives the Regional
Admfllstr tor the dlsaetlon to require
whatever additional lnfnnn’tion Is
necessary tO support a Tribal
application on a caseby.case basis.
d. 7 eotment as a State Jot Off.
ReS8TVatiOfl Waters Within Inherent
Tribal Authority
Comment: Several comments were
received regarding the geographic scope
of programs authorized und section
518(e)(2). The provision authorizes EPA
to treat a Tribe as a State far water
resourceswhlchareheldbyanlndlan
Tribe, held in trust for InM nc held by
a member of an indian Tribe If aud i
property Interest is subject to a trust
restriction on alienation, or otherwise -
within the borders of an Indian
reservation.
(emphasis added)
EPA has cnnc 4 c antly reed the phrase
“or otherwise within a
separate category of water resources and
also as a modifier of the preceding three
categories of water resources, thus -
limiting the Thbe to acquiring treatment
as a State status for the four specified
categories of water resources within the
borders of the reservation.
Comments received suggested that
EPA should alter its readl g of this
provision to allow Tribes to qualify for
treatment as a State over all water
resources within its jurisdiction. These
comments asserted that limiting Tribes
to water resources within the
reservation would priivvut a Tribe from
ob$iilnlng treatment as a State status
over water resources outside the
‘reservation to which It has legitimate
jurisdictional r 1 lm Ezeniples cited
Included traditional resources areas
(known as “usual and accustomed”
areas) outside reservation borders, and
all lands held In trust for Tribes by the
US. Government or held by Individual
Ind1 ns that lie outside reservation
borders, lands in “Indian Country” (as
deflned ln l gU.S.C.1151)thatlle
outside reservation borders and, In
generaL all water resources within the
territorial jurisdiction of the Tribe that
lie outside reservation borders.
One commenter pointed out that often
suchlandsaresubjecttoTrthalor
Federal jurisdiction and are thus beyond
the police power aid regulatory
authority of the State In which they are
located. This comment concluded that
failure to provide Tribes with en
opportunity to obtain treatment as a
State status aver such lands would
oreate “regulatory voids” in which
neither States nor Tribes have clear
authority. Several coynynants suggested
that resolving this Issue could be
accomplished simply by revising the
definition of Federal Indian Reservation
Included In §233.2.
In contrast, other cnnlmenters
asserted that EPA Is correct In reading
the phrase “or otherwise within the
borders as a modifier of the
preceding three categories of water
resources. These commenters —
outthatfalluretodosowou ldrender
the statute nonsensical and contradict
Congressional Intent. However, these
commenters also asserted that EPA is
not correct in reading the phrase “or
otherwise within th borders * -. “ea
a fourth category of water resources,
because to do so would render the three
previous clauses superfluous. These
commenters therefore conclude that
section 518(e)(2) should notbe read as
authorizing Tribes to regulate non-
Indian owned lands within the
boundaries of the reservation.
Response: Under today’s rule, Tribes
are limited to obtaining treatment as a
State status for only water resources
within the borders of the reservation
over which theypossess authority to
regulate the discharge of dredged or fill
material. The me* t 4 ng of the term
“reservation” must, ol course, be
determined In light of statutory law and
with reference to relevant case law. EPA
considers trust lands formally set apart
for the use of Indians to be “within a
reservation” for purposes of section
518(e)(2), even if they have not been
formally designated as “reservations.”
Oklahoma Tax Commission v. Citizen
Bond Potawotoml Indian Tribe of
Oklahoma, 111 S.Ct. 905,910(1991).
This means It Is the status and use of the
land that determines If It is to be
considered “within the reservation”
rather than the label attached to it. EPA
believes that It was the Intent of
Congress to limit Tribes to obtaining
treAtment as a State status to lands
within the reservation. EPA bases this
conclusion, In part,.on the definition of
“Indian Tribe” found In CWA section
618(hX2). As discussedabove, EPA also
does not believe that section 518(eX2)
prevents EPA from recognizing Tribal
authority over non-Indian water
resources located within the reservation
If the Tribe can demonstrate the
requisite authority over such water
- resources.
Comments on the Capability
Requfrements
Conwient: A variety of comments
were received cnncmmlng the general
Issue of Thbal capability (Si 233.60(d)
end 233.61(d)). Cr mmAnts on this
question ranged from suggesting that
EPA should require no demonstration of
capability at aUto making the capabIlity
requirements stronger. Several
cnrnments asserted that rejecting Tribes
based on capability will only heighten
unevenness of experience between
States and Tribes.
Response: EPA made no . 4i*ng , In the
regulation. The provIsion Is not unduly
burdensome and EPA Intends to apply
51m11kr procedures for Tribes qualifyIng
as States In all CWA programs. The
Clean Water Act establishes basic
requirements for a Tribe to meet In
order to qualify for treatment as a Slate.
Fi lmlnatlng the requirement to
demonstrate capability would fall to
meet these statutory requirements. On
the other hand . EPA does recognize the
fact that for many Tribes the assumption
of various Clean Water Act programs Is
new. Information neces ’7 for EPA to
make determinations of capability mud
be bsIg nced eg*in the need to allow
Tribes to gain experience In CWA -
programs. EPA believes that today’s rule
provides that b*Isinre .
• Camment Counments were received
asserting that the rule should require, as
part of the demonstration of capability,
a demonstration of separation of powers
for executive, legislative, and judicial
functions, or at least describe how
bifurcation of Tribal regulatory and
proprietary roles will occur .
Response: EPA has not required
mba. to demonstrate s 9 aretion of
powers for purpose . of treating Tribes as
States because such a demonstration Is
not required by the Clean Water Act.
EPA will, however, In the context of
deciding to authorize Tribal 404 permIt
programs, consider potential ciwtflIct of
Interest where the Tribe would be In the
position of Issuing a permit to a Tribal
entity.
Comment: Several comments were
received requesting that EPA clarify
bow the Agency will evaluate whether
the Tribe has a history of successful
managerial performance of public health
or environmental programs, and clarify
how much detail Is required in
describing a Tribe’s history of
managerial experience (see -
§ 233.61(d)(1)).
Response: In evaluating Tribel
experience In public health and
environmental programs, EPA will lock
for Indications that the Tribe has
participated In audi programs, whether
-------
the programs be those administered by
EPA. other Federal Agencies. or of
Tnbal origin. For example. several
Tribes are known to have participated In
developing area-wide water
management plans or Tribal water
quality standards. EPA will also look for
evidence of historical budget allocations
dealing with public health or
environmental programs along with any
experience In monitoring In related
programs. In general. EPA will look
favorably on Tribes which have
experience In managing envlrçnmental
programs, because such experience is an
rndicator of existing capability and
commitment to environmental
protection. In most cases. EPA
anticipates that submission of a brief
narrative statement on this topic will be
sufficient.
Comments on the Procedure for
Reviewing Tribal Applications
Comment: Several comments were
received on the opportunity provided to
States to review Tribal assertions of
authority (see § 233.82(c). VarIous
commentere believed this provision to
be inappropriate because, for example.
Tribes do not review State applications
for primacy, States have already
established their authority in their
primacy applications. and the review Is
inconsistent with EPA’s Indian policy.
Otheçcomments suggested that States
comment along with everyone else
during a general public comment
period.
Response: The provision allowing
participation by other governmental
entities In EPA’s review of Tribal
authority does not Imply that States or
Federal agencies (other than EPA) have
veto power over Tribal applications for
treatment as a State. Rather, the
procedure is simply intended to Identify
any competing jurisdictional i klm and
thereby ensure that the Tribe has the
necessary authority to administer the
section 404 permit program. The
Agency will not rely solely on the
assertions of a commenter who
challenges the Tribe’s assertion of
authority; EPA will make an
independent evaluation of the Tribal
showing end all available information.
In addition, the provision allowing
appropriate governmental entities to
comment on Tribal assertions of
authority is not Intended as a barrier to
Tribal program assumption. As stated In
the preamble to the proposed
rulem 4 ng, where disputes regarding
Tribal authority are focused On a limited
ares this will not necessarily delay the
Agency’s decision to treat the Tribe as
a State for the non-disputed areas.
Comment: Several commentera
suggested that EPA should provide more
definition regarding the “governmental
entities” which will be provided notice
and an opportunity to comment on the
Tribe’s assertion of authority (see
§ 233.62(b). One commenter specifically
recommended that EPA notify the Army
Corps of Engineers of any Tribal
applications received.
Response: EPA defines the phrase
“governmental entities” as States,
Tribes, and other Federtl entities
administering land located contiguous
to the reservation of the Tribe which Is
applying for treatment as a State. Such
“governmental entities” will be
provided up to 30 days to comment on
Tribal assertions of authority.
Neighboring Thbes will be treated as
“governmental entities” regardless of
wiether the neighboring Tribe is treated
as a State for purposes of section 404.
Where such governmental entities are
States, EPA intends to provide notice
and an opportunity to comment to the
most appropriate State contacts which
may include, for example, the Governor,
Attorney General, or the appropriate
environmental agency head. The rule
limits the Agency to only considering
comments from such .“governmental
entities.”
EPA recognizes that city and county
governments which may be subject to or
affected by a Tribal sectIon 404 permit
program may also want to comment on
the Tribe’s assertion of authority.
Although EPA believes that the
responsibility to coordinate with local
governments falls primarily upon the
State, the Agency will make en effort to
provide notice to local governments by
placing an announcement In
appropriate newspapers. Since the rule
limits EPA to considering comments
from governmental entities, such
newspaper announcements will advise
Interested parties to direct comments on
Tribal authority to appropriate State
The process of notifying States and
Tribes end consulting with the
Department of the Interior, as delineated
In this and other EPA regulations
Implementing the Clean Water Act and
the Safe Drinking Water Act. was and Is
intended merely to assist the Agency I d
makIng Its determination whether a
Tribe has adequate authority to justify
treatment as a State by EPA. Such
notification and consultation
procedures were not and are not -
intended to establish any form of
adjudication or arbitration process to
resolve differences between State and
- Tribal governments. Rather, EPA has a
duty to determine whether a Tribe has
adequate authority, as defined by
Federal law and EPA policy, to carry out
the grant or program under
consideration. The notl catlon and
consultation procedures assist EPA In
making this determin t on by providing
information and perspectives from the
points of view of neighboring Tribal and
State governments and the Federal
agency having extensive expertise In
Federal Indian law. For these same
reasons. EPA believes that formal
consultation with the Corps of
Engineers on treatment as State
applications is probably unnecessary.
However, once the Tribe qualifies for
treatment as a State under this
regulation and subsequently applies for
assumption of the section 404 dredge
and fill permit program EPA will
consult with the Corps of Engineers as
prescribed by regulations (See subpart
B—Program Approval).
Finally, EPA wishes to emphasize that
the procedure for commenting on Tribal
authority Is only for the purposes of
determining whether the Tribe meets
the statutory criteria for treatment as a
State, not whether a Thbel 404 permIt
program should be approved. The
existing procedures outlined In 40 C7R
233.15 wIll be followed. This will
ensure full public participation and
evaluation of Trib authority before the
Tribe Issues 404 permIts In lieu of the
Corps.
Comment: It Is unlawful to limit
public comment to just the Tribal
demonstration of authority. Section
233.62(c) should allow public review of
all four statutory criteria. Furthermore,
formal adjudicatory hearings should be
held to determine the scope of Tribal
jurisdiction before treating the Thbe as
a State.
Response: CWA.sectlon 518 provides
EPA with the authority to determine
whether Indian Tribes are qualified to
be treated as States. The CWA does not
require EPA to provide for public
comment to Tribal applications. For
three of the criteria which Tribes must
meet, EPA believes that the Agency will
be able to make appropriate
determinations absent any public
comment. EPA believes that providing
for public comment on these three
criteria would unnecessarily complicate
and potentially delay the process- For
the authority criterion. EPA has
provided for .30 day comment period
by appropriate governmental entities
because the Agency believes that It wIll
be Important to gather all available
information regarding Tribal authority
prior to vniilrlng a det ”1 tiOfl. EPA
believes that providing for comrn nt on
the authority criterion Is appropriate
because this Is the only criterion which
outside comments might help to -
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- - Federal.Ieglster I -VoL 58, No. 27 / - Thursday, Fetruary 11,- 1993 / Rules and RegulatIons 8179
address. Furthermore; as noted above,
this is only a preliminary determination
and does not .11ntlnAte the public
process that will occur before approval
of the Tribal 404 permIt program. Thus,
EPA believes that formal hearings are
unnecessary and would only delay the
process with no benefit
Comment: Several comments pointed
out that the proposal did not specify In
any detail the procedure by which EPA
will consult with the Seaetazy of the
Interior in making a determination
concerning challenges to a Tribe’s
assertion of authority (see 4233.82(d). It
was suggested that the consultation
process should provide for notice and
opportunities for Input (e.g., a hearing)
to affe ted Tribes end States.
Response: EPA did not make changes
to the proposed rule in response to these
comments. However, subsequent to
publishing the proposed rule EPA did
reach agreement with the Department of
the interior regarding the procedures for
conducting such consultations. The-
procedure established as the Seaetary
of the interior’s designees the Assodate
Solicitor, Division of Indian Affairs and
the Deputy to the Assistant Seaetazy—
Indian Affairs (Trust and Ecnnomlc
Development). EPA will forward a copy
of the application end any documents
asserting a competing or conflicting
claim of authority to such designees as
soon as possible. For most applications.
an EPA-DOl conference will be
scheduled from one to three weeks after
the date the Associate Solicitor receives
the application. Comments from the
Interior Department will be primarily a
discussion of the law applicable to the
Issue to assist EPA in Its own
deliberations.
Responsibility for legal advice to the
EPA Mm ni4retor or the other EPA
decision n nfrØ? 5 will remain with the
EPA General Counsel. EPA does not
believe that the consultation process
with the Department of Interior shotild
involve notice and opportunities for
input by States and Tribes because such
parties are elsewhere provided
appropriate opportunities to participate
in EPA’s review of Tribal authority.
Comment: Several comments
suggested that once EPA in*k 95 a
determination regarding a Tribal
application, EPA should provide notice
of its decision to State, Tribal, and local
governments and all coinmenter, on the
Tribal assertion of authority, and should
publish a list of Tr1bes reeted as States
in the Federal Register.
Response: EPA will take all
reasonable means to advise Interested
parties of the decision reached regarding
challenges to Tribal assertions of
authority. At a nimum, written notice
will be provided to State(s) and other
governmental entitles that were sent
notice of the Tribal application.
Comment: One commenter requested
that EPA provide a mr i m f
States or other entities to extend the 30-
day cnmmRnt period In § 233.62(c).
Iiesponse: A interprets this section
as giving the Regional Administrator
discretion to grant such a request.
Nonetheless, given the preliminary
nature of the approve] of a Tribal
application for treatment ass State, EPA
will generally not vor significant
extensions of time.
Comment: A number of comments
suggested that EPA specify a timeframe
or change the timefreme associated with
the various steps In the application
review procedure (S 233.82).
With regard to th. review of the
Tribe’s assertion of authority (see
§ 233.62(c)), various comments
supported shortening the review period,
lengthening the review period, and also
adding a provision allowing an
extension to the review period.
With regard to final determinations
(see § 233.62(d)), several comments
suggested that EPA should complete Its
review and respond to Thbes withIn 60
days after receipt of an application.
Other comments suggested that EPA
should conduct a completeness review
within 30 days of receipt of a Tribal
application. In general. a number of
comments advocated some time limit
within which EPA would be required to
complete the review process.
Response: No tlmefrsmee in the
review procedure were changed In the
regulation In response to comments.
The timefremes assigned are consistent
with regulations promulgated for other
EPA water programs . Because EPA has
no reasonabl, way to predetermine how
complete Initial applications for
treatment ass State might be, what
challenges might arise or’ how numerous
or complex the Issues might be, the
Agency deems It Inappropriate to
attempt to establish timeframes that may
not allow sufficient time for resolution.
Also, several of the comments appear to
be based on early experience with the
“treatment as a State” process. EPA
believes that as Tribes, States,and EPA
become more familiar with working
together on “treatment as State”
procedures, the delays associated with
approval of early applications will
cease. Thus, EPA believes It
unnecessary to establish additional
deadlines In the regulation.
Other Comments on Treatment of Tribes
as States
Comments: Severe] commenters
suggested that as part of the treatment
as a State process, EPA require indian
Tribes to describe how they will protect
constitutional rights of non-Tribal
members in Issuance and enforcement
of 404 permIts, that Tnbes waive their
sovereign Immunity, and provide for
voting rights for non.member,.
Response: EPA notes that
constitutional rights of both Indians and
non-Indians mist without explicit
recognition In a Federal regulation. The
regulation provides a mei4uinlmrn for a
Tribe to demonstrate that it meets the
criteria of CWA section 518(e). EPA
believes It Is Inappropriat, to consider
any other factors In light of the
preliminary nature of the approval of a
Tribe for treatment us Stat.. EPA may
consider such Issues when reviewing an
application for Tribal program
assumption, although the Agency notes
that It generally would lack the
authority to mandate changes In the
structure of a Tribal government In such
a situation.
Comment: EPA should make clear
that qualification for treatment as a State
under one program is not disposltive for
applications under’ other programs.
Response: That Is the corTect
Interpretation of this rule. As discussed
previously, however. EPA expects that
once a Tribe has qualified for one
program, the key step toward
assumption of other programs, In most
cases, will be demonstrating appropriate
capability. .
tomment: A variety of comments
wore received concerning the general
Issue of the Tribe’s a4mln*I
enforcement authority. Comments
ranged from strong objection to the
proposed regulation without in
amendment to the CWA, to specifically
State that a 4 n ln1Il enforcement can be
waived, to support br the propoeed-
regulation as written.
Response: EPA provided a detailed
rationale for the proposed enforcement
provision (4233.63) In the preamble to
the proposed regulation (See 54 FR
49181,2). -
Since the comments raised no.
significant new Issues, much of that
discussion Is merely repeated here,
As is the case forStates,an Indian
Tribe must have Its own legal
authorities to adminIster a program
under the CWA; EPA cannot delegate Its
own authority. However, the Agency
considered whether the lack of
comprehensive crimin*l enforcement
authority would preclude Tribes from
applying for the National Pollution
Discharge limInatlon System (section
401) and the Dredge and Fill Permit
programs (section 404) that currently
require such authority for an approvable
State program.
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lilbU kederai Kegister I VOL Sb.
r ,dO. . 7 i inursaay. reoruary 11. i i / zsu.iea ana ztegu auuu
Section 1451 of SDWA 8peclflcally
states that Indian Tribes are not required
to exercise criminal enforcement
jurisdiction for primary enforcement
responsibility. The CWA amendments.
however, do not include similar
language indicating criminal
enforcement authority over all
individuals on the reservation as a State
where such authority is currently
required for State program assumption.
The Agency realizes that a
comprehensive criminal enforcement
requirement could raise substadtlal
impediments to Thbal assumption of
those CWA programs that require such
authorities of States. Federal law bars
Indian Tribes from criminally trying or
punishing non-Indians in the absence of
a treaty or other agreement to the
contrary. Oliphant v. Suquo.mish Indian
Tribe 435 U.S. 191 (1978). In addition.
the Federal Indian Civil Rights Act
prohibits any Indian court or tribunal
from Imposing any criminal fine greater
than 35000(25 U.S.C. 1302(7)).
The Agency believes that even though
Congress did not explicitly waive the
requirement under CWA. as under
SDWA. Congress nonetheless intended
Tribes to be able to obtain primacy
without demonstrating comprehensive
criminal enforcement authority. If EPA
were to infer that Congress. by falling to
insert language similar to that contained
in sectIon 1451 of SDWA. Intended not
to waive the criminal enforcement
requirement. EPA’s reading would make
part of sectIon 518 of CWA a nullity.
since absent further legislative action.
no Tribe would be able to assume a
program under 402 or 404 CWA. This
reading would contradict the apparent
intent of sectIon 518 to allow Tribes to
assume all specified CWA programs
where they meet the 518(e) criteria.
Section 233.41 of the 404 State
Program Regulations (SPR) requires that
a State have criminal enforcement
authority to have en approvable 404
State program. This notice proposes to
amend the existing regulations so that
Tribes will not be required to exercise
comprehensive criminal enforcement
jurisdiction as a condition to assuming
the 404 program. Tribes would Instead
be required to provide for the referral of
criminal enforcement matters when
Tribal enforcement authority does not
exist (e.g.. non-Indians or fines over
35.000) to EPA and/or the Corps as the
parties agree, in en appropriate and
timely manner. Such procedures must
be established In a formal Memorandum
of Agreement (MOA) with the Regional
Administrator and/or the appropriate
District Engineer(s) of the Corps. There
may be a single MOA among the Tribe,
EPA and the Corps; separate MOA’s
between the Tribe and EPA and the
Tribe and the Corps: or only one MOA.
between the Tribe and EPA or the
Corps. If the parties so agree. The
MOA(s) used to satisfy this agreement
may. but do not have to be. the same as
those required In 40 CFR 233.13 and
233.14.
Thus, the lack of comprehensive
Tribal criminal enforcement authority
should not prevent a Tribe from having
an approvable 404 State program.
Therefore we have made no change in
the regulation as proposed. However.
we did move the provision for Tribal
criminal enforcement authority from
Subpart C Treatment of Indian Tribes as
States. (233.83) to Subpart E
Compliance Evaluation and
Enforcement and redesignated it
“233.41(f) ProvIsion for Tribal criminal
enforcement authority.”
Other Comments
Comments on Trust Responsibility
Comment: EPA received several
comments regarding Its assertion that
the “Federal trust responsibility” owed
to Indian Tribes, as It applies to EPA
actions under the CWA. Is defined by
the terms of the CWA,
Certain comments asserted that EPA
should explicitly clarify whether the
CWA defines any trust obligations to
Tribes and, if so. where and how that
obligation will be expressed. Other
commenters not only asked for
clarification, but asserted that EPA must
State that the Federal”Thbel trust
relationship “exists independently of
and informs EPA decision making”
concerning the CWA and State-Tribal
disputes. Still another comment asked
EPA to clarify that the proposed
regulations are not to be read as
modifying or abrogating EPA’s trust
responsibility..
Response: EPA recognizes the
responsibility owed by the Federal
government as trustees for the affairs of
Indian Tribes. However, the Agency
does not believe the trust responsibility
precludes EPA from playing an
Impartial role In the dispute resolution
process:
Comments on Definitions Proposed for
SectIons 230.3 and 233.2
Comm ent EPA should change the
proposed definition of a Tribe in
§5230.3 and 233.2 to mean any Indian
Tribe, band, group. or community
recognized by the Secretary of the
Interior and exercising governmental
powers and functions over a Federal
Indian Reservation.
Response: No change was made; The
rule reflects the statutory definition.
However, we moved the 4efinltions of
“Federal Indian reservatiku.” “Indian
Tribe,” and “State” pro beed for 5230.3
to § 232.2 Definitlons—4ór consistency
with the placement of other sectIon 404
program definitions.
Comments on Dispute Resolution
Comment EPA should add a
mechanism for resolving disputes over
Tribal 404 permits similar to that
proposed for the section 303 pro am.
Response: Section 5 18(e) requires
EPA to provide a merhAnlem for the
resolution of any unreasonable
consequences that may arise as a result
of different water quality standards that
may be set by States and Indian Tribes
located on common bodies of water.
Congress directed EPA to develop a
mechanism to resolve the consequences
of States and Tribes setting different
water quality standards. Hence. EPA
included such a mechanism with the
regulations treating Tribes as States for
the water quality standards program.
The statute does not, however, require
Issuance of a similar mechanism when
Tribes are treated as States for purposes
of any other CWA program. Including
the permit programs under sectIons 402
and 404. Nor does the legislative history
of section 518 suggest that Congress
thought such a dispute resolution
mechanism would be necessary outside
of the water quality standards context.
Treatingan lndianTz ibeasaStatef or
purposes of the 404 program Is
somewhat different than treating a Tribe
as a State for purposes of setting water
quality standards. Once a Tribe is
treated as a State for purposes of 404k
the Tribe must still apply for
authorization to issue 404 permits In
lieu of the Corps of Engineers on the
reservation, following the procedures of
40 R 233.15. Those procedures allow
for public comment on the proposed
Tribal permit program approval, which
will illow States to raise any disputes
regarding Tribal authority or other
concerns. Thus, a separate dispute
resolution mechanism wbuld be
unnecessary Once a Tribe is treated as
a State and subsequently submits Its
standards for approval. EPA will not
solicit public comment on. nor re-
evaluate whether the Tribe has the
authority to adopt such standards-
In addition. ha Tribe subsequently
assumes the 404 permit program..
approval of a Tribal 404 permIt Is
unlikely to cause “disputes” between a
TribeandaStataWhiChneedtobe
resolved beyond those disputes which
cannot be resolved by existing - - -
mechanisms. If EPA determines thatthe
Tribe has an approvable permit prograni
under part 233. then, by definition. - -
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Federal Register 1. Vol. 58, No. 27 / Thursday, February 11, 1993 / Rules and Ragulatioi s 8181
neither the Corps of Png1neers nor the
State will be IssuIng 404 permIts In
assumable waters In that reservation.
(Note that the Corps of Engineers does
retain the permitting authority in non-
assumable waters.) Thus, there Is no
direct conflict with State authority to
Issue permits off the reservation.
Furthermore, the decision of who will
Issue 404 permits on the reservation
does not affect what water quality
standards must be met under that
permit. In other words, any water
quality standards set by either a Tribe or
a State adjacent to or downstream of the
reservation must be met In the 404
permit. whether that permit Is Issued by
the Tribe, the Corps of Rng neers. or the
State. Any dispute over the terms of that
permit are reflected In a dispute over
the underlying water quality standards,
which can be resolved by the existing
mechanism. In simplest terms, the
Indian 404 rule affects who Is the
permitting authority, not the substance
of the permits.
For the above reasons a separate
dispute resolution mechanism Is
therefore unnecessary.
C. Changes In the Proposed Rule
As stated above, the only changes to
the proposed regulatlans were (1) to
move the provision for Tribal criminal
enforcement Part G, Treatment of Indian
Tribes as States, § 233.63 to Part E,
Compliance Evaluation and
Enforcement, and redesignated
§ 233.41(1) end (2) to move, without
change the definitions of “Federal
Indian reservation,” “Indian Tribe.” and
“State” proposed for 230.3 to §232.2
Definitions. Moving the provision for
Tribal a’imlnal enforcement Is
appropriate because a Tribe’s criminAl
enforcement authority and how to
handle criminal enforcement matters
will be determined when and 11 a Tribe
applies for assumption of the section
404 dredge and fill permit program once
EPA has determined that the Tribe Is
eligibletobetreatedasaStateforthe
section 404 permIt program. The
definitions were moved for consistency
with the placement of other section 404
definitions.
D. State 404 PermIt Program Approval
In response to comments, EPA wishes
to emphasize that Tribes which obtain
treatment as a state for purposes of
sectIon 404 pursuant to today’s rule
must further comply with the provisions
of part 233 to obtain authorization of Its
404 permIt program. EPA has made no
changes to these requirements with
respect to Trlbes4 Thus. a Tribe must
submit an appli tIon which satisfies
the requirements of § 233.10, Including
submission of Memoranda of Agreement
with the EPA Administrator and the
Secretary of the Army ( 233.13—.14),
and submission of a Statement of the
Attorney General (or the Tribal
equivalent) which, inter alia, discusses
the basis for asserting jurisdiction on
Indian lands ( 233.12(b)). EPA will
process these applications pursuant to
the procedures In § 233.15.
On August $, 1991, the
Mmlnlstmtlon announced a
comprehensive plan for the protection
of the Nation’s wetlands. Included were
a number of actions to Improve the
workability of the Clean Water Act
section 404 regulatory program, which
regulates the discharge of dredged or fill
material Into wetlands. Among these
changes will be support for measures to
Increase the role of States In the
wetlands permitting process. When
such changes have been Identified.
amendments to the section 404 State
Program Regulations (See 40 Q ’R 232—
233) and other applicable legal
authorities will be Implemented. where
appropriate. The section 404 State
Program Regulations, modified In
accordance with the Administration’s
wetlands protection program, will apply
to Indian Tribes qualifying for treatment
as a State under today’s rule.
EPA wishes to clarify that under
today’s final rule any Thbe which is
approved to be treated as a State for
purposes of section 404 will
automatically be eligible to be treated as
a State for purposes of section 309(a)(1),
which addresses Federal enforcement of
CWA permits Issued by authorized
States. As discussed above, a Tribe
treated as a State for purposes of section
404 would subsequently be eligible to
apply to administer the 404 permit
program under the applicabfe
provisions of 40 R part 233. EPA
would assert the authority to enforce
any 404 permIt Issued by an Indian
TribetreateduaStatewhichhad
obtained authorization under part 233.
The same Is true for enforcement of a
permit Issued by a Tribe treated as a
State for purposes of the NPDES permit
program. Thus, EPA does not need to
and does not plan to Issue separate
regulations dealing with treatment as a
State for sectIon 309.
In addition, any Tribe treated as a
State for purposes of the section 404
program will also automatically be
eligible to be treated as a State for
purposes of section 308 (Inspection
authority) with respect to 404 permIts
Issued by the Tribe. The Agency has
adopted this approach for 1milar
reasons as sectIon 309. Pursuant to the
requirements of section 404(h)(1)(B), the
existence of State Inspection authority is
part of the 404 State permit program
authorization requirements, for which a
Tribemayapplyonceltlstreatedaaa
State under section 404. See 40 CFR
23 3.40. EPA also does not plan to Issue
separate regulations for treatment as a
State under sectIon 308.
E. Regulatory Impact Analyth
Compliance With Executive Order
12291
Executive Order 12291 (48 PR 13193,
February 9. 1981) requIres that a
regulatory agency determine whether a
new regulation will be “major” and, If
so. that a Regulatory Impact Analysis be
conducted. A major rule Is defined as a
regulationwhlch lslikelytoresultln:
(1) An annual effect on the economy
of $100 million or more;
(2) A major Increase In costs or prices
for consumers Individual Industries;
Federal, State and local government
agencies; or geographic regions; or
(3) SignIficant adverse effect on
competition, employment, Investment,
productIvit r, Innovation, or on the
ability of United States-based
enterprises to compete with foreign.
based enterprises In domestic or export
mth
As discuised earlier the purpose of
this rule Is to amend the exIsting State
Program Regulations (part 233) by
adding the procedures by which an
IndlanTr lbe,ifltchoosestoapply,may
qualify for Treatment as a State In order
tobeeliglbletosubsequentlyapplyfor
assumption of the sectIon 404 permIt
program administered Jointly by the
Corps of Pngineexs and EPA. The
provisions of part 233 for assumption
are not ehenged by this rule. Therefore,
the economic Impact of this rule on
Indian Tribes lithe cost associated with
the preparation of requests for a
determination of treatment as a State
under section 518(e) of the Clean Water
Act. The proposed rule was submitted
to the Office of Management and Budget
(O ) for review as required by
Executive Order 12291. Any written
commentsforOMBtoEPAandany
response to these comments will be
available for public Inspection from the
person listed at the beginning of this
notice. Since the rule has only minor
economic Impacts It does not meet the
definition of a major rule. The Agency,
therefore, Is not conducting a Regulatory
Impact Analysis.
F. Simplification of EPA Process for
Impbmientlng Statutory Authority To
Treat Tribes as States
As discussed earlier, thi rule was
originally proposed In November 1989.
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8182 Federal Register / VoL 58.
No. 27 / Thursday, February 11. 1993 / Rulet and Regulations -
The Agency had already completed all
of its internal reviews of this rule when.
on November 10. 1992. EPA’s Deputy
Administrator signed a memorandum
entitled “Simpl1 catlon of EPA’s
Process for Treating Tribes as States.”
By that memorandum, the Agency
formally adopted a new policy for
simplifying the process for treating
Indian Tribes In the same manner in
which It treats States under several
statutes. Including the Clean Water Act.
EPA has decided to Issue thirrule as
final so that there will be no further
delays In allowing interested Tribes to
seek approval to operate the 404 permIt
program. EPA recognizas, however, that
some rilAngea to tuday’. rule may be
ne ary to Implement fully Its new
policy on treatmentuaStats
simplification. EPA plan. to make
necessary changes to Its treA mnnt as a
State regulations aaoas all of Its
programs In the near future; It will make
any ne y ehAngea to this regulation
at that time, In the Interim , EPA will
continue to work with Tribes to ensure
that the existing regulations do not pose
an unreasonable burden on Tribes
wishing to assume authority for the 404
tprcgram.
G. Paperwork Reduction Act
The Information collictlon
requirements ruined In this rule have
been approved by the Office of
Management and Budget (0MB) undar
the provisions of the Paperwork
Reduction Act. 44 U.S.a 3501 etJeq.
and have been nualg 1Ad0MB control
number 2040-0140.
Public repodng burden for this
collection of Information Is estimated to
be an average of 100 howe per
respondent. including tIme for
reviewing Instructions, searching
existing data sources, gathering and
maintuilning the-data needed. ena
completing and reviewing the collection
of Information.
Send comments regarding the burden
estimate or any other aspect of this
collection of Infonnatlon, including
suggestions for rednuing this burden, to
Chief. Information Policy Branch, PM—
223Y, U.S. Environmental Protection
Agency. 40? M Street SW, Washington,
DC 20460 and to the Office of
Information and Regulataryftffalrs,
Office of Management and Budget.
Washington. DC 20503. marked
TM Attentlon: Desk Officer for EPA.”
IL Regulatory F 1 - 11 ’y Ad
Under the Regulatory Flexibility A
(RFA), 5 U.S.C. 601 s A muM
p r epa r eaR e g tlatory Flexibility
sIgnIH ent Impact one substantial
number of small entitles. The RFA
recognizes three kinds of small entitles
and defines them as follows:
—Small governmental jurisdictions—
any government of a district with a
population of less than 50,000.
—Small business—any business which
Is Independently owned and operated
and not domIni nt in Its field as
defined by Small Business
Admlnletratlofl regulations under
section 3 of the Small Busineu Act.
—Small organization—any not-for-profit
enterprise that Is Independently
owned and operated and not
dominunt In It. field (e.g.. private
hospitals end educational
Institutions).
Using the above definition of small
entity, EPA has concluded that the final
regulation, as promulgated. will not
have a significant impact on a
substantial number of small entities,
and that a Regulatory Flexibility
Analysis Is unneceruery. EPA has
reached this conclusion based on the
- following considerations.
The final regulation will not haves
significant impact on a substantial
number of small governmental
orgnnI uttlons. Approximately 275
In H n Tribes are potentially eligible for
treatment ass State under the wetland.
program. While most Indian Tribes meet
the definition of small governmental
organizations provided above, EPA
believes the number of Thbes subject to
significant Impacts as a result of this
proposed regulation will he a very small
fraction of the total that apply. EPA
considers the Information required by
this rule to be the minimum necessary
to effectively treat Indian Thbes as
States for the purpose of the 404 permIt
ulatIon will not have a
significant impact on a substantial
number of small businesses. Although it
Is conceivable that en Indian Tribe
could impose additional requirements
upon a permit applicant than the Corps,
EPA believes that these situations will
be rare. Any additional economic
impact on the public resulting from
implsinentatf on of this regulation Is
expected to be negligible, since Tribal
regulation of these activities Is liunitad
to areas within Tribal jurisdiction.
The regulation will not have a
significant impact on a substantial
number of small organizations for the
same reasons that the regulation will not
have a significant impact on a
substantial number of small businesses.
Accordingly. I certify that this fins!
regulation, as promulgated. will not
have a slgnIRc ”nt economic Impact 00
a substantial number of smafl entities. -
List of Subjects
40 CFR part 232
Intergovernmental rel tlons. Water
pollution control
40 part 233
Administrative practice and
procedure. Intergovernmental relations.
Penalties. Reporting and recordkeeping
requirements. Water pollution controL
Dated January 13. 1993
William K. Reilly.
Administrator. -
For the reasons set forth In the
preamble, parts 232 and 233 of tItle 40
of the Code of Federal Regulations are
amended as follows:
PART 232—404 PROGRAM
DEFINmONS; EXEMPT ACTIViTIES
NOT REQUIRING 404 PERMITS
1. The authority citation for part 232
continues to read as follows
Authority 33 U.S.C. 1344.
2. Section 232.2 is amended by
removing the paragraph designations
and adding. in alphabetical order, new
definitions for “Federal Indian
reservation.” “In4Ian Tribe” and
“State” to read as follows:
§232.2 Dsflnteons.
• • S •
Federal Indian reservation means all
land within the limits of any Indian
reservation under the jurisdiction of the
United States Government.
notwithstanding the Issuance of any
patent, and Including rights-of-way
running through the reseriation.
Indian Thbe means any Indian Tribe.
band. group. or cnmmunlty recognized
by the Secretary of the Interior and
exercising governmental authority aver
a Federal Indian reservation.
S S S * *
State means any of the 50 States, the
District of Columbia, Guam. the
Commonwealth of Puerto Rico, the
Virgin Islands. American Samoa. the
Commonwealth of the Northern Marlana
Islands. the Trust Territory of the Pacific
Islands. or en Indlun Tribe as defined In
this part, which meet the requirements
of §233.60.
PART 233—404 STATE PROGRAM
REGULATiONS
1. The authority citation for pert 233
continues to read as follows:
Asth.r1i t Clean Water Act. 33 U.S-C . 1251
mseq S
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Federal Register / Vol. 58. No. 27 / Thursday, February 11, 1993 / Rules and Regulations 8183
Subpart A—General
2. Section 233.1 as amended by
revising paragraph (b) to read as follows:
5233.1 Purpos. and scope .
* a a * a
(b) Except as provided In 5232.3. a
State program must regulate all
discharges of dredged or fill material
Into waters regulated by the State under
section 404(g)—(1). Partial State
programs are not approvable under
section 404. A State’s decision not to
assume existing Corps’ general permits
does not constitute a partial program.
The discharges previously authorized by
general permit will be regulated by State
individual permits. However, In many
cases, States other than Indian Tribes
will lack authority to regulate activities
on Indian lands. This lack of authority
does not Impair that State’s ability to
obtain full program approval In
accordance with this part. I.e.. Inability
of a State which is not an Indian Tribe
to regulate activities on Indian lands
does not constitute a partial program.
The Secretary of the Army acting
through the Corps of Engineers will
continue to administer the program on
Indian lands Ifs State which Is not an
Indian Tribe does not seek and have
authority to regulate activities on Indian
lands.
a a a a a
3. Section 233.2 Is amended by
removing the paragraph designations
and adding. In alphabetical order, new
definitions for “Federal Indian
reservation,” and “Indian Tribe” and by
revising the definition of “State” to read
as follows:
5233.2 DefinItions.
a a a a a
Federal Indian reservation means all
land within the limits of any Indian
reservation under the Jurisdiction of the
United States Government.
notwithstanding the issuance of any
patent, and including rights-of.way
running through the reservation.
a a a * a
Indian Thbe means any Indian Tribe,
band, group, or community recognized
by the Secretary of the Interior and
exercising governmental authority over
a Federal Indian reservation.
a a a a a
State means any of the 50 States, the
District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa. the
Commonwealth of the Northern Marlana
Islands, the Trust Territory of the Pacific
Islands, or an Indian Tribe, as defined
In this part, whIcl meet the
requirements of §233.60. For purposes
of this part, the word State also Includes
any interstate agency requesting
program approval or a . 1 mlnlaterlng an
approved program.
4. Section 233.41 Is amended by
adding paragraph (I) to read as follows:
5233.41 RequIrements for snforesmsnt
• a a a a
(1) Pm vision for Thbol criminal
enforcement authority. To the extent
that an Indian Tribe does not assert or
Is precluded from asserting 1mlnal
enforcement authority (S 233.41(a)(3) (II)
and (lii)), the Federal government will
continua to exercise primary 1vnlnal
enforcement responsibility. The Tribe,
with the A Region and Co
District(s) with Jurisdiction,
develop a a ’stem where the Thbal
agency will refer such a violation to the
Regional Administrator or the District
Engineer(s), as agreed to by the parties.
In an appropriate and timely mAnner.
This agreement shall be Incorporated
Into joint or separate Memorandum of
Agreement with the A Region and the
Corps District(s), as appropriate.
5. Part 233 is amended by
redeslgnatlng subpart Gas subpart H,
redosignating § 233.60 as § 233.70; and
by adding a new subpart G consisting of
§5233.60 through 233.62 to read as
follows:
Subpart G—Treatment of Indian Tribe.
uStatsa
sI
233.60 RequIrements fer tsea nent as a
233.61 Request by en Indian Tribe for a
determination of eatment us State.
233.62 Procedure for processing en Indian
Tribe’s application for trae ent as State.
Subpart G—Treatment of Indian Tribes
.sState.
5213.60 RequIrements far beatnsnt sea
SectIon 518(e) of the CWA, 33 U.S.C.
1378(e), authorizes the Administrator to
treat an Indian Tribe as a State for
purposes of making the Tribe eligible to
apply for the 404 permIt program under
section 404(g)(1) If it meets the
following aiterla:
(a) The Indian Thbe Is recognized by
the Secretary of the Interior.
(b) The Indian Thbe has a governing
body carrying out substantial
governmental duties and powers.
(c) The functions to be exercised by
the Indian Tribe pertain to the
management and protection of water
resources which are held by an Indian
Tribe, held by the Untied States In trust
for the Indians, bald by a member of an
Indian Tribe If such property Interest Is
subject to a trust restriction an -
alienation, orotherwlse within the
borders of the Indian reservation.
(d) The Indian Tribe is reasonably
expectedtobecapable,Inthe -
Administrator’s judgment, of carrying
out the functions to be exercised, In a
manner consistent with the terms and
purposes of the Act and applicable
regulations. of an effective section 404
dredge and fill permit program.
5233.81 R.que.tbyenk,dieaTdb.for.
dstsrml,tsdon of Vestment us Stats.
An indian Tribe may apply to the
Regional Administrator for a
determination that It qualifies for
treatment ass State pursuant to section
518 of the Act, for purposes of the
section 404 program. The application
shall be concise and describe how the
Indian Tribe will meet each of the
requirements of S 233.60. The
application shall Include the following
hrformat lom
(a) A statement that the Tribe Is
recognized by the Secretary of the
Interior.
(b) A descriptive statement
demonstrating that the Tribal governing
body Is currently carrying out
substantial governmental duties and
powers over a defined area. This
Statement shall:
(1) DescrIbe the form of the Tribal
government.
(2) Describe the types of governmental
functions currently performed by the
Tribal governing body, such as,,but not
llmltedto, the exercise of police powers
affecting (or relating to) the health,
safety, end welfare of the affected
population; taxation; and the exercise of
the power of eminent domain ; and
(3)Ident lfythesourceoftheTr lbel
government’s authority to carry out the
governmental functions currently being
performed.
(c)(1) A map or legal description of
the area over which the Indian Thbe
asserts regulatory authority pursuant to
section 518(e)(2) of the CWA end
§ 233.60(c);
(2) A statement by the Tribal Attorney
General (or equivalent official) which
describes the basis for the Tribe’s
assertion under section 518(e)(2)
(Including, the nature or subject matter
of the asserted regulatory authority);
(3) A copy of all documents such as
Tribal constitutions, laws, charters,
executive orders, codes, ordinances,
and/or resolutions which support the
Tribe’s assertion of regulatory authority;
(d) A narrative statement describing
the capability of the Indian Tribe to
administer an effectIve 404 permIt
program. The Statement shall Include:
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8184 Federal Register I Vol. 58 .
No. 27 / Thursday. February 11. 1 9i i anu . z gui uuai
(1) A description of the Indian Tribe’s
previous management experience
Including, but not limited to, the
administration of programs and services
authorLted by the Indi An Self
Determination & Education Act (25
U.S.C. 450 t seq.). The Indian Mineral
Development Act (25 U.S.C. 2101 at
seq.). or the IndiAn Sanitation Facility
Construction Activity Act (42 U.S.C.
2004 5).
(2)A lIstofedtingon tabt
public health programs administered by
the Tribal governing body. and a copy
of related Tribal laws, regulations. and
policies;
(3) A description of the entity (or
entities) which exercise the executive.
legislative, and judicial functions of the
Tribal government
(4)A description of the e dst1ng, or
proposed. agency of the indiAn Tribe
which will aw’me primary
responsibility for establishing and
administering a section 404 dredge and
fill permit program or plan which
proposes how the Tribe will acquire
additional admInIstratIve and t 4 ”’ 1
expertise. The plan must address bow
the Tribe will Italn the funds to
a uire th. administrative and technical
expeffls
(5) A description of the technical and
administrative abilities of the staff to
adminiathe and mAnAge an effective.
environmentally sound 404 dredge and
fill permit program.
(e) The Administrator W 57. at his
discretion, request further
documentation necessary to suppost a
Tribal request for treatment as a State.
(I) If the Administrator has previously
determined that a Tribe has mat the
requirements for “treatment as a State”
for programs authorized under the Safe
Drinking Water Act or the C1 n Water
Act, then that Thbe need only provide
additional Information unique to the
particular statute or program for which
the Tribe Is seeking addithmkt -
authorization.
(Approved by the Offios of Msna mant and
Budget under cantrot number 2040-0140)
3233-6 ’ Procsdurss preesusing se
Wid$an Tr sB application for PsIImM4as a
(a) The Regional Administrator shall
procean an applicetlon of an Indian
Tribe for treatment as a State submitted
pursuant to 5233.61 in a timely mAnner .
He shall promptly notify the Indian
Tribe of receipt of the epplica .
(b) Within 30 days after receipt of the
Indian Thbe’a complete applica’I” foe
treatmen’ as a State. the Reginnal
Administrator shall notify all
appropriate governmental “ ‘i-
Notice shall include information on the
substance and basis for the Tribe’s
assertion that It meets the requirements
of § 233.60(c ).
(C) Each government 1 entity so
notified by the Ragion 1 Administrator
shall have 30 days to comment upon the
Tribe’s assertion under S 233.60(C).
Comments by governmental entities
shall be limited to the Tribe’s assertion
under S 233.60(C).
(d) If a Thbe’s assertion under
§ 233.60(c) Is subject to a competing or
conflicting claim, the Regional
AdmInIstratOr, after consultation with
the Secretary of the Interior, or his
designee. and In consideration of other
coiitfi eflt$ received, shall determine
whether the Tribe has adequately
demonstrated that It meets the
requirements of 5233.60(c) for the
dredge and fill permit program.
(e) If the Regional Administrator
determines that a Tribe meets the
requirements of 5233.61. the Indian
Tribe Is then eligible to apply for 404
program assumption.
(f).The Regional M_mlnlstratos shall
follow the procedures described In
5233.15 in proces ing a Tribe’s request
to aennee the 404 dredge and fill permit
progrem.
(FR ! c. 93—2699 Filed 2—10-03; 8:45 am)
aua coor
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IV. WETLAND PROTECTION GUIDANCES AND POLICIES
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‘to
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Department of the Army - Corps of Engineers
Regulatory Guidance Letters
IV—1. RGL 90-7 “Clarification of the Phrase ‘Normal Circumstances’ as it Pertains
to Cropped Wetlands.” 9/26/90 (Qs and As)
IV—2. RGL 92-1 “Federal Agencies Roles and Responsibilities” 5/13/92
IV—3. RGL 93-2 “Guidance on the Flexibility of the Section 404(b)(1) Guidelines”
8/23/93
“Appropriate Level of Analysis Required for Evaluating Compliance with the
Section 404(b)(1) Guidelines Alternatives Requirements.”
“Establishment and Use of Wetland Mitigation Banks in the Clean Water Act
Section 404 Regulatory Program.”
IV—4. RGL 94-1 “Expiration of Geographic Jurisdictional Determinations” 5/23/94
(Extends RGL 90-6)
IV-5. RGL 94-2 “Superfund Projects” 8/17/94
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__ Regulatory
Guidance Letter
Office, Chief of Engineers
No. 90—7 Date 26 SEP 90 Expires 31 DEC 93
CECW-OR
SUBJECT: Clarification of the Phrase “Normal Circumstances” as
it pertains to cropped Wetlands.
1. The purpose of this regulatory guidance letter (RGL) is to
clarify the concept of “normal circu.msta.nCes’ 1 as currently used
in the Army Corps of Engineers definition of wetlands (33 CFR
328.3(b)), with respect to cropped wetlands.
2. Since 1977, the Corps and the Environmental Protection Agency
(EPA) have defined wetlands as:
“areas that are inundated or saturated by surface or
groundwater at a freguency and duration sufficient to
support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in
saturated soil conditionS...” (33 CFR 328.3(b)) (emphasis
added).
While “normal circumstanCeS” has not been defined by regulation,
the Corps previously provided guidance on this subject in two
ecpired “normal circumstances” RGLs (RGLs 82-2 and 86-9). These
RGLs did not specifically deal with the issue of wetland
conversion for purpose of crop production.
3. When the Corps adopted the Federal Manual for Identifying and
Delineating jurisdictional Wetlands (Manual) on 10 January 1989,
the Corps chose to define “normal circumstances” in a manner
consistent with the definition used by the Soil Conservation
Service (SCS) in its administration of the Swampbuster provisions
of the Food Security Act of 1985 (FSA). Both the SCS and the
Manual interpret “normal circumstances” as the soil and
hydrologic conditions that are normally present, without regard
to whether the vegetation has been removed [ 7 CFR l2.31(b)(2)(i)]
[ Manual page 71].
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CECW-OR
SUBJECT Clarification of the phrase “Normal Circu -mstanCeS” as
it pertains to Cropped Wetlands
4. The primary consideration in determining whether a disturbed
area qualifies as a section 404 wetland under “normal
circumstances” involves an evaluation of the extent and relative
permanence of the physical alteration of wetlands hydrology and
liydrophytiC vegetation. In addition, consideration is given to
the purpose a.nd cause of the physical alterations to hydrology
and vegetatiOn. For example, we have always maintained that
areas where individuals have destroyed hydrophytiC vegetation in
an attempt to eliminate the regulatory requirements of section
404 remain part of the overall aquatic system, and are subject to
regulation under section 404. In such a case, where the Corps
can determine or reasonably infer that the purpose of the
physical disturbance to hydrophytiC vegetation was to avoid
regulation, the Corps will continue to assert section 404
jurisdiction.
5. The following guidance is provided regarding how the concept
of “normal circumstances” applies to areas that are in
agricultural crop production:
a. “Prior converted cropland” is defined by the SCS
(Section 512.15 of the National Food Security Act
Manual, August 1988) as wetlands which were both
manipulated (drained or otherwise physically altered to
remove excess water from the land) and cropped before
23 December 1985, to the extent that they no longer
exhibit important wetland values. Specifically, prior
converted cropland is inundated for no more than 14
consecutive days during the growing season. Prior
converted cropland generally does not include pothole
or playa wetlands. In addition, wetlands that are
seasonally flooded or ponded for 15 or more consecutive
days during the growing season are not considered prior
converted cropland.
b. “Farmed wetlands” are wetlands which were both
manipulated and cropped before 23 December
1985, but which continue to exhibit important
wetland values. Specifically, farmed
wetland-s include cropped potholes, playas,
and areas with 15 or more consecutive days
(or 10 percent of the growing season,
whichever is less) of inundation during the
growing season.
2
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CECW-OR
SUBJECT: Clarification of the Phrase “Normal Circumstances” as
it pertains to cropped Wetlands
c. The definition of “normal circumstances” found at page
71 of the Manual is based upon the premise that for
certain altered wetlands, even though the vegetation
has been removed by cropping, the basic soil and
hydrological characteristics remain to the extent that
hydrophytiC vegetation would return if the cropping
ceased. This assumption is valid for “farmed wetlands”
and as such these areas are subject to regulation under
section 404.
d. In contrast to “farmed wetlands”, “prior converted
croplands” generally have been subject to such
extensive and relatively permanent physical
hydrological modifications and alteration of
hydrophytiC vegetation that the resultant crop land
constitutes the “normal circumstances” for purposes of
section 404 jurisdiction. consequently, the “normal
circumstances” of prior converted croplands generally
do not support a “prevalence of hydrophytic vegetation”
and as such are not subject to regulation under section
404. In addition, our experience and professional
judgment lead us to conclude that because of the
magnitude of hydrological alterations that have most
often occurred on prior converted cropland, such
cropland meets, minimally if at all, the Manual’s
hydrology criteria.
e. If prior converted cropland is abandoned (512.17
National Food Security Act Manual as amended, June
1990) and wetland conditions return, then the area will
be subject to regulation under section 404. An area
will be considered abandoned, if for five consecutive
years there has been no cropping, management or
maintenance activities related to agricultural
production. In this case, positive indicators of all
mandatory wetlands criteria, including hydrophytiC
vegetation, must be observed.
f. For the purposes of section 404, the final
determination of whether an area is a wetland
under normal circumstances will be made pursuant
to the 19 January 1989 Army/EPA Memorandum of
Agreement on geographic jurisdiction. For those
3
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CECW-OR
SUBJECT: clarification of the Phrase “Normal Circu i StaflCeS” as
it pertains to Cropped Wetlands
cropped areas that have previously been
designated as tiprior converted cropland” or
“farmed wetland” by the SCS, the Corps will
rely upon such a designation to the extent
possible. For those cropped areas that have
not been designated “prior converted
cropland” or “farmed wetland” by the scs, the
Corps will consult with SCS staff and make
appropriate use of SCS data in making a
determination of “normal circumstances” for
section 404 purpoSes. Although every effort
should be made at the field level to resolve
Corps/SCS differences in opinion on the
proper designation of cropped wetlands, the
Corps will make the final determination of
section 404 jurisdictiOfl. However, in order
to monitor implementation of this RGL, cases
where the Corps and SCS fail to agree on
designation of prior converted cropland or
farmed wetlands should be documented and a
copy of the documentation forwarded to CECW-
OR.
6. This policy is applicable to section 404 of the Clean Water
Act only.
7. This guidance expireS 31 December 1993 unless sooner revised
or rescinded.
FOR THE CONHANDER:
. &&
ATRICK .J LL
Major Ce ral, tJ A
Director of Civil Works
4
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jcc
Corps of Engineers
Regulatory Guidance Letter 90-7
Normal Circumstances on Cropped Land
1. Q. - What is “prior converted cropland”?
A. — Prior converted cropland is defined by the SCS as
wetlands which were both manipu.latsd (drained or otherwise
physically altered to remove excess water from the land) and
cropped bef or. December 23, 1985, to the extent that they no
longer exhibit important wetland valueW. Prior converted
cropland is inundated for no more ‘ fin’ 14 consecutive days during
the growing season. In addition, cropped potholes and playa
wetlands, as well as areas inundated or ponded for 15 or more
days, are not considered prier converted cropland.
2. Q. — Is prier converted cropland subject to regulation under
Section 404 of the Clean Water Act?
A. - NO • The Corps has determined that for prior converted
croplar, the cropping constitutes the “normal circumstances” for
the site. Therefore, prior converted cropland is not regulated
und..r Section 404 and no permits are required from the Corps for
any activity on such areas.
3. Q. - What are farmed wetlands?
A. - Farmed wetlands are defined by 8C3 a. wetlands which
were both manipulated and cropped before December 23, 1985, but
continue to ev”l it important wetland values. Cropped potholes
and playa wetlands and those wetlands that ar. seasonally flooded
or ponded for 15 or more consecutive days during th. growing
season are farmed wetlands.
4 • Q. - Are farmed wetlands subj act to regulation under Section
404 of the Clean Water Act?
A. — ‘isa.
5. Q. - Given the fact that “farmed wetlands” are subject to
section 404 jurisdiction, do the statutory exemptions for
agricultural activities apply?
A. - Yes. Normal farming such as plowing, cu.ltivating, minor
drainage, and harvesting for th. production of food, fiber, and
forest products are exempt. On the other hand, activities
involving a discharge of dredged or fill material that would
change the use of the area are regulated.
I-E’f t t t tC
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6. Q. - What if cropping cease.?
A. — If prior converted cropland is abandoned and wetland
cond itions return, then the area will be subject to regulatjo
under section 404. An area will be considered aba.ndonad if f
five consecutive ye ars there ha. been no cropping, management or
maintenance activitie, related to agricultural production. In
this case, positive indicators of all three mandatory wetland.,
criteria, including hydrophytic vegetation, must be observed.
7, Q. W? at agency dssignate.s cropped areas as prior converted
or farmed wetland?
A. - For those cropped areas that have previously been
designated as “prior converted cropland” or “farmed wetland” by
the SCS, the Corps will rely upon such a designation to the
extent possible. For those cropped areas that have not been
designated “prior converted cropland” or “farmed wetland” by the
SCS, the Corps will consult with SCS staff and make appropriate
use of 8C8 data in mak.tng a determination of normal circumstances
for Section 404 purpose..
8 • Q. - Does prior converted cropi.and hi1 it important wetland
values?
A. - Ws believe that because of the extent and relative
permanence of the hydrological and vegetative alterations that
have occurred on prior converted cropland, these areas do not
exhibit important wetland values in most cases.
9 • Q. - Is the Corps standing by it. coi ent to protect the
Nation’ • aquatic resources?
A. - t neq ivocally, yea. The guidance on prior converted
cropland should in no way be cønstxu.d as a retreat or weaking of
the Corps coi+m.nt to ad iniatax’ the section 404 regulatory
program in a manner fully consistent with the goals of the Clean
Water Act.
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7
Guidance Letter
ce. C iefol g rieers
No 92—]. Date 13 May 92 E 2’es 31 Dec 97
- —
C CW-OR
SU JEC r: FEDERAL AGENCIES ROLES AND RESPONSIBILITIES
i. P RPOS2: The purpose of this guidance is to clarify the Army
Cc rps of Engineers leadership and decision-making role as
“ oject manager” for the evaluation of permit applications
pursuant to Section 404 of the Clean Water Act (CWA) and Section
l of the Rivers and Harbors Act. This guidance is also intended
td encourage effective and efficient coordination among
pr ospeCtiVe permittees, the Corps, and the Federal resource
a encies (i.e., Environmental Protection Agency (EPA), Fish and
Wi4dlife Service (FWS), and National Marine Fisheries Service
(N IFS)). Implementation of this guidance will help to streamline
t o permit process by minimizing delays and ensuring more timely
decisions, while providing a meaningful opportunity for
si.tbstantive input from alr Federal agencies.
2. BAclcaROtT)m:
(a) The Department of the Army Regulatory Program must
operate in an efficient manner in order to protect the aguatic
ex vironment and provide fair, eqi.iitable, and timely decisions to
tile regulated public. Clear leadership and a predictable
d4cisien—making framework will erthance the public acceptance of
tl e program and allow the program to meet the important objective
o effectively protecting the Nation’s valuable aquatic
r sourceS.
(b) On August 9, 1991, the President announced a
cqmprehensive plan for improving the protection of the Nation’s
wetlands. The plan seeks to balance two important objectives ——
t1 e protection, restoration, and creation of wetlands and the
n ed for sustained economic growth and development. The plan,
w ich is desigT ed to slow and eventually stop the net loss of
w t1ands, includes measures that will improve and streamline the
current wetlands regulatory system. This Regulatory Guidance
L4tter is issued in accordance with the President’s plan for
protecting wetlands.
(c) The intent of this guidance is to express clearly that
t e Corps is the decision-maker and project manager for the
D4partment of Army’s Regulatory Program. The Corps will
cOnsider, to the maximum extent possible, all timely, project-
r4lated comments from other Federal agencies when making
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CE C 4 p -OR
SUBOECT: FEDERAL AGENCIES ROLES A D E5P0NSIBILITIES
reg3.ilatOrY decisionS. Turther ore, the Corps and relevant
Federal agencies will maintain and improve as necessary their
wor)’zing relati0flS P5 .
(d) The Federal resource agencies have reviewed and
coiicurred with th q-uidarlce and have agreed to act in accordance
wi h these proViS flS. While this guidance does not restrict or
jm air the exercise of legal authorities vested in the Federal
re UrCe agencies or States under the CWA or other statutes and
requlatiOnS (e.g., EPA’S authority under section 404(c), section
404(f), and CWA geographic jurisdiction and FWS/WMFS authorities
un er the Fish and Wildlife Coordination Act and the Endangered
Species Act (ESA)) agency comments on Department of the Army
pe mit applications must be consistent with the provisions
cor tained in this regulatory gi.iidance letter.
3. TBZ CORPS PR0 ECT )(A2(AG C NT/DECIBION XAXING Rot!:
(a) The Corps is solely responsible for making final permit
decisionS pursuant to section 10 and section 404(a), including
filial determinations of compliance with the Corps permit
re 9 ulations, the Section 4Q4(b)(l) Guidelines, and Section
7(a)(2) of the ESA. As such, the Corps will act as the project
ma iager for the evaluation of all permit applications. The Corps
wi .l advise potential applicants of its role as the project
mapager and deciSiOfl aker. This guidance does not restrict
EPA’S authority to make determinations of compliance with the
Gu .delifl S in carrying OUt its responsibilities under Sections
309 and 404(C) of the Clean Water Act.
(b) As the project manager, the Corps is responsible for
e uesting and evaluating information concerning all permit
ap liCatiOflS. The Corps will obtain and utilize this information
in a manner that moves, as rapidly as practical 1 the regulatorY
prioceSs towards a final permit decision. The Corps will not
es aiUate applications as a project opponent or advocate -- but
ir stead will maintain an objective evaluation, fully considering
a 4]. relevant factors.
(C) The Corps will fully consider other Federal agencies’
p oject-related comments when determining compliance with the
)T tional Environmental Policy Act (NEPA), the Section 404(b) (1)
G .1ide1ines, the ESA, the National Historic Preservation Act, and
o her relevant statutes, regulations, and policies. The CO S
wjll also fully consider the agencies’ views when d termifliflg
whether to issue the permit, to issue the permit with c ditiOflS
and/or mitigation, or to deny the permit.
2
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c E CW - OR
SjJBJEC’r: FEDERAL AGENCIES ROLES AND RESPONSIBILITIES
4 . T E 1EDEPJ L kESQ CZ GE CIES ROLE:
(a) It is reco ni ed that the Federal resource agencIes
have an important role in the Department of the Army Reg latcr’ ’
p ogram under the CWA, NEPA, ESA, Magnuson Fisheries Conservation
and anagemeflt Act, and other relevant statutes.
(b) When providing comments, Federal resource agencies will
submit to the Corps only substantive, project-related information
the impacts of activities being evaluated by the Corps and
appropriate and practicable measures to mitigate adverse impacts.
T ie comments will be submitted within the time frames established
in interagency agreements and regulations. Federal resource
a encieS will limit their comments to their respective areas of
expertise and authority to avoid duplication with the Corps and
other agencies and to provide the Corps with a sound basis for
making permit decisionS. The Federal resource agencies should
nbt submit comments that attempt to interpret the Corps
r gulatiOflS or for the purposes of section 404(a) make
determinations concerning compliance with the Section 404(b) (1)
G iidelifleS. Pursuant to its authority under Section 404(b) (1) of
the CWA, the EPA may provide comments to the Corps identifying
i s views regarding compliance with the Guidelines. While the
c rps will fully consider and utilize agency comments, the final
d cisiOfl regarding the permit application, including a
d termiflati0fl of compliance with the Guidelines, rests solely
with the Corps.
5 , PRE PPLICJlTI0N CONSULTATIO)H
(a7 To provide potential applicants with the maximum degree
o relevant information at an early phase of project planning,
e Corps will increase its efforts to encourage pre—applicatiOn
cpnsultatiofls in accordance with regulations at 33 CFR 325.1(b).
F .irthermOre, while encouraging pre-application consultation the
cprps will emphasize the need for early consultation concerning
m .tigation requirements, if impacts to aquatic resources may
o cur. The Corps is responsible for initiating, coordinating,
a d conducting pre-application consultations and other
dU.scussiofls and meetings with applicants regarding bepartmeflt of
t4 e Army permits. This may not apply in instances where the
cpnsultatiofl is associated with the review of a separate permit
or license required from another Federal agency (e.g., the
F deral Energy Regulatory commission or the Nuclear Regulatory
c mmission) or in situations where resource agencies perform work
f r others outside the context of a specific Department of the
Army permit application (e.g., the Conservation Reserve Program
arid tech 1cal assistance to applicants of Federal grants).
3
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C E W - OR
stJ JEC’T: FED .AL AG CIES ROLES AND R.ESPCNSI ILITIES
(b) For those pre-application consultations involving
activities t iat ay result in impacts to aquatic resQu ceS, the
corps will provide EPA, FWS, NMFS (as appropriate), and other
appropriate Federal arid state agencies, a reasonable opportunity
to participate in the pre-application proCesS. The invited
ag encieS will participate to the axi um extent possible in the
pre—application consultation, since this is generally the best
time to consider a2-tern tiVeS for avoiding or reducing adverse
i acts. To the extent practical, the corps and the Federal
resource agencies will develop local procedures (e.g.,
econfereflCiflg) to promote reasonable and effective pre-
application consultationS within the logistical constraints of
ali]. affected parties.
6. P 1 PPLICATIO) 5 Pea IVI .L PZP.XITSz
(a) The Corps is responsible for determining the need for,
and the coordination of, interagency meetings, requests for
irjformatiofl, and other interactions between permit applicants and
tk e Federal Government. In this regard, Federal resource
agencies will contact the Corps to discuss and coordinate any
a ditional need for information from the applicant. The Corps
w ] .l cooperate with the Federal resource agencies to ensure, to
t1 e extent practical, that information necessary for the agencies
tq carry out their responsibilities is obtained. If it is
determined by the Corps that an applicant meeting is necessary
I 4r the exchange of information with a Federal resource agency
ar d the Corps chooses not to participate in such a meeting, the
F deral resource agency will apprise the Corps, generally in
writing, of that agency’s discussions with the applicant.
N twithStafldiflg such meetings, the Corps is solely responsible
f r permit requirements, including mitigation and other
c nditionS —— the Federal resource agencies must not represent
their views as regi.ilatory requirements. In circumstances where
t e corps meets with the applicant and develops information that
w+ll affect the permit decision, the Corps will apprise the
F.deral resource agencies of such information.
(b) Consistent with 33 CFR 325, the Corps will ensure that
p bliC notices contain sufficient information to facilitate the
t .mely submittal of project—specific comments from the Federal
resource agencies. The resource agencies comments will provide
apecitic information and/or data related to the proposed project
a te. The Corps will fully consider comments regarding the site
fi-om a watershed or landscape Bcale, including an evaluation of
p tential cumulative and secondary impacts.
4
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C EC - OR
sU JECT FEDE AG CIES ROLES A2 P ESPONSIBIT 1 S
(c) The Corps must consider cu u1.ative impacts in reaching
p e iit decisionS. In additiOn to the Corps own expertise and
the Corps will fully consider co entS from the
Federal resource agencies 1 which Cafl provide valuable information
on cumu1ati impacts. interested Federal agencies are
5 uraged to provide periodicallY to the Corps generic cor ents
ar asseSS efltS of impacts (outside the context of a specific
pe mit application) on issues within the agencies’ area of
e ertiSe.
7. GE1 tB. L p MITS:
(a) The Corps is responsible for proposing potential
g neral permits 1 assessing impacts of and commentS on proposed
general permits, and deciding whether to issue general permits.
T ie Corps will consider proposals for general permits from other
sc urceS, j cluding the yederal resource agencies 9 although the
fiinal decision regarding the need to propose a general permit
r stS vith the Corps. Other interested Federal agencies should
p ovide comments to the Corps Ofl proposed general permits. These
PØderal agency comments will be submitted consistent with
eStablish5d agreements and reg ulatiQflS and will focus on the
FOderal agencies’ area(s) of expertise. The Corps will fully
consider such agencies’ comments in deciding whether to issue
general permits, including programmatic general permits.
(b) The Corps is responsible for initiating and conducting
Retings that may be necessary in developing and evaluating
p tential general permits. Any diSCUSSiOnS with a State or local
GQVCrflmeflt regarding proposed programmatic general permits will
b coordinated through and conducted by the corps. Prior to
issuing a p;ogrammatic general permit, the Corps will ensure that
the State or local program, by itself or with appropriate
conditions, will protect the aquatic environment, including
wetlands, to the level required by the sectiOn 404 program.
8, This guidance expires 31 December 1997 unlesS sooner revised
ot rescinded.
F R THE COPQ(ANDER:
ARTB TJR E. WI LLIAMS
Major General, USA
Director of Civil WQr s
5
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42?.
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__ Regulatory
Guidance Letter
Office. Chief of Er ;ineers
No. 93—2 Date 23 Aug 93 Expires 31 Dec 98
CECW-OR
SUBJECT: Guidance on Flexibility of the 404(b) (1) Guidelines and
Mitigation Banking
1. Enclosed are two guidance documents signed by the Office of
the Assistant Secretary of the Army (Civil Works) and the
Environmental Protection Agency. The first document provides
guidance on the flexibility that the U.S. Army Corps of Engineers
should be utilizing when making determinations of compliance with
the Section 404(b) (1) Guidelines, particularly with regard to the
alternatives analysis. The second document provides guidance on
the use of mitigation banks as a means of providing compensatory
mitigation for Corps regulatory decisions.
2. Both enclosed guidance documents should be implemented
immediately. These guidance documents constitute an important
aspect of the President’s plan for protecting the Nation’s
wetlands, “Protecting America’s Wetlands: A Fair, Flexible and
Effective Approach” (published on 24 August 1993).
3. This guidance expires 31 December 1998 unless sooner revised
or rescinded.
FOR THE DIRECTOR OF CIVIL WORXS:
2 Ends JO . ELMORE, P.E.
Chie , Operations, Construction
and Readiness Division
Directorate of Civil Works
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Urn ted States nvironmenta1 i-rotecuofl i geiu

Office of Wetlands, Oceans and Watersheds
Washington. D C. 20460
/ United States Department of the Army
4 L U.S Army Corps of Engineers
Washington, D.C. 20314
JG 231993
MIMORANDUM TO THE FIELD
SUBJECT: APPROPRIATE LEVEL OF ANALYSIS_REQUIRED FOR
EVALUATING COMPLIANCE WiTH TR SECTION 404(b)(1)
GUIDELINES ALTERNATWF REQUIREMENTS
1. PURPOSE: The purpose of this memorandum is to clarify the appropriate level ot
analysis required for evaluating compliance with the Clean Water Act Section 404(b)(l)
Guidelines’ (Guidelines) requirements for consideration of alternatives. 40 CFR 230.10(a).
Specifically, this memorandum describes the flexibility afforded by the Guidelines tO make
regulatory decisions based on the relative severity of the environmental impaCt of proposed
discharges of dredged or fill material into waters of the United States.
2. BACKGROUND: The Guidelines are the substantive environmental standards by which
all Section 404 permit applications are evaluated. The Guidelines, which are binding
regulations, were published by the Environmental Protection Agency at 40 CFR Part 230 on
December 24, 1980. The fundamental precept of the Guidelines is that discharges of
dredged or fill material into waters of the United States, including wetlands, should not occur
unless it can be demonstrated that such discharges, either individually or cumulatively, will
not result in unacceptable adverse effects on the aquatic ecosystem. The Guidelines
specifically require that “no discharge of dredged or fill material shall be permitted if there is
a practicable alternative to the proposed discharge which would have less adverse impact on
the aquatic ecosystem, so long as the alternative does not have other significant adverse
environmental consequences.” 40 CFR 230.10(a). Based on this provision, the applicant is
required in every case (irrespective of whether the discharge site is a special aquatic site or
whether the activity associated with the discharge is water dependent) to evaluate
opportunities for use of non-aquatic areas and other aquatic sites that would result in less
adverse impact on the aquatic ecosystem. A permit cannot be issued, therefore, in
circumstances where a less environmentallY damaging practicable alternative for the proposed
discharge exists (except as provided for under Section 404(b)(2)).
3. DISCUSSION The Guidelines are, as noted above, binding regulations. It is important
to recognize, however, that this regulatory status does not limit the inherent flexibility
provided in the Guidelines for implementing these provisions. The preamble to the
Guidelines is very clear in this regard:
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4 L.r
Of course, as the regulation itseif makes clear, a certain amount of flexibiliry
is still intended. For example, while the ultimate conditions of compliance are
“regulatory” the Guidelines allow some room for judgment in determining
what must be done to arrive at a conclusion that those conditions have or have
not been met.
Guidelines Preamble, Regulation versus Guidelmes, 45 Federal gister 85336 (December 24, 1980).
Notwithstanding this flexibility, the record must contain sufficient information to
demonstrate that the proposed discharge complies with the requirements of Section 230.10(a)
of the Guidelines. The amount of information needed to make such a determination and the
level of scrutiny required by the Guidelines is commensurate with the severity of the
envirohmental impact (as determined by the functions of the aquatic resource and the nature
of the proposed activity) and the scope/cost of the project.
- a. Analysis Associated with Minor Impacts:
The Guidelines do not contemplate that the same intensity of anaiysis will be required
for all types of projects but instead envision a correlation between the scope of the evaluation
and the potential extent of adverse impacts on the aquatic environment. The introduction to
Section 230.10(a) recognizes that the level of analysis required may vary with the nature and
complexity of each individual case:
Although all requirements in § 230.10 must be met, the compliance evaluation
procedures w!l vary to reflect the seriousness of the potential for adverse
impacts on the aquatic eco3ystems posed by specific dredged or fill material
discharge activities.
40 CFR 230 10
Similarly, Section 230.6 (“Adaptability”) makes clear that the Guidelines:
allow evaluation and documentation for a variery of activities, ranging from
those with large, complex impacts on the aquatic environment to those for
which the impact is likely to be innocuous. It is unlikely that the Guidelines
will apply in their entirely to any one activity, no matter how complex. It is
anticipated that substantial numbers of permit applications will be for minor,
routine activities that have little, f any, potential for significant degradation of
the aquatic environment. generallv is nor intended or expected that
extensive restin2. evaluation or analysis will be needed to make findings of
compliance in such routine cases
40 C1K 230.6(9) (emphasis added)
2
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Section 230.6 also emphasizes that when making determinations of compliance with
the Guidelines, users:
must recognize the djfferenr levels of effort that should be associated with
varying degrees of impact and require or prepare commensurate
docu,nenultiOfl. The level c!fdocwnenrarion should reflect the significance and
cpmple.xirv of the discharge activity .
40 CFR 230.6(b) (emphasis added)
Consequently, the Guidelines clearly afford flexibility to adjust the stringency of the
alternatives review for projects that would have only’minoi impacts. Minor impacts are
associated with activities that generally would have little potential to degrade the aquatic
environment and include one, and frequently more, of the following characteristics: are
located in aquatic resources of limited natural function ; are small in size and cause little
direct impact; have little potential for secondary or cumulative impacts; or cause only
temporary impacts. It is important to recognize, however, that in some circumstances even
/f äll öfleE i ’ fills result in substantial impacts, and that in such cases a more detailed
I evaluation is necessary. The Corps Districts and EPA Regions will, through the standard
permit evaluation process, coordinate with the U.S. Fish and Wildlife Service, National
Marine Fisheries Service and other appropriate state and Federal agencies in evaluating the
likelihood that adverse impacts would result from a particular proposal. It is not appropriate
to consider compensatory mitigation in determining whether a proposed discharge will cause
only minor impacts for purposes of the alternatives analysis required by Section 230.10(a).
j j viewing projects that have the potential for only minor impacts on the aquatic
1 enb,.Corps and EPA field offices are directed to consider, in coordination with state
/ and Federal resource agencies, the following factors:
i) Such projects by their nature should not cause or contribute to significant
degradation individually or cumulatively. Therefore, it generally should not be
necessary to conduct or require detailed analyses to determine compliance with
Section 230.10(c).
ii) Although sufficient information must be developed to determine whether the
proposed activity is in fact the least damaging practicable alternative, the Guidelines
do not require an elaborate search for practicable alternatives if it is reasonably
anticipated that there are only minor differences between the environmental impacts of
the proposed activity and potentially practicable alternatives. This decision will be
made after consideration of resource agency comments on the proposed project. It
often makes sense to examine first whether potential alternatives would result in no
identifiable or discernible difference in impact on the aquatic ecosystem. Those
alternatives that do not may be eliminated from the analysis since Section 230.10(a) of
the Guidelines only prohibits discharges when a practicable alternative exists which
3
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417
would have less adverse impact on the aquatic ecosystem . Because evaluating
practicability is generally the more difficult aspect of the alternatives analysis, this
approach should save time and effort for both the applicant and the regulatory
agencies.’ By initially focusing the alternatives analysis on the question of impacts
on the aquatic ecosystem, it may be possible to limit (or in some instances eliminate
altogether) the number of alternatives that have to be evaluated for practicability.
iii) When it is determined that there is no identifiable or discernible difference in
adverse impact on the environment between the applicant’s proposed alternative and
all other practicable alternatives, then the applicant’s alternative is considered as
satisfying the requirements of Section 230.10(a).
iv) Even where a practicable alternative exists that would have less adverse impact
on the aquatic ecosystem, the Guidelines allow it to be rejected if it would have
“other significant adverse environmental consequences.” 40 CFR 230.10(a). As
explained in the preamble, this allows for consideration of “evidence of damages to
other ecosystems in deciding whether there is a ‘better’ alternative.” Hence, in
applying the alternatives analysis required by the Guidelines, it is not appropriate to
select an alternative where minor impacts on the aquatic environment are avoided at
the cost of substantial impacts to other natural environmental values.
) In cases of negligible or trivial impacts (e.g., small discharges to construct
individual driveways), it may be possible to conclude that no alternative location
could result in less adverse impact on the aquatic environment within the meaning of
the Guidelines. In such cases, it may nt be necessary to conduct an offsite
alternatives analysis but instead require only any practicable onsite minimization.
This guidance concerns application of the Section 404(b)(l) Guidelines to projects
with minor impacts. Projects which may cause more than minor impacts on the aquatic
environment, either individually or cumulatively, should be subjected to a proportionately
more detailed level of analysis to determine compliance or noncompliance with the
Guidelines. Projects which cause substantial impacts, in particular, must be thoroughly
evaluated through the standard permit evaluation process to determine compliance with all
provisions of the Guidelines.
1 1n certain instances, however, it may be easier to examine practicability first. Some
projects may be so site-specific (e.g., erosion control, bridge replacement) that no offsite
alternative could be practicable. In such cases the alternatives analysis may appropriately be
limited to onsite options only.
4
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b. ReIatiOl:IShiP between the Scope of Analysis and the Scope/Cost of the
Proposed Project:
The Guidelines provide the Corps and EPA with discretion for determining the
necessary level of analysis to support a conclusion as to whether or not an alternative is
practicable. Practicable alternatives are those alternatives that are “available and capable of
being done after taking into consideration cost, existing technology, and logistics in light of
overall project purposes.” 40 CFR 230. l0(a)(2). The preamble to the Guidelines provides
clarification on how cost is to be considered in the determination of practicability:
Our intent is to consider those alier,w.tives which are reasonable in terms of the
overall scope/cost qf the proposed project . The term economic [ for which the term
cost” was substituted in the final rule] might be construed to include consideration of
the applicant’s financial standing, or investment, or market share, a cwnbersome
inquiry which is nor necessarily material to the objectives of the Guidelines.
Guidelines Preamble, Altercatives, 45 Federal Re2lster 85339 (December 24, 1980) (empha.sis added)
Therefore, the level of analysis required for determining which alternatives are
practicable will vary depending on the type of project proposed. The determination of what
constitutes an unreasonable expense should generally consider whether the projected cost is
substantially greater than the costs normally associated with the particular type of project.
Generally, as the scope/cost of the project increases, the level of analysis should also
increase. To the extent the Corps obtains information on the costs associated with the
project, such information may be considered when making a determination of what
constitutes an unreasonable expense.
The preamble to the Guidelines also states that “ [ i]f an alleged alternative is
unreasonably expensive to the applicant, the alternative is not ‘practicable.’” Guidelines
Preamble, “Economic Factors”, 45 Federal Register 85343 (December 24, 1980).
Therefore, to the extent that individual homeowners and small businesses may typically be
associated with small projects with minor impacts, the nature of the applicant may also be a
relevant consideration in determining what constitutes a practicable alternative. It is
important to emphasize, however, that it is not a particular applicant’s financial standing that
is the primary consideration for determining practicability, but rather characteristics of the
project and what constitutes a reasonable expense for these projects that are most relevant to
practicability determinations.
4. The burden of proof to demonstrate compliance with the Guidelines rests with the
applicant; where insufflcient information is provided to determine compliance, the Guidelines
require that no permit be issued. 40 CFR 230. 12(a)(3)(iv).
5. A reasonable, common sense approach in applying the requirements of the Guidelines’
alternatives analysis is fully consistent with sound environmental protection. The Guidelines
5
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4a
clearly contemplate that reasonable discretion should be applied based on the nature of the
aquatic resource and potential impacts of a proposed activity in determining compliance with
the alternatives test. Such an approach encourages effective decisionmakiflg arid fosters a
better understanding arid enhanced confidence in the Section 404 program.
6. This guidance is consistent with the February 6, 1990 “Memorandum of Agreement
Between the Environmental Protection Agency and the Department of the Army Concerning
the Determination of Mitigation under the Clean Water Act Section 404(b)(1) Guidelines.”
1 4: %a, / - /Lr,I
ROBERT H. AYLAND, III (date) MICHAEL L. DAVIS ‘ (date )
Director, Office of the Assistant Secretary
Office of Wetknds, Oceans, of the Army (Civil Works)
and Watersheds Department of the Army
Ti. S. Environmental Protection Agency
6
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430
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United States Environmental Protection Agency
Office of Wetlands. Oceans and Watersheds
Washington D.C 20460 #“ ‘ ‘/
United States Department of the Army
U.S Army Corps of Engrneers
Washington, D C 20314
t JG 2? 1993
MEMORANDUM TO THE FIELD
SUBJECT: ESTABLISHME AND USE OF WEUAND MITIGATION BANKS IN
THE CLEAN WATER ACT SECTION 404 REGULATORY PROGRAM
1. This memorandum provides general guidelines for the establishment and use of wetland
mitigation banks in the Clean Water Act Section 404 regulatory program. This memorandum
serves as interim guidance pending completion of Phase I of by the Corps of Engineers’
Institute for Water Resources study on wetland mitigation banking’, at which time this
guidance will be reviewed and any appropriate revisions will be incorporated into final
guidelines.
2. For purposes of this guidance, wetland mitigation banking refers to the restoration,
creation, enhancement, and, in exceptional circumstances, preservation of wetlands or other
aquatic habitats expressly for the purpose of providing compensatory mitigation in advance o’
discharges into wetlands permitted under the Section 404 regulatory program. Wetland
mitigation banks can have several advantages over individual mitigation projects, some of
which are listed below:
a) Compensatory mitigation can be implemented and functioning in advance of project
impacts, thereby reducing temporal losses of wetland functions and uncertainty over
whether the mitigation will be successful in offsetting wetland losses.
b) It may be more ecologically advantageous for maintaining the integrity of the
aquatic ecosystem to consolidate compensatory mitigation for impacts to many
smaller, isolated or fragmented habitats into a single large parcel or contiguous
parcels.
‘The Corps of Engineers Institute for Water Resources, under the authority of Section
307(d) of the Water Resources Development Act of 1990, is undertaking a comprehensive
two-year review and evaluation of wetland mitigation banking to assist in the development of
a national policy on this issue. The interim summary report documenting the results of the
first phase of the study is scheduled for completion in the fall of 1993.
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432-
c) Development of a wetland mitigation bank can bring together financial resources
and planning arid scientific expertise not practicable to many individual mitigation
proposals. This consolidation of resources can increase the potential for the
establishment and long-term management of successful mitigation.
d) Wetland mitigation banking proposals may reduce regulatory uncertainty and
provide more cost-effective compensatory mitigation opportunities.
3. The Section 404(b)(l) Guidelines (Guidelines), as clarified by the “Memorandum of
Agreement Concerning the Determination of Mitigation under the Section 404(b)(1)
Guidelines” (Mitigation MOA) signed February 6, 1990, by the Environmental Protection
Agency and the Department of the Army, establish a mitigation sequence that is used in the
evaluation of individual permit applications. Under this sequence, all appropriate and
practicable steps must be undertaken by the applicant to first avoid and then minimize
adverse impacts to the aquatic ecosystem. Remaining unavoidable impacts must then be
offset through compensatory mitigation to the extent appropriate and practicable.
Requirements for compensatory mitigation may be satisfied through the use of wetland
mitigation banks, so long as their use is consistent with standard practices for evaluating
compensatory mitigation proposals outlined in the Mitigation MOA. It is important to
emphasize that, given the mitigation sequence requirements described above, permit
applicants should not anticipate that the establishment of, or participation in, a wetland
mitigation bank will ultimately lead to a determination of compliance with the Section
404(b)(1) Guidelines without adequate demonstration that impacts associated with the
proposed discharge have been avoided and minimized to the extent practicable.
4. The agencies’ preference for on-site, in- nd compensatory mitigation does not preclude
the use of wetland mitigation banks where it has been determined by the Corps, or other
appropriate permitting agency, in coordination with the Federal resource agencies through the
standard permit evaluation process, that the use of a particular mitigation bank as
compensation for proposed wetland impacts would be appropriate for offsetting impacts to
the aquatic ecosystem. In making such a determination, careful consideration must be given
to wetland functions, landscape position , and affected species populations at both the impact
and mitigation bank sites. In addition, compeii ition for wetland impacts should occur,
where appropriate and practicable, within the same watershed as the impact site. Where a
mitigation bank is being developed in conjunction with a wetland resource planning initiative
(e.g., Special Area Management Plan, State Wetland Conservation Plan) to satisfy particular
wetland restoration objectives, the permitting agency will determine, in coordination with the
Federal resource agencies, whether use of the bank should be considered an appropriate form
of compensatory mitigation for impacts occurring within the same watershed.
5. Wetland mitigation banks should generally be in place and functional before credits may
be used to offset permitted wetland losses. However, it may be appropriate to allow
incremental distribution of credits corresponding to the appropnate stage of successful
establishment of wetland functions. Moreover, variable mitigation ratios (credit acreage to
2
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impacted wetland acreage) may be used in such circumstances to reflect the wetland functions
attained at a bank site at a particular point in time. For example, higher ratios would be
required when a bank is not yet fully functional at the time credits axe to be withdrawn.
6. Establishment of each mitigation bank should be accompanied by the development of a
formai written agreement (e.g., memorandum of agreement) among the Corps, EPA, other
relevant resource agencies, and those parties who will own, develop, operate or otherwise
participate in the bank. The purpose of the agreement is to establish clear guidelines for
establishment and use of the mitigation bank. A wetlands mitigation bank may also be
established through issuance of a Section 404 permit where establishing the proposed bank
Involves a discharge of dredged or fill material into waters of the United States. The
banking agreement or, where applicable, special conditions of the permit establishing the
bank should address the following considerations, where appropriate:
a) location of the mitigation bank
b) goals arid objectives for the mitigation bank project;
c) identification of bank sponsors and participanL;
d) development and maintenance plan;
e) evaluation methodology acceptable to all signatories to establish bank credits
and assess bank success in meeting the project goals and objectives;
f) specific accounting procedures for tracking crediting arid debiting;
g) geographic area of applicability;
h) monitoring requirements and responsibilities;
i) remedial action responsibilities including funding; and
j) provisions for protecting the mitigation bank in perpetuity.
Agency participation in a wetlands mitigation banking agreement may not, in any way,
restrict or limit the authorities and responsibilities of the agencies.
7. An appropriate methodology, acceptab]e to all signatories, should be identified and used
to evaluate the success of wetland restoration and creation efforts within the mitigation bank
arid to identify the appropnate stage of development for issuing mitigation credits. A full
range of wetland functions should be assessed. Functional evaluations of the mitigation bank
should generally be conducted by a multi-disciplinary team representing involved resource
and regulatory agencies and other appropriate parties. The same methodology should be
used to determine the functions and values of both credits and debits. As an alternative,
credits and debits can be based on acres of various types of wetlands (e.g., National Wetland
Inventory classes). Final determinations regarding debits and credits will be made by the
Corps, or other appropriate permitting agency, in consultation with Federal resource
agencies.
8. Permit applicants may draw upon the available credits of a third party mitigation bank
(i.e., a bank developed and operated by an entity other than the permit applicant). The
3
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424
Se ion 404 permit, however, must state explicitly that the permittee remains responsible for
en .. ring that the mitigation requirements are satisfied.
9. To ensure legal enforceability of the mitigation conditions, use of mitigation bank credits
must be conditioned in the Section 404 permit by referencing the ban dng agreement or
Section 404 permit establishing the bank; however, such a provision should not limit the
responsibilitY of the Section 404 permittee for satisfying all legal requirements of the permit.
__
ROBERT H. WA AND, III (da e) MICHAEL L. DAVIS ‘ (date )
Director Office of the Assistant Secretary
Office of Wetlands, Oceans, of the Army (Ciiil Works)
and Watersheds Department of the Army
u.s. Environmental Protection Agency
4
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__ REGTJLAIORY
GUIDANCE
LETTER
NO. 94— DATE !av 1994 3 2ec 1999
—
czc’;—op.
SI3ECT: :zn of Geograon:o J sdicz :orial
? eçu .a:r-7 Gu danoe Lear (RGL) 90—5, S ec : “iX . -j
Da as for a ds :cnal Del ieao:ons :s z’.d.ed. 1
21 Deoa er 1999, :ao o z. e f cw :no
2. Th s gu anca snould e aDo1 ed o all J :sd czional
for all wa ars of zne Uni ad Sza as iade ursuan
- Secz :on 10 of one RIvers and :- ar ors Aco of 1399, Secz :or. 404
of one Clean Waoar Aco, and Secz :or. 103 of one : Ia ne ?z n
Researon and Sancouar:es Act of 1972.
3. To oe consIstent w:oh oaragraon 17.A. of one S January 1994,
eracancv norandur. of Agreenent Conc n.ng one Dellneat:on of
lands for Purooses of SectIon 404 o z.ne Clean Wazar Act and
Suoz oie 3 of one Food Secur :zv Aco, all U.S. v Corts of
; :neers ceocreonlc Ju sd Ic t Iona l deze nat:ons snail oe n
wr z c and ncroallv r9r aLn valld for a oer od of fIve years.
The Coros leoter (see oaragraon 4.(d) of RGL 90—6) snould. :ncl
a szaoa eflZ onat one Jur :sd cz onal d.eoa na: n s valId for a
oer :od of f :ye veers fror tne data of ohe letoar unless new
or azIon warrants revIsIon of the dete nao:on oef ore one
exo ra .on data.
4. For wetland. ur :sd:ct ona1 deilneao.ons one “effact:ve ‘date
of zn s ?.GL T ’ ref rred to n Daragraprls 4 and 5 of RGL 90-6 was
and reina ns 14 Aucust 1990. For jurIsdictIonal dete inat :ons,
other onan wetlands jur:sdIct onal delineao cns, t e effact ve
data of ois P.GL Tt referred to :n ara ra r .s 4 and 5 of RGL 90-6
wIll be e daze of thIs RG.
5. Prev:ous Coros written jur sdiot :onal dearn .naz :ons,
:nc1udIn wetland jur:sd : c t :ona l delIneatIons, w:zn a valId zy
erIcd of tb .ree veers rertaln valid for the stated er :od of onree
years. The szr :ct engIneer :s not recuIred to issue new
letters to extend sucn period from ee years to a total of five
years. However, f recueszed to do so, zne district engineer
w:ll noally extend the tnree year eriod to a total of fIve
years unless new Info az cn warrants a new Jurisdlot lonal
cezern .na -cn
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CE CW-CR
s CT: E t Ofl Of Geo aohic Jurisdictional Deta inazjons
6. Dist 1cts e not re i ed to issue a o Uc notice on t is
gii.dance out ay c so a tnei.r d sc at .on.
7. This g . ance e coires on 31 Deca.oer 1999 unless sooner
revised or rescinded.
FOR T D ECTOR OF C TL WORKS:
‘Q - ?-( MORE, P.
Operations, Construction
and Readiness Division
D rectorata of Civil Works
2
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US A.rny Corps
of Engi.rieers
Off ..ce, Ch .ef of Erig neers
NO. 94-2
CECW-OR
KLt -ULA1UK
GUTDANCE
LETTER
DATE 17 August 94 EXPIRES 31 Dec 99
SUBJECT: Superfund Projects
i. Regulatory Guidance Letter (RGL) 85-07, subject: “Superfund
Projects” is hereby reissued (copy enclosed)
2. This RGL was previously extended by RGL 89-2. Although the
extension expired, RGL 85-07 has continued to be U.S. Army Corps
of Engineers policy.
3. This guidance expires 31 December 1999 unless sooner revised
or rescinded.
FOR THE DIRECTOR OF CIVIL WORKS:
Enc 1
ELMORE, P.E.
Chief, Operations, Construction
and Readiness Division
Directorate of Civil Works
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Guidance Letter
Office Chief of Engineers
No 35— Dae 3 Ju.i. E res
- -. -
DAEN -C O-N
ES: Su er: -nC ?:02ec:3
1. Recently, the ief CounSel, Mr. Lester Edel an, res rded to a letter
frcm ‘ r. Willi fl N. Hed nan, r., Director, Cff:ce of eroer cv ard o ed:ai
:Res nse, virorrnent a1 Protec::orl ercv (E? ) r ic i dealt tne need for
artrtent of r iv autnor.:atloriS for :ne Comprerensive Env:rorr enzaJ
es rise, Ccm nsat:cn and L ab ty c: (C CL ) ac::ons. This letter
s r narizes Mr. delman’s O ifliO and ooerat: g gu:car ce for f:eld
:nteracz:on wizn tne PA.
2. The EPA ’s basic sit on :s that Congress did not ntetd for C C?
res nse act:cns to be suoject to ocher enviro ental law3. Raz.ter, as a
matter of sound rac:ice, C CL? res nse act ors generally should - ee tne
standards esteolished ov those 1a . Consecuendv, it is the EPA’s si::on
that. neither it ior the states, ]. i cursuing res nse ct ors at ..-‘e lccSt:ofl
of :ne release or threatened release under the au:hor tv c CE CL , are
recuired to obtain permits under Sect:on 434 of tne C2.ean water kcz or Sect:on
10 of the Rivers and Harbors t for tnose act:ons.
3. Mr. EdeL an stated in rt t-iac ne has some reservat:onS aoout the
s1t1on that tne EPA has taken. Nevertneless, re rec n :es t:at the EPA has
t..ie r mary authority for t e intertretatlort and ato1:cat on of and
therefore ‘. uld defer to the EPA’S readinc of lts o statutor’ auohorlt:eS,
at least for the time being.
4. tn 1 ght of this leal ooinion, Etks h uid ot recuire atmi:ca: oS for
the EPA or state res riSe actions t tne lcca::on of the release or t -rea:ened
release pursued under the authority of -nv oe it acoiicat:ons in
rocess should be te inated.
5. Eoth tne EPA and CCE believe that t e FCAs’ ex rtise :n assessing the
uolic interest factors for dre ing and fill Ing c erat:ons can contr:bute to
the overall cuality of the C RCLA res nse action. The Director of C: :l
rks iill be estaol sfling a grou from hIS staff to .‘ork •;ith the P . staff
to develco a fr ,ie rk for :ntegratira the Coros ec: on 10, Sect lon 404 and,
.f a ro r: ce, Sec::on 103 concerns into the P’s cucstanc:ve Suerf d
rev ews.
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1
6. Until specific guidance s provided from C E, ? k iouid r v de
techri ca1 suD rt to tne EPA regions and/or the states on r at:ers t’ in t’ eir
field of expertise.
F THE C I ’ CF XINE S:
1 hLr
C. E. AR LII
Brigadier General, USA
P ting Director of Civil rks
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IV-6
Department of the Army, “Corps of Engineers Wetlands Delineation Manual,”
Technical Report No. Y-87-1, (January, 1987)
[ Reserved due to lengthj
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IV-7
FWSIEPAJCOE/SCS, “Federal Manual for Identifying and Delineating Jurisdictional
Wetlands,” (January, 1989)
[ Reserved due to lengthl
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444-
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IV-8
Department of the Army, Memorandum for See Distribution: Questions and Answers
on the 1987 Manual, (10/7/91)
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44’
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447
DEPARTMENT OF THE ARMY
S r ’ v C r s ot
S NCTCN © C C314- OOO
A1TE TIONCF 7 Oc .: er 1991
CZCW-CR
M (ORA.ND M FOR SEE DISTRI3 ION
St 3JECT: Questions & A nswers on 1987 Manual
1. In response to questions from the field, the Qs & As on the
1987 corps of Engineers Wetlaid Delineation Mar. il (1987 Manual)
have been further clarified (in particular, questions #7 & 8).
We clarified that for saturated only systems, the sat jation must
be to the surface for the appropriate number of days ring the
growing season. Furthermore, we clarified that the number of
days for inundat .ofl or - saturation to - the surf ace are consecutive,
not cumulative. The enclosed Qs and As dated 7 October, 1991
superceda those previously distributed under the cover memorandum
of 16 September, 1991.
2. I want to again emphasize that the 1987 Manual stresses the
need to verify that all three parameters exist prior to
identifying and delineating an area as a wetland. Further, the
1987 Manual focuses on hydrology (i.e., inundation &\or
saturation to the surface). In situations where hydrology is
questionable, the 1987 Manual requires stronger evidence
regarding the hydrophytic nature of the vegetation. The 1987
Manual also stresses the need to us. sound professional
judgement, providing latitude to demonstrate whether an area is a
wetland or not based on a holistic and careful consideration of
evidence for all three parameters. As indicated in the 1987
Manual and the attached Qs and As, careful professional judgement
must be used in situations where indicators of hydrology are not
clear and the dominant vegetation is facultatiVe.
ro N F. STUDT
Chief, Regulatory Branch
Operations, construction and
Readiness Division
Directorate of civil Works
Enclosure
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questionS & Answe:5
on 1997 of Eifleer3 a11 a
1.Q. What i s the definit cn and practical .nterpretatiOfl of the
growing season wh..ch shou1 be used in the application of the 1987
Manual?
A. The 1987 Manual defines the growing season as “the portion of
the year when soil temperatures at 19.7 inches below the soil
surface are higher than biological zero (5 degrees C)”. This is
the definition found in Soil Taxonomy, and growing season months
can be assu.med based on temperature regimes (e.g., mesic: March-
October). The 1987 Maz.uai. further states this period can be
approximated by the number of frost-free days. The Waterways
Experiment Stat ion (WtS) indicates that the county soil surveys,
which utilize -31 degrees, provide the growing season for each
county. There is some flexibility in the determination of the
growing season in the 1987 Manual. Th, growing season, based on
air temperature in the county soil surveys, can be approximated as
the periodof time bet fl the average date of the first killing
frost to average date the last killing frost, which sometimes
does not accurately reflect the period of time when the soil
temperatures are higher than biological zero. The source of the
information may vary, however, the growing season generally is to
be determined by the number of killing frost-free days. In certain
parts of the country where plant communities in general have become
more adapted to regional conditions, local meanS of determining
growing season may be more appropriate and can be used.
2.Q. Should the determination of hydric soils be based on the
presence of an indicator listed in the 1987 Manual or on the series
name appearing on the Hvdric Soul of the United States list, an
indicator which is listed as less reliable in the hierarchy of
hydric soil indicators in the 1987 Manual?
A. The order of soil indicators reliability as listed in the
1987 Manual remains valid and will be used. Th ’ reliabilitY of the
indicators is based on the fact that field verification of a soil’s
hydric charact ,ristiCSiS more accurate than mapping or soils
lists. Soils listed on the most recent Hydric Soils list have been
determined by the National Technical Committee for Hvdric Soil
(NTCHS) to meet the criteria for hydric soils. When in the f .eld ,
verification that mapped hydric soils actually exhibit indicators
identified in the 1987 Manual for hydric soils is recommended..
Although a soil may appear on the List of hydric soils, inclusions
or disturbances may alter this designation to some degree, so the
list alone may not always be reliable. In obvious wetlands, if the
soil is on the list and the area meets the hydrologY and vegetat On
criteria, the area is a wetland. As found with the 1989 Manual,
one cannot rely solely on the fact that a soil is mapped as hyd.r.C
in making the wetland delineation. In all cases, best profesSiCfla’
CECW—OR, October 7, 1991. Page 2.
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judge ent should be used. The county lists provide valuaole
jnr at -ort, but aga .n shcUld not solely be rel .ed on to iake a
final dete ination as whether hydric soils are present.
Verification of the presence of at least one of the indicators for
hydric soils on the list (pgs. 30-34) is required in conjunction
with the use of a county soils list. The national soils- list to be
used has recently been updated by the NTCMS (June 1991), and this
list will be used by the Corps in conjunction with the 1987 Manual.
3.Q. Mow should the 1987 Manual be applied with respect to the
definition of “normal circumstances”?
A. The definition of “under normal circumstances” in the 1987
Manual states briefly that “this term refers to situations in which
the vegetation has not been substantially altered by man’s
activities”. As stated in item #3 of the memorandum of 27 August,
1991, the definition of normal circumstances used in the 1987
Manual has been clarified y Regulatory Guidance Letter (RGL) 90—7.
Although this RGI deals primarily with agricultural activities in
wetlands, paragraphs #3 & #4 discuss normal circumstances with
respect to all, areas potentially subject to 404. Further guidance
on normal circumstances is found in RGL 86-9 regarding construction
sites and irrigated wetlands. Th3 guidance should be followed in
preferential sequence of; 1) RGL 90—7, 2) RGL 86—9, and 3) 1987
Manual
4.Q. Does the vegetation criteria in the 1987 manual require the
use of the facultative (FAC)-neutral vegetation test (i.e., count
the dominant species wetter & drier than FAC, and ignore all of the
FAC5 in the vegetation determination)?
A. While the 1987 Manual mentions use of the FAC-neUtral test
for determining the presence of wetland vegetation in several
places, the first indicator of wetland vegetation criteria is the
presence of more than 50% of the dominant plant species FAC or
wetter (not including FAC- species, which are considered non-
wetland indicators under the 2.987 manual). me indicator status of
each of the dominant species is determined by consulting the
current regional plant list published by the FWS. Tb. 1987 Manual
provides an option in this determination of applying the FAC-
neutral test in cases where the delineator questions the status
designation of a particular plant species on a subregional basis
(see page 23). As always, any deviation from established protocol
requires documentation. The FAC-neutral option may also prove
useful in questionable areas or when the determination relies on
the vegetation call in an area that is not otherwL se an obvious
wetland. Specifically, the 1987 Manual is replete with cautions
and guidance that the Corps regulators must be confident that the
area is wetland when the area has a FAC-domiflated plant community.
Uncertainty regarding th. status of an area as a wetland where the
dominant vegetation is FAC would be a valid reason to use the FAC
neutral option. Situations exist where use of the TAC-neutral
CECW-OR, October 7, 1991. Page 2
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method will rtct serve to provide arty add .tjcr.al irtfor ation as to
the hydrophyt-C rtature of the plant community (e.g., all species
are FAC or there is an eci.ial number of species wetter and drier
than FAC such that they cancel each other out). In these cases, t
may be appropriate to consider the + and - modifiers associated
with some FAC species, which indicate the species frequency of
occurrence in a wetter or drier environment, in the overall
assessment of the vegetation parameter. Documentation supporting
reasons for using the FAC-neutral option must always be provided
and acceptance of delineations, as always, remains up to the
discretion of the District.
5.Q. Can indicators for any of the criteria in the 1989 Manual e
used as indicators for verification of the same or other criteria
presented in the 1987 Manual?
A. The indicators of hydrology in the 1987 Manual differ from
those of the 1989 Manual, and are not interchangeable. In
particular, the hydrology determination in the 1989 Manual often
relied on evidence of properties from the soil and/or vegetation
parameters. Indicators provided in the 1989 Manual for field
verification of a certain criterion that are not presented in th
1987 Manual for application with the same criterion cannot be used
e.xcept as additional information in support of the verification.
It is unlikely that an area which is a wetland will fail to meet a
criteria utilizing the indicators which are listed in the 1987
Manual.
6.Q. WilPthe other Federal agencies be utilizing.the 19b7 Manual
• in their. wetland determinations as well as the Corps of Engineers?
A. EPA has concurred with the Corps using the 2.987 Manual for
all actions. Further, we understand that EPA will likely use the
1987 Manual for EPA’s delineations as well. The other agencies
(SCS & FWS) typically do not make delineations for purposes of
Section 404.
7.Q. To what depth should one look in the soil to find indicators
of hydrology?
A. In accordance with the 1987 Manual’s guidance on reading soil
color (D2) , after digging a 16” soil pit observations should be
made immediately below the A-horizon or within 10 of the soil
surf ace (whichever is shallower). This guidance pertains to
observations of indicators of the øil criterion . For indicators
of saturation to the surface in the hvdrolcaV criterion ,
observations are made within a major portion of the root zone
(usually within 12”), again in the 16” pit. Visual observation of
standing water within 12” of the surface may, under certain
circumatances, be considered a positive indicator of wetland
hydrology (i.e., saturation to the surface) as stated on page 38.
CECW—OR, October 7, 1992. Page 3
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as- I
hhen us i g water table t .n 12” of the surface as an
hydrology, care must e used t co s der condit on and the soil
types (i.e., to ensure that the cipillary ability of the sc ].
texture is considered in rega to the water table depth).
Vegetatjc a toil properties used in the deter ination of
hydrology in the 1989 Manual, are typically riot available for fie
verification of this criterion in the 1987 Manual. However, the
1987 Manual allows for some flexibility with regards to indicator:
of wetland hydrclogy, and states that indicators are not limited
those listed on pages 37-41. Other indicators, such as some type
of recorded data (e.g., soil surveys which provide specific and
strong information about the soil series hYdrology) may be used
verify a wetland hydrology call in a saturated but not inundated
area. Appropriate documentation to support the call is necessary
in all cases.
8.Q. What tength of time must wetland hydrology be present for ar
area to be determined a wetland under the 1.987 Manual?
A. In the hydrology section of-Part III, the 1987 Manual
discusses the hydrologic zones which ware developed through
research at WES to indicate the duration of inundation and/or soil.
saturation during the growing season. Wetland hydrology is defined
in the 1987 Manual as the sum total of wetness characteristics in
areas that are inundated or have saturat.d soils for a sufficient
duration to support hyd.rophytic vegetation. The 1987 Manual
discusses hydrology in terms of a percent of the growing season
when an area is wet (page 36). Generally speaking, areas which ar
seasonally thundatod and/or saturated to the surface for more than
12.5% of the growing season are wetlands. Areas saturated to the
surface between 5% and 12.5% of the growing season are sometimes
wetlands and sometimes uplands. Areas saturated to the surface f a.
less than 5% of the growing season are non—wetlands. The percent
of growing season translates to a number of days, depending on the
length of the growing season in any particular area (e.g., 12.5% or
a 170 day growing season is 21 consecutive days). This system for
the classification of hydrologic zones based on stream gauge data
transformed to mean sea level elevations is useful as a guide to
time frames of wetness sufficient to create wetlands. The length
of time an area is vet for hydrology is based on consecutive days
during th. growing season. If an area is only saturated to the
surface for a period of between 5% and 12.5% of th. growing season
and no clear indicators of wetland hydrology exist (i.e., recorded
or field data; also see answer #7 above), then the vegetation test
should be critically reviewed. Specifically, in.such cases a
vegetativ, community dominated by FAC species would generally
indicate that the area is not a wetland (unless the FAC-neutral
test was indicative of wetlands). The actual number of days an
area is inundated and/cr saturated to the surface for an area to b
called a wetland varies; the identification of an indicator of
recorded or field data is necessary to document that an area meets
czcw-oR, October 7, 1991. Page 4
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the wetland hydrology criterion of the 1987 anual ( .e. , the l .s:
of hydrology indicatos on pages 37-41, wh_ch are to be used in the
preferential order shown; also see questlort ;7). The nu .ber of
days specified in he June 1991 HvdriC $03.15 of the United States
(i.e., usuallylflore than 2 weeks dur3.ng the grow3.ng season) as the
criteria for hyd.riC soils pertains to hyd.r c soils and not the
hydrology criterion of the 1987 Manual, which varies with the
growing season as previously discussed.
9.Q. Will delineations made now under the 1987 CorpS Manual be
subject tO redelineatiort under the revised 1989 Manual after it is
finalized?
A. Wetland determinations made after 17 Aug .ist, 1991, are made
following the guidance provided in the 1987 Corps Manual and
memoranda of 23 & 27 August, 1991 and these questions and answers.
These delineations are subject to arid remain valid for the period
of time described in RGL9O—6. As discussed in IssUe #4 of the
preamble to the proposed revisions to the 1989 Federal Manual for
Identifvina and peiinea in Jurisdictional Wetlands issued 14
August in the Federal Recister, wetland calls made after the
issuance date of these revisions but prior to finalization of the
revised manual may be subject to redelineation under the new manual
at the request of the landowner. Final actions will generally not
be reopened. Wetland calls made under the 1989 Manual are aLready
subject to redelineatiofl under the 1.987 Manual in accordance with
the guidance issued 23 August. Until such tim . as the proposed
revisions to the 1989 Manual are finalized, it i 5 unclear as to
what effect, if any, the equity provision in the preamble to the
proposed revisions will have en the 404 program. Therefore,
written delineations made with the 1987 Manual will explicitly
stats they are final for a period of three years as specified in
RGL 90—6, subject to any equity provisions that may be adopted as
part of implementation of the final revisions to the 1989 Manual.
1O.Q. How does the 1987 Manual compare to the 1989 Manual or its
proposed revisions?
A. The various manuals have been compared by WES and the side-
by-side comparison is vailab1e for your information.
li. ..Q. Will applicants be subject to delay with use of 1987 Manual?
A. During the initial transition to use of the 1987 Manual for
wetland delineations as of 17 August, some delays are unavoidable.
Th. Corps field offices must adhere to the procedures provided in
the 23 August memorandum, while striving to expedite the review
process to the extent possible. No offices hou1d indicate that
they cannot operate due to lack of guidance during this transition
period. HQTJSACE recognizes that there will be delays associated
with implementing the Corps 1987 Manual and we will taXe these
delays into account when reviewing district application performance
CECW—OR, October 7, 1991. Page 5
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4r 1
data (e.g., % of IPs eva1uate 60 day s). C.s :LC s S ou i z
s the perrnit c1cc , but S .ou1 Lr cata ere subs a z . L
j :acts t per .: evaiua iort ;e:: ance have resUlted fr
t 1ementat .on the 1.937 Martual.
CECW-OR, October 7, 1991. Page
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IV-9
Department of the Army, Memorandum for See Distribution: “Clarification and
Interpretation of the 1987 Manual,” (3/8/92)
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I L
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4r 7
— — —:
— .. .
- - -
I
S. _.
S.’ *
c:c -OR
OR ’ NDt . FCR SZ DIS I3tJT20N
Clar .ficaticrt and tar;reta ictt of tie 1987 Manual
1. Th purpose of this memorandum is to provide additional
clarification and guidance concerning the application of the
Cc s of En ineers Wetlands Delireatiofl Manual , Technical Re or
Y—37-1, January 1987, Final Report (1987 Manual). As discussed
in my 20 Februaryl992 memorandum, procedures for the-
identification and delineation of wetlands must be fully
consistent with both the 1987 Manual and the Questions and
Answers issued 7 October 1991. The technical and procedural
guidance contained in paragraphs 2 thru 6 below has been prepared
by the Waterways Experiment Station (WES) and is provided as
further guidance. The following guidance is considered to be
consistent with the 1987 Manual and the 7 October QuestionS and
Answers. Further, this guidance will be presented in the
u coming Regulatory I V wetlands delineation training sessions in
FY 92. The alternative technical methods of data gathering
discussed below are acceptable as long as th. basic decisicn
rules (i.e., criteria and indicators) established in the 1987
Manual are applied. Also enclosed is a revised data form which
may be used in lieu of the routine data sheet provided with the
1987 Manual, if desired. As discussed in my 20 February 1992
‘ memorandum to the field, regional approaches end/or alternative
data sheets must be reviewed and approved by HQUSACE (CECW-OR)
prior to regional implementation. Notwithstanding this
requirement, we encourage interagency coordination and
cooperation on implementation of the 1987 Manual. Such
cooperation can facilitate the continued success of our use of
the 1917 Manual.
2. Vegetation:
a. Basic rule: More than 50 percent of dominant species
from all strata are OBL, FACW, or FAC (excluding FAC-) on the
appropriate Fish and Wildlife Service regional list of plant
species that occur in wetlands.
b. The 1987 Manual provides that the 3 most dominant
species be select.d from each stratum (select 5 from each stratum
if only 1—2 strata ar. present). However, alternative
ecologically based methods for selecting dominant species from
each stratum are also acceptable. The dominance method described
in the 1989 interagency manual is an appropriate alternative
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* 1-s
c:::;-c
s ..- :zc:: c . .a:: :c ar. :a:;:2 -. t-. 1 37 : a-. a:
athcd. (1939 anua1, :. 9, ara. - 3.3) -
c. The 4 vegetat cn strata (tree, sapling/Shr’ b , he: , and
wccdy vine) descr]. ed in t e 1967 Manual are a;pr priaa.
: aver, a 5-strat a; r ach (tree, sapling, shrub, and
c dv vine) is an ac:a tab1e alternative.
d. The 1937 Manual states on page 7 that hydrophytic
vegetation is present if 2 or more dominant species exhibit
morphological adaptations or have known physiological adaptations
for wetlands. This rule should be used only after the basic rule
is applied; use caution with adaptations (e.g., shallow roots)
that can develop for reasons other than. wetness.. -Furthermore-,
the morphological adaptations must be observed on most
individuals of the dominant species. - - - - --
e. In areas where the available evidence of wetlands
hydrology or hydric soil is weak (e.g., no primary indicators of
hydrology), the Facultative Neutral (FAC neutral) option
may be used to help clarify a wetland delineation. Use of the
FAC neutral option is explained in paragraph 35(a), page 23,
of the 1987 Manual. Use of the FAC neutral option is at the
discretion of the District. Further, the FAC neutral option
cannot be used to exclude areas that meat the ubasic vegetation
rule” and the hydrology and hydric soil requirements.
3. Hydrology:
a. Areas which are seasonally inundated and/or saturated to
the surface for a consecutive number of days for more than 12.5
percent of the growing season are wetlands, provided the soil and
vegetation parameters are met. Areas wet between 5 percent and
12.5 percent of the growing season in most years (see Table 5,
page 36 of the 1987 Manual) may or may not be wetlands. Areas
saturated to t -.a surface for less than 5 percent of th. growing
season are non-wetlands. Wetland hydrology exists if field
indicators ar. present-as described herein and in the enclosed
data sheet.
b. To evaluate hydrologic data (e.g., from stream gages or
groundwater wells) growing season dates are required. Soil
temperature regime (i.e., period of the year when soil
temperature at 2 inches below the surface is above 5 C) is
the primary definition of growing season, but data are rarely
available for individual sites. Bread regions based on soil
temperature regime (e.g., mesic, thermic) are not sufficiently
site-specific. For wetland determinations, growing season can be
estimated from climatological data given in most SCS county soil
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C!CW-OR
StTBJECT: Clarification and Inter’ retatiofl of the 1987 Manual
surveys (usually in Ta ].e 2 or 3 of modern soil surveys).
Growing season starting and ending dates will generally be
determined based on the “28 degrees F or lower” temperature
threshold at a frequency of “5 years in 10.” In the south, at
the discretion of the district, it may be more appropriate to use
the 32 degree F threshold.
c. In groundwater-driven systems, which lack surface
indicators of wetland hydrology, it is acceptable to use local
Soil Conservation Service (SCS) soil survey information to
evaluate the hydrology parameter (p. 37 in the Manual) in
conjunction with other information, such as the FAC neutral test.
Use caution in areas that may have been recently drained.
d. Oxidized -rhizospheres surrounding living roots are
acceptable hydrology indicators on a case-by-case basis and may
be useful in groundwater systems. Us. caution that rhizospheres
are not relicts of past hydrology. Rhizospheres should also be
reasonably abundant and within the upper 12 inches of the soil
profile. Oxidized rhizospheres must be supported by other
indicators of hydrology such as the PAC neutral option if
hydrology evidenc. is weak.
4. Soil:
a. The most recent version of National Technical Committee
for Hydric Soils hydric soil criteria will be used. At this
writing, criteria published in the June 1991 Mydric Soils of the
United States ar . current. These criteria specify at least 15
consecutive days of saturation or 7 days of inundation during the
growing season in most years.
b. Local Lists of Hydric Soil Mapping Units recently
developed by SCS and available from county or State SCS offices
give local information about prcsence of hydric soils on a site.
When available, these local lists take precedence over the
national list for hydric soil determinations.
c. SCS is currently developing regional indica ors of
significant soil saturation. Until finalized and adopted, these
indicators may not be used for hydrology or hydric soil
determinations
d. The statement (p. 31 of the 1987 Manual) that gleyed and
lew—chroma colors must be observed “immediately below the
A—horizon or 10 inches (whichever is shallower)” is intended
as general guidance. Certain problem soils may differ.
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c:c - R
S3 C’: C1arificat.: ar .d : 3 i r cf the L 7 ar a:
5. Methods:
a. As stated in the 1987 Manual (footnote, p. 76),
alternative plot sizes and dominance measures are acceptable.
b. For comprehensive determinations involving a patchy or
diverse herb layer, a single, centrally located 3.28 x 3.28-
foot qi adrat may not give a representative sample. As an
alternative, the multiple—quadrat procedure presented in the
1989 Manual (p. 42) is recommended.
6. Problem Areas
a. Page 93, paragraph 78 of the 1987 Manual states that
similar problem situations may occur in other wetland types;
therefore, problem areas are not limited to this list.
b. Problem soil situations mentioned elsewhere in the
Manual include soils derived from red parent materials, some
Entisols, Mollisols, and Spodosols.
7. Questions concerning this information should be directed to
Ms. Karen A. Kochenbach, MQUSACE (CECW—OR), at (202) 272-1784, or
Mr. James S. Waiceley, WES, at (601) 634—3702.
End E. WILLIAMS
Major General, USA
Directorate of Civil Works
DISTRIBUTION:
(SEE PAGE 2 & 3)
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‘v-b
Environmental Protection Agency
Memorandum from Gerald Yamada, Acting General Counsel,
U.S. EPA to Josephine Cooper, Asst. Adm. for External Affairs, U.S. EPA, “Issues
Concerning the Interpretation of 404(1 ) of the Clean Water Act,” 2/8/85
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1’ a
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•• t f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 20460

FEB -8 9
CF ’ Z C’
CR A CCLI
EMO P _ kN D U
TO Josephine S. Cooper -
Assistant AdmirliStra,tor for External Affairs (A-100EA)
FROM Gerald H. yamad4/ ” -- ‘- - -
Acting Gener 9 ) ’COUt1sel (LE-130-)
SUBJECT Issues Concerning the Int rpretatiOfl
of 404(f) of the Clean Water Act
You have asked for guidance clarifying the application of
section 404(f) of the Clean Water Act (CWA) and its implementing
regulations to the expansion or intensification of farming
operatiofls. / This memorandum provides general guidance on
the interpretation of the applicable law and regulations as
they relate to that topic. It is intended to assist EPA and
Corps of Engineers personnel in understanding and consistently
applying section 404(f) and in explaining that section to the
public.
I. General
At the outset, it should be stressed that section 404
jurisdiction extends only to point source discharges of dredged
or fill material into waters of the United States. Section 404(a).
Unless an activity involves such discharges into such waters,
it is not subject to section 404, and there is no need to con-
sider the applicability of section 404(f). Thus, activities
confined to those portions of a property which have been deter-
mined by EPA or the Corps of Engineers, as appropriate, not to
be waters of the United States do not need a section 404 permit,
regardless of what the activities are.
11 EPA is charged with the ultimate administrative responsibility
— for interpreting section 404(f). See Op. Att’y Gen., Sept. 5,
1979.
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4”.-
-2-
If an actLvLtY does involve a discharge of dredged or fiLl
material into waters subject to the Act, then Lt is relevant
to consider whether the activity LS exemDt under se:tLC
Section 404(f)(1) states that
Except as provided in paragrapri (2) of ch s
suDsection cne discharge of dredged cr fill
material [ from activities specified n (A)
through (F)] not prohibited by or otherwise
subject CO regulation under ChLS section or
section 301 (a) or 402 of this Act (except for
effluent standards or prohibitions under
- section 307)
Section 404(f)(2) , commonly referred to as the “recapture
provision.” provides:
Any discharge of dredged or fill material into the
navigable waters incidental to any activity having as
its purpose bringing art area of the navigable waters,
into a use to which it was not previouslY subject,
where the flow or circulation of navigable waters may
be impaired or the reach of such waters be reduced,
shall be required to have a permit under this section.-
Thus, in order to conclude that a given discharge activity is exempt
from regulatiofl one must determine not only that it falls within
section 404(f)(1) , but also that it is not recaptured under section
404(f) (2).
Discharges which are not exempt under section 404 must
be evaluated through the appropriate permit process. If the
permit issuer determines the discharges comply with the section
404(b)(1) guidelines and other applicable criteria, they may
be authorized by a suitably conditioned permit.
Section 404(f) was enacted in 1977 as part of the mid-course
corrections to the CWA and in response to public reaction to the
Corps’ expansion of its section 404 jurisdiction following the
decision in NRDC v. Cal1aw y , 392 F. Supp. 685 (D.D.C. 1975).
In very gene il terms, the legislative history indicates that
section 404(f) reflects a trade-off between activities and
geographic jurisdiction; that is, a decision by Congress to
explicitly exempt certain activities which it never intended
to regulate or which are sufficiently minor so as not to require
scrutiny through the permit procesS while maintaining the
program’s broad geographic jurisdiction because of the latter’s
importance to the purposes of the Act. However, as noted irz
the preamble to EPA’S first proposed regulations implementing
section 404(f), 44 Fed . 34263 (June 14, 1979), the inter-
pretation of the sec ion is exceptionally complex, because of
the need to work with the language of the statute and the
extensive but sometimes ambiguous or inconsistent legislative
history.
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-3-
EPA first proposed regulations interpretL 2 seCtLon 4O (f)
on june 14, 1979. After consideratLon of the n eroU5 co ne ts
and following close consultation with the Coros, E?A Du l:s ed
final seCtLOfl 6O (f) regulatiOnS on ay 19, 1980, as cart of
cs ConsolLdaed ?er it RegulatlOr.S.’ 40 CFP. 123.91. Eci:h
the proposed and final regulation were acconDanied by extensL ;e
prea ble5. On July 22, 1982, the Corps of Engineers Lnccr ora:e
EPA’s 404(f) regulations into its own perDLt regulations (at
33 CFR 323.4) verbatim, except for (with EPA’S concurrence)
snail changes to the definition of “minor drainage” and to the
description of facilities associated with irrigation ditches. 2/
EPA r codified its 1980 section 404(f) regulatiOns as 40 CFR —
233.35 on April 1 , 1983. References in this memoranC . will
be to 40 CFR 233.35.
On its face, section 404(f) does not provide a total,
automatic exemptiOn for all activities related to agriculture.
Rather, section 404(f)(1) exempts only those agricultural
activities listed in paragraphs (A) through (F) , namely certain
“normal” farming practices (404(f)(1)(A)) , certain ditching
activities (404(f)(1)(C)) , farm roads meeting specified criteria
(404(f)(1)(E)) , and other discharges covered by best nanagene t
practices developed through an approved section 208(b) (4)
program (4O4(f)(1)(F)) .. / In addition, even discharges which
are associated with the activities listed in section 4Q4(f)(1)
are not eligible for the exemption if they involve toxic
materials 4/ or if they are recaptured by section 404(1) (2)
The legislative history leaves little doubt that Congress
intended to limit the environmental effect of the exemptiOnS by
2/ The amended irrigation ditch provision was challenged in NWF
— v. Marsh , D.D.C., Civ. No. 82-3632. As part of the settlement of
that case, EPA and the Corps agreed to the proposal of new wording.
Final regulations reflecting the settlement were published on
October 5, 1984. See pp. 7-8, infra.
3/ As noted in the preamble to the 1979 proposed regulatiOnS
— if 6 04(f)(1)(A) covered all kinds of farming activities,
there would be no need to pro Tae for ditches, ponds, and
roads in 4Q4(f)(1)(C) and (E). 44 Fed. Reg . 34264.
4/ Most farming operations will probably not involve dischcrga3
— containing toxic pollutants. However, should the soils to
be discharged contain substances such as pesticides listed a
toxic pollutants pursuant to section 307, a permit would be
required. See 40 CFR 233.35(b).
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deLn g thefl narrowly and by clud rg section c (f (2). c/
As Senator MuskLe out tt, ‘New subsection 0 (f) prov OeS t a
Federal permLts will not be recuired for those narrowly defined
acc ivlties chat cause little or no adverse effects eitner r-
v duallVor cunulativel’ . 3 Le . HiSt. 47 (e r aE5 adce )
arI , id. at 20, and Senator a1lco
id. at 530. The nu erous scatenents concerning what secLon
Td ot exe o are also tellln2,. For exa le, Senator Musk:c
exol ed, ‘ [ Tihe exe oti0ns do not acoly to discharges c ac cor-
vert extenS e areas of water to dry land or inpede c rculat cn
or reduce the reach or size of the water body.” 3 Lea. Hist . L7
see also statenent of Senator aker, id. at 523. Sen cor
Stafford stated, “ [ Plermits will continue to be recurred for c cre
farm, forestry, and mining activities that involve toe discharge
of dr adged or fill material that connect [ sic - presunaoly totericed
to be “convert”] water to dry land including, for exanole, those
occasional farm or forestry activities that involvC dikes, levees
or other fills in wetland or other waters.” 3 Lec. Hist . Z 85. See
also, Senate Report, 4 Lea. Hist . 710 (oermit review necessary for
discharges tO convert aTh rdwood swamp to another use through di’ :es
or drainage channels) .6/
5/ This legislative history was relied on by the principal
— reported court decisions construing section 401.(f) , AvoyelleS
Sportsman’s League v. Alexander , 473 F. Supp. 525, 535-536 (U.D.
La. 1979) and AvovelleS Sportsman’s League v. Marsh , 715 F.2d 8 7
(5th Cir. 1983). The district cou.rt held that the exemptionS
should be narrowly construed and that under section 404(f)(1)(A)
only activities that are part of an ongoing agricultural or ongcLr
silvicultural operation were intended to be exempted. (This
holding preceded the regulations, and hence simply interpreted
the statute, without weight being given to EPA’s regulations
interpreting the statute.) On appeal, the Fifth Circuit affirmed
the district court’s result, but found it unnecessary to decide
the challenge tO the district court’s limitation of 404(f)(1)(A)
to “established” operations since application of section 404(f) (2)
would lead to the same result.
The legislative history cited in this memorandun has also
been relied on in two recent unreported decisions, United States v.
Huebner , No. 83-3140 (7th Cir. January 11, 1985); United States v.
Akers , Civ. S-84-1276 RAR (E.D. Cal. January 15, 1985).
6/ There has been a contention that the references in the legis-
lative history implying that agricultural activities as a
class are best regulated by the states (i.e. not by the Corps)
supports a broad exemption. However, such references are either
to the “Bentsen” amendment, which was rejected, or to activities to
be addressed under section 208 plans. When it authorized section
208(b)(4) programs as part of the 1977 amendments, Congress assutced
that states would use such programs to control “ uasi-pOiflt source”
silvicultural or agricultural activities in order to obviate the
need for a Federal permit. See, e.g. statement by Senator Stafford,
4 Leg. Hist . 911-912. However, to date no state has an approved
208(b) (4) plan which would qualify for exemption any agricultural
activities not otherwise enumerated in section 404(f)(1)(L)(E).
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c
— S —
Thus. Ln dece nLrtg whether discharges assoc:aed
expansion or ntensificatLon of rar ng in ;ate S of t e
united States are exe pc, the Lssue s w etner d:scha : e
actiVities in question are among those s ec:fically liscec:
sectLons 4O (f)(1)(A) through (F) and, if so, whethe: sec:io
40 (f)(2) recaocures them. The ne: :t sec:’ on of this eooranc
discusses oer: ent Doints relating to the sDecif:c Drov sLons
of 4O (f)( 1 ), as ncerpreced by exist ng reg latiOflS.
IL. Sect:on £ 4 QL(f)(1)(A) - (F’
Section 4OA.(f)(1)( lists discharges of dredged or fill
material from “normal farning, silviculture, and rancr.:ng
activities, such as plowing, seeding, cultivating, minor drainage,
harvesting for the productlon of food, fiber and Eores: products,
or upland soil and water conservation practices.” The mplemencLn
regulation quotes this language, and then explains that section
(f)(1)(A) is limited to activities which are part of an “established
(i.e., ongoing) farming, silvicult .1re, or ranching operation,”
gives examples of what is and is not “established,” and defines
the listed activities (see 40 CFR 233.35(a)(1)(i) and (ii)).
This “established” requirement is intended to reconcile the
sentiments in the legislative history that although section
404 should not unnecessarily restrict a farmer in continuing
to farm his land 7/, discharge activities which could destroy
wetlands should be regulated I
Several points should be kept in mind in deciding whether
this “established” requirement is met in a given case. First,
to fall within 404(f)(1)(A) , the specific cultivating, seeding,
plowing, etc. , activity need not itself have been ongoing as
long as it is introduced as part of an ongoing farming operation.
For example, a farmer may decide to initiate “minor drainage”
for the emergency removal of blockages in an area already
being farmed (see 40 CFR 233.35(a) (1) (iii) (C) (1) (iv) , definition
of “minor drainage”) . Similarly, if crops have been grown and
harvested on a regular basis, the mere addition of a cultivating
step to that farming operation is not inconsistent with the
operation being an “established” one for purposes of section
404(f)(1)(A). (Of course, the mere fact that there is an
“established” operation under section L 04(f)(1)(A) does not
foreclose the possibility of recapture under section 404(f) (2).
See pp. 9-11 infra.)
7/ See, e.g., statement of Rep. Stump, 3 His . 418.
8/ See, p. 4, supra . An assumptiOn in both the regulation
and the legislative history is that ongoing farming opera-
tions normally are not carried on in waters of the United
States (unless perhaps specializing in a wetland crop like
rice or cranberries) , and hence that ordinarily there is little
basis or purpose to apply section 404 to ongoing operations.
See, e.g. statement of Senator Muskie, 4 Leg Hist . 869.
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4 ’
Second, the thrust of the last three sentences n sec::on
233.35(a)(1)( ) s to ensure that the “establLshed” recu re ie
is used neither too restrictively (e.g., to block use of a
conventional rotational cycle) nor too loosely (e.z. , to allow
the fact that an area has been tinbered or Earned at ar::
n historY to autO attcallY nake it an ongoLng farn or fo es
cDeracLo ). To gi ard against the latter, the regula: on sets
out two alternati’e tests to be used to detcL- Lne whether
there LS no longer an on Oing operation on a previously far ec
area, i.e. , whether a new, non-farming use has taken place Lfl
the Lnteritfl or whether the area is no longer in a concition
such that farming could resune without hydrologic mod .f ication.
See United States V. Akers, su ra , for an example of a plicat ion
of thTs “established” re uiremeflt.
The regulations (and preamble) define in some detail the
specific “normal” activities listed in section 404(f)(1)(A).
Three points may be useful in the present context. First, as
explained in the 1979 preamble, the words “such as” have been
interpreted as restricting the section “to the activities named
in the statute and other activities of essentially the same
character as named”, and “preclude the extension of the exemption
to activities that are unlike those named.” 44 Fed . Reg.
34264. Second, plowing is specifically defined in the reg T’
tions not to include the redistribution of surface materials
by grading in a manner which converts wetland areas to uplands
(see 40 CFR 233.35(a)(1)(iii)(D)).
The third point relates to the definition of “minor drainage.”
Because of the numerous statements in the legislative history
that draining wetlands-was not exempt under section 404(f) , 9/
and because section 404(f)(1)(C) makes it clear that discharges
from the construction of drainage ditches are not exempt, the
“minor drainage” definition was carefully crafted to describe
very specific drainage activities which were identified and
judged through rulemaking to be necessary components of normal
operations but to have minimal adverse effects. Thus, subpara-
graphs (1)(ii) and (1)(iii) of the minor drainage definition are
limited to discharges associated with continuation of established
wetland crop production (see 40 CFR 233.35(a)(1)(iii)(C)).
Although those activities may involve pluaging ditches and re-
building small rice levees, for example, paragraph (2) of the
minor drainage definition stresses that the term “does not in-
clude the construction of any canal, ditch, dike or other
waterway or structure which drains or otherwise significantly
modifies a ... wetland or aquatic area constituting waters of
the United States.”
9/ See, e.g., Senate Report, 4 Leg Hist . 709, as well as the
references cited supra , at p74.
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—7—
Sectlofl 4O (f)(l) i - This subsection covers discharges
resul: ng from maintenanCe, including emergency reconstruction
of da ageo parts, of currently serviceable structures. The
regulatiofl after repeating the statutory language, states
that “maintenance does not include cnanges n character
scope or size of the originaL fill design, and requires t a:
emergencY wor take place a reasonable time after damae.e occurs
(see .0 CFR 233.35(a)(2)) . Thus, discharges to increase the
height or length of a dike are not covered by this secc on.
Section 404(f)(1)(C ) - The statutory language a? Lies o L;
to th ”coflStrUction or maintenance of farm or stock ponds or
irrigation ditches, or the maintenance of drainage ditches.
A brief history of the regulations interpreting this
provision is in order, as they have been modified several times
insofar as they relate to irrigation ditches. EPA’S initial
regulations (May 19, 1980) supplemented the statutory language
by specifying that connections and certain other work related
to irrigation ditches were included in the exemption. 10/ In
July 1982, EPA authorized the Army to replace that sup TementarY
language with a simplified wording which EPA felt was consistent
with its interpretatiOn. 11/ Thus, section 323.4(a)(3) of the
Corps’ July 22, 1982 regut tions included the follo’ .7ing
statement:
Discharges associated with irrigation
facilities in the waters of the U.S. are tncluded
within the exemption unless the discharges have the
effect of bringing these waters into a use to which
they were not previously subject and the flow or
circulation may be impaired or reach reduced of
such waters.
10/ . . . A simple connection of an irrigation return
— or supply ditch to waters of the United States and
related bank stabilization measures are included
within this exemption. Where a trap, weir, grain,
wall, jetty or other structure within waters of the
United States which will result in significant dis-
cernable alterations tO flow or circulation is con-
structed as part of the connection, such construction
requires a 404 permit.
The rationale for this expansion was that all irrigation ditches
need connections in order to function. Unless the connoction ‘ iare
exempted, too, the provision would have no meaning.
11/ See, letter from Anne Gorsuch to Senator Hart, dated
— January 5, 1982.
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-8-
This latter language was challenged ifl tUF v. Marsh as L properlV
expandLflg the statutOrY exe nptiofl , and new, clearer language was
developed under the settlenent agreenent. Followig rulenaki’ g,
EPA and the Corps approved the following substitute largua e,
wnich was UDlLS ed as a final regulation effec::ve Cccoo r ,
1 984
Discharges associaed ;ith sipnons, pu ps,
headgateS, wingwalls , wiers, diversion structures
and other such facilities as are aDpurtenant and
functiOnallY related to rrLg ion GL cnes are
included in this e: enptiOfl.
The preamble to the 1984 regulatiOn e p.cLns at the rew
wording is intended to clarify the type of irrLgation structureS
involved.
“Irrigation” discharges which occurred while the July 22,
1982 regulations were in effect probably should, as an equitable
matter, be evaluated under the 1982 language, even though EPA’&
1980 language remained on the books; however, the 1982 language
must of course be interpreted in light of the statutory language,
EPA’S basis for approving the change, and the explanation
accompanying the 1984 clarificatiOn. Thus, even under the
Corps’ 1982 regulati0fl exempted irrigation facilities r u t at
a minimum be appurtenant to irrigation ditches .
Another issue which has been raised is the applicabi -itY of
section 404(f)(l)(C) to construction of ditches which can serve
as either irrigation or drainage ditches. The regulations and
preamble do not explicitly address this issue. However, since
the statute clearly does not exempt the construction of drainage
ditches, 12/ and the legislative history indicates that limitation
was deliberate and important it follows that dual function
ditches 13/ should be considered drainage ditches, i.e., their
construction is not exempt.
One final point should be made about section 4Q4(f)(l)(C).
Because neither that section nor the implementing regulations
have an “ongoing” requirement. it is immaterial for purposes of
section 404(f)(1)(C) whether an irrigation ditch waters an area
which was previously irrigated or indeed whether the area was
previouslY farmed at all (although such facts could be highly
relevant under section 404(f)(2)) .
12/ It does exempt maintenance of drainage ditches. Maintenance
— includes removal of accumulated debris and silt.
13/ Of course, a ditch is not considered “dual function”
— in this sense if the water it carries a ;ay ic not water
which contributes to the maintenance of waters of the United
States (e.g., wetlands) but rather is simply irrigation return
flow.
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471
_Q -
Section 604(f)(1)(D ) - This section re 1 _a:eS only cc
conscrUctLot of temporary sedimentation basins on conscructLon
sites, not to the actual bu ldiflg or ocher s: uc: re beLng
constructed.
SectIon L O (f)(L)(E ) - This section covers fa , fores:,
anc c porary in ng roads, provided tbey re
constructed and rna:ntained in accordance w:t ’
best management practIces to assure that flow
and circulation patterns and chem caL and
biological characteristics of the navigaDle
waters are not impaired, that the reach of the
navigable waters is not reduced, and that any
adverse effect on the environment will be other-
wise minimized.
EPA’S regulations translate these statutory criteria into
a n ber of best management practices (BMP’s) (see 40 CFR
233.35(a)(5)) . If a farm road is built in accordance with
those B 1P’s (and in the case of a state 404 program. with any
additional BMP’s specified by the state), it is deemed to meet
the criteria of section 404(f)(l)(E).
Section L 04(f)(l)(F ) - As discussed above, this provision
is designed to cover activities controlled under an approved
section 208(b) (4) program, and therefore is inoperative where
a state does not have an approved 208(b)(4) program. To date,
no state has such a program.
iii. Section 404(f)(2 ) -
As noted above, if a discharge activity falls within the
scope of the specific 404(f)(1)(A) - (F) subsections just
described but does not pass muster under section 404(f) (2),
it is not exempt from regulation. The applicable regulations,
40 CFR 233.35(c) provide:
Any discharge of dredged or fill material into
waters of the United States incidental to any
of the activities identified in (f)(l)(A)-(F)1
must have a permit if it is part of an activity
whose purpose is to convert an area of the waters
of the United States into a use to which it was not
previously subject, where the flow or circulation
of waters of the United States may be impaired or
the reach of such waters reduced. Where the
proposed discharge will result in significant
discernible alterations to flow or circulation, the
presumption is that flow or circulation be
impaired by such alteration.
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- - -
{Note For example. a permit wil:. be rec u:r d
for the conversion of a cypress swar ’p to some
other use or the conversion of a wetlat d froi
s lv cultural to agricultural use when there
s a d scha:ge of dredged or ll acer ia S to
waters of the United States in conjunction
construction of dikes, drainage d :ch or other
works or structures used to effect such conve:s on.
A discnarge which elevates the Dottom of waters
of the United States without converting it to
dryland does not thereby reduce the reach of,
but may alter the flow or circulation of, waters
of the United States.1
Section 404(f)(2) has two requirements the “new use”
requiremeflt and the “reduction in reach/impairment of flow or
circulation” requirement. Although both requirements must
be met, it is the interpretation of the first that raises the
most questions.
The legislative history discussed earlier leaves no doubt
that the destruction of the wetland character of an area (i.e.
its conversion to uplands) is a change in use of the waters of
the United States, and by definition also a reduction in their
reach, within the meaning of section 404(f)(2). The fact that
some farming operations may have previously been conducted in
the wetland without altering its wetland status, or that some
new operation could theoretically be conducted without a dis-
charge, does- not mean that discharges associated with an opera-
tion which does convert the wetland are exempt. Conversely, if
there is already an established farming operation in a wetland,
any discharges resulting from farming activities listed in the
regulation which do not convert the wetland to upland are
exempt, whether or not there is an intensification of farming,
change in crops, etc. Similarly, discharges from the construc-
tion of irrigation ditches 14/ are exempt, even if they affect
a wetland, as long as they do not convert the wetland to upland,
bring it into initial farming use, or otherwise bring a water
of the United States into a new use, and reduce or impair its
reach, flow, or circulation.
To give some concrete examples, if there is an established
hay harvesting operation in a wetland, discharges associated with
the activities listed in 404(f)(L)(A) would riot need a permit,
even if new agricultural crops were introduced, as long as the
14/ Per discussion above, this means ditches strictly for
irrigation, not dual function ditches.
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I 7
— — H —
we:land was not destroyed. f annual ‘upland’ crops 15’ co’_Ld
grown in the wetland (during trie cir’j season, esu hLv) : ou.
such an effect, their introauCtiCfl uoul no: : £2 ei: :na: -c
the exenotiOn. Conversely, f the lis ecj faint ac:’ : o
are eroloyed to grow a perenn:al uolanc croo uiiC can o:
surv ve n a wetland, it foLLows that estahi s ng t : croo
so t a: it survLves fron year to year ‘a il requ r ef ec:: -
elin nat:rig :ne wetland, the associated d schargec wouLd o: -
be exe npt (since elimination of the wetland wo ld te bct
“new use” and a reduction n reach)
Finally, it should be noted that tn order to tr:g er t e
recapture provisions of 404(f)(2), tne discharges thenselves
do not need to be the sole cause of the destruc: on of the
wetland or other change in use or sole cause of the reduc:ton
or imoai ent of reach, flow, or circulation of waters of the
United States. Rather, the discharges need onlybe “ nc dental
to” or “part of” an activity which is intended to or will
forseeablv bring about that result. Thus, in applying section
404(f) (2) , one must consider discharges in context, rather than
in isolation.
If additional questions arise concerning the inter retatiori
of section L 04(f) which are not addressed by this mer orandu ,
please contact ne or Cathy Wirier of my staff.
15/ Such labels should he used cautiously in this conte: t.
— The controlling factor is whether establishing the cro
is compatible with the area’s remaining a wetland, not what
the plant label is.
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4 74.
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‘v-il
Department of the Army - Corps of Engineers
Environmental Protection Agency
“Guidance on Judicial and Criminal Enforcement Priorities”
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47C
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United States Environmental Protection Agency
United States Department of the Army
GUiDANCE ON JUDICIAL CWIL AND CRIMINAL
ENFORCEMENT PRIORITIES
BACKGROUND
This document provides guidance to the Environmental Protection Agency (EPA)
Regions and Army Corps of Engineers Districts on enforcement priorities for
unauthorized discharges of dredged or fill material in waters of the United States in
violation of section 301 of the Clean Water Act (CWA). Unauthorized discharges
include both discharges that are unpermitted and discharges that violate permit terms
or conditions. The guidance enumerates factors enforcement personnel should consider
when deciding whether to refer a case for judicial action. By providing this guidance,
EPA and the Army intend to encourage consistency in the manner in which e enforce
the CWA’s requirements nationally, protect the integrity of the section 404 regulatory
program, and direct limited program resources in a manner that produces the most
beneficial environmental results.
Options to address CWA violations include: no action, voluntary.compliaflCe, cease
and desist orders, EPA administrative compliance orders, interim measures designed to
protect the aquatic ecosystem from further damage, after-the-fact permits,
administrative penalty orders, and civil and criminal judicial actions. This guidance
discusses priorities for civil and criminal judicial actions only. By defining priorities for
judicial actions, EPA and the Army do not intend to suggest that the agencies limit
their use of these or any other enforcement options. In fact, the agencies should
continue the use of all enforcement options whether in conjunction with or instead of
civil and criminal proceedings.
CIVIL AND CRIMThAL ENFORCEMt PRIORITIES
A. Civil judicial cases
Decisions on whether to refer a civil action to the Department of Justice must be
on a case-by-case basis, and the absence or presence of one or more of the following
factors should not necessarily dictate a decision regarding a particular case.
Nevertheless, enforcement personnel should consider the following factors when
deciding whether to refer a civil action:
1. Quality of the waters affected . Enforcement personnel should determine, to the
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extent practicable, what functiOflS and values the waters performed prior to the
unauthOfl.Zed discharge. Regions and Distncts should give priority to violations that
affect wetlands and other special aquatic sites.
2. hn aCt of the discharge . Enforcement personnel shou’d determine, to the
extent practicable the amount and content of the discharge, the number of acres
affected by the discharge, and the discharge’s direct and indirect effects. Priority should
be given to those discharges that have an especially deleterious effect on wetlands
functions or values, that affect a large area of wetlands or other waters, or that are
widespread and have significant cumulative effects. These would include unauthorized
discharges with significant adverse effects on aquatic ecosystem diversity, productivity,
and stability such as loss of fish or wildlife habitat or loss of the capacity of a wetland
to assimilate nutrients, purify water, or reduce wave energy. Judicial enforcement
action would normally be appropriate, for example, for unauthorized discharges that
cause or contnbute to violations of state water quality standards; violate any applicable
toxic effluent standard or prohibition under Section 307 of the CWA; or jeopardize
endangered or threatened species and their designated critical habitat. Judicial
enforcement action should be considered for any case where unauthorized discharges
did or may cause or contribute to significant adverse environmental impacts. -
3. Culpability of violatQr± Enforcement personnel should consider the violator’s
prior compliance history when determining what type of enforcement action is
appropriate. Priority should be given to violators with a history of noncompliance and
those who commit knowing violations. The violator’s experience with the program and
whether he or she had been the subject of previous enforcement actions are
considerations. In general, repeat violators warrant judicial action, regardless of
whether the violations occurred on the same site or on different sites. Repeat
violations, however, are not a prerequisite for referring a civil case to the Department
of Justice.
4. Deterrence vali Enforcement personnel should consider the extent to which
the violation is flagrant, visible, and well-publicized. If there are a number of violations
within a particular geographic area or industry, civil judicial action against one or more
of the violators can provide excellent deterrence. The agencies should refer for civil
action a case against any violator whose actions, if left unpunished, would have the
effect of jeopardizing the integrity of the section 404 program in the area where the
violation occurred.
5. Benefit from the violatiom Enforcement personnel should consider the
economic benefit a violator derived from the unauthorized discharge. Because
administrative penalties are limited, when a violator has obtained a significant economic
benefit from the discharge, a civil judicial action may be the only enforcement option
that can effectively recover that benefit.
2
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6. Equitable considerations . In addition to the above five factors, the Regions
and DistnctS ‘viii want to anticipate and evaluate the strength of any equitable
considerations likely to be raised by potential defendants. Prionty should be given to
recent and ongoing violations. Regions and Distncts should also take into account, as
appropnate, when the Region and/or Distnct learned of the violation, and whether
timely administrative attempt.s to achieve compliance were unsuccessful and a c il
referral is the only avai-lable means to obtain needed injunctive relief.
Another equitable consideration is whether the violator received misinformation
from the federal government as to whether the discharge required a section 404 permit.
Based on e sting case law, the federal government can only rarely and in very limited
circumstances be barred from enforcing its laws. At the same time, an important goal
of federal enforcement, including section 404 enforcement, is fair and equitable
treatment of the regulated community. As a result, the Regions and Districts will need
to carefully consider the appropriateness of initiating a civil Suit in cases where the
violator may have reasonably relied on a federal official’s misrepresentations regarding
the need for a section 404 permit. This includes Situations where the violator was led
to believe that the activity did not constitute a discharge, that the discharge did not take
place in waters of the United States, or that a general permit covered the discharge.
When determining whether the violator’s reliance was reasonable, enforcement
personnel should assess such factors as whether the misrepresentations were made by
EPA or the Corps, the two federal agencies charged with implementing the section 404
program, or another federal agency; whether the misrepresentations were communicated
to the violator in writing or were merely oral statements; the extent of the violator’s
familiarity with the section 404 program; and whether the violator knew,’ should have
known, or with reasonable diligence could have determined, that the representations
were erroneous.
The first two factors listed above center upon the environmental effects of the
violation. Special attention should be paid both to violations that damage large areas
of wetlands and those that impair valuable wet’ands, no matter what their size. The
next three factors are intended to protect the integruy of the section 404 program by
focusing enforcement priorities first on individuals or violations which show disdain for
the law and on those who seek to benefit from circumvention of the law.
B. Criminal cases
With regard to the discharge of dredged or fill material, section 309(c) of the CWA
provides criminal penalties for four separate offenses. First, anyone who negligently
violates section 301 (e.g., engaging in unauthorized discharges) or who negligently
violates the requirements of a section 404 permit may be criminally liable. Second,
anyone who knowingly violates section 301 or the requirements of a section 404 permit
may also be subject to criminal liability. Third, any person who violates section 301 or
3
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0 ’
the conditiOnS of a section 404 permit and, in doing so, knowingly endangers another
person may be subject to criminal penalties. Finally, section 309(c) provides criminal
sanctions for persons who knowingly make false material statements regarding a section
404 permit.
In some instances a violation will involve circumstances which indicate that a
criminal prosecution may be in order. Such circumstances should be underscored when
the case is referred to the Department of Justice. Ultimately, Justice must exercise its
discretion as to whether or not to proceed criminally in any case. If there is a
possibility of criminal prosecution, field personnel should pay special attention to
evidentiary matters such as sample preservation, content of statements to and from any
potential defendant, good photographs, and chain of custody.
This document provides internal guidance for field personnel regarding the exercise
of their enforcement discretion. Accordingly, this document creates no rights in third
parties.
For the Environmental Protection Agency:
fr i D D G. $VIS Data ‘ ‘ REDERICK F. STIEHL ‘Date
0 Di ’ctor / Associate Enforcement
Office of Wetlands Protection Counsel for Water
For the Chief of Eirginev
P. ELMORE Da 1
iief, Operations, Construction,
and Readiness Division
Directorate of Civil Works
4
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IV-12
Environmental Protection Agency
Memorandum from LaJuana S. Wilcher, Assistant Administrator for Water and James
M. Strock, Assistant Administrator for Enforcement, U.S. EPA, to Regional
Administrators, “Final Clean Water Act Section 404 Civil Administrative Penalty
Settlement Guidance and Appendices” (12/14/90)
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4 tt
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4B:
- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
-0
DEC 141990
MEMORANDUM
SUBJECr: Final Clean Water Act Section 404 Civil Administrative Penalty
Settlement Guidance and Appendices
FROM: / LaJuana S. Wilcher// i’ i /
Assistant Administfator ‘
I for Water
James M.
Assistant Administrator
for Enforcement
TO: Regional Administrators
Attached is final guidance entitled, “Clean Water Act Section 404 Civil
Administrative Penalty Guidance on Calculating Settlement Amounts,” and
accompanying appendices. The Guidance is for use by Regional wetlands staff and
Office of Regional Counsel attorneys to develop a bottomiine penalty settlement
amount in Section 404 Class I arid Class [ I adrnmistrative penalty actions. The
principles of this Guidance are also applicable when developing bottomline penalty
settlement amounts in Section 404 civil judicial referrals.
The aet ched Guidance and appendices were jointly developed by the Office of
Wetlands P tio . (OWP) and the Office of Enforcement - Water (OE.Water), with
valuable in m a workgroup comprised of Regional and Headquarters
representativ . The convening of this work oup was extremely helpful in reaching
consensus on the Guidance and we greatly appreciate the Regional participation. The
calculation methodoIo ’ set forth in the Guidance is consistent with the statutory
language on determining administrative penalty amounts and with the Agency-wide
penalty policy.
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CLEAN WATER ACT SECTION 404 CIVIL
AD1 vflNTSTRATWE PENALTY ACTIONS
GUIDANCE ON CALCUlATING SEVrLEMENT AMOUNTS
INTRODUCflON
Section 309(g) of the Clean Water Act (CWA) (as amended by the Water
Quality Act of 1987) authorizeS the Environmental Protection Agency (EPA) to assess
administrative penalties for, among other things, unauthorized discharges of dredged or
fill material into wetlands and other waters of the United States. Since the CWA is a
strict liability statute, knowledge of the law’s requirements is not a prerequisite to
bnnging a civil enforcement action. Section 309(g) establishes two classes of penalties,
which differ with respect to procedure and maximum assessment, for such violations. A
Class I penalty may not exceed “$10,000 per violation,” and a maximum amount of
$25,000. A Class II penalty may not exceed “$10,000 per day for each day during which
the violation continues,” and a maximum amount of $125,000. A violation begins when
the dredged or fill material is illegally discharged, and separate violations continue to
occur each day that the illegal discharge remains.
This document provides guidance for EPA staff on calculating a penalty that
EPA may accept in settlement of a Class I or Class II administrative penalty proceeding
for a Section 404 violation. 1 The guidance is designed to promote a more consistent,
nanonal approach to the assessment of penalty settlement amounts, while allowing EPA
staff to exercise discretion in arriving at specific penalty settlement amounts for
particular administrative penalty actions. 2
Although this document was developed for settlement of administrative penalty
cases, the principles of the administrative penalty settlement criteria are also applicable
to judicial cases. Thus, this document should also be used to calculate judicial penalty
settlement amounts, except that the suggested dollar amounts in the Section 404 penalty
‘For information on other aspects of administrative penalty actions, see the
attached Appendix B, which is entitled, “Complementary Guidance on Clean Water Act
Section 404 Civil Administrative Penalty Actions.”
2 See the January 1989 Section 404 Enforcement Memorandum of Agreement
(MOA) between EPA and the Department of the Army for the policy and procedures
regarding EPA and Corps implementation of Section 404 enforcement responsibilities,
including initiation of Section 309(g) administrative penalty proceedings.
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matrix (see page 5) will not necessarily be applicable since judicial penalty amounts are
not limited by the administrative penalty caps. Users of this document should
remember that most Section 404 judicial settlements also require injunctive relief.
STATUTORY AND S LEMENT PENALTY FACTORS
Section 309(g)(3) of the CWA addresses the factors to consider when
determining an appropriate penalty amount. It states that the Agency “shall take into
account the nature, circumstances, extent and gravity of the violation, or violations, and,
with respect to the violator, ability to pay, any pnor history of such violations, the
degree of culpability, economic benefit or savings (if any) resulting from the violation,
and such other matters as justice may require,” 33 U.S.C. Section 1319(g)(3).
The factors found in Section 309(g)(3) form the basis of the Agency’s initial
proposed penalty in the administrative penalty complaint. As a general rule, the
Regions should plead a specific dollar amount (as opposed to “up to” the maximum
penalty) when drafting the administrative penalty complaint. For more specific
information on pleading practices and related issues, the Regions should refer to the
separate guidance document entitled “Guidance on the Distinctions Among Pleading,
Negotiating and Utigating Civil Penalties for Enforcement Cases Under the Clean
Water Act,” issued January 19, 1989.
Factors similar to those set forth in the statute are embodied in EPA’s
enforcement policies governing settlement. In determining appropriate penalty
settlement amounts, Regional staff should specifically bear in mind these factors as
follows:
Nature. circumstances, extent and gravity of the violation : These factors depend largely
on an assessment of environmental impacts, the significance of the resource(s), general
national environmental goals, and professional experience.
Economic benefit to the violator : The Region will need to make an assessment of the
monetary gain, if any, that the violator has derived from the illegal discharge. Penalties
calculated under this policy should, at a minimum, remove any economic benefit
resulting from failure to comply with the law.
Ability of the violator to pay : If the violator has raised the issue of ability to pay the
proposed penalty, the Region should request whatever documentation is needed to
ascertain the violator’s financial condition where this factor is an issue. Any statements
of financial condition should be appropriately certified. Be aware that the burden is
upon the violator to show an inability to pay.
2
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Prior histor This factor addresses whether the violator previously has ‘violated the
Section 404 permitting requirements. Prior history information should be obtained not
only from EPA experience with the violator, but also from appropriate Corps Districts
and other federal agencies’ knov.’ledge and records. (If the violator has a history of
CWA violations, the Region should consider federal contractor listing procedures as
well. See 40 CFR Part 15.)
Degree of culpabifflx The two principal criteria for assessing culpability are the
violator’s previous experience with the Section 404 permitting requirements and the
degree of the violator’s control over the illegal conduct.
Other factors : Other factors as justice may require encompass both factors that
operate to reduce a penalty settlement amount, as well as factors that operate to
increase a penalty settlement amount. An example of a mitigating factor is where the
State has imposed a penalty and/or a removal and restoration order on the violator.
These costs may be considered when determining the appropriate penalty settlement.
Of course, the penalty should be of a sufficient level to promote deterrence. An
example of an aggravating factor is lack of cooperation upon th part of the violator.
PENALTY Si .T1LEMENT CALCULATION
To calculate the minimum penalty that EPA may accept in settlement of a Class
I or Qass II administrative penalty proceeding for a Section 404 violation, the case
development team 3 should undertake the following steps:
• Calculate the economic benefit of noncompliance;
• Calculate the environmental significance of the violation and the
compliance significance of the violator using the Section 404 penalty
matrix at page 5;
• Calculate any relevant adjustment factors such as recalcitrance, ability to
pay, and litigation considerations;
• To determine the appropriate administrative penalty settlement amount,
add the economic benefit component to the environmental and
compliance significance component and modify this total based on any
relevant adjustment factors.
3 For purposes of this guidance, the case development team refers to the
Regional wetlands program and ORC staff responsible for developing and pursuing a
particular administrative penalty action.
3
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The results of these calculations should be documented as dollar amounts on the
‘Worksheet for Calculating Section 404 Settlement Penalty,” found at the attached
Appendix A. An explanation of economic benefit, environmental significance and
compliance sigrufcance, and the adjustment factors follows.
Economic Benefit
The case development team will need to calculate the full economic benefit, if
any, obtained by the violator from the violation that is the subject of the administrative
penalty proceeding. The economic benefit that a violator obtains from a violation
involving Section 404 may include, for example:
• The increased property value directly resulting from an unlawful discharge
of dredged or fill material;
• Delayed costs, as described below, concerning after-the-fact (ATF) permits
(see also discussion of delayed compliance under Recalcitrance on page
8);
• Avoided costs by, for example, avoiding the expense of hauling dredged
spoil to an upland disposal site by disposing of it in wetlands or other
waters of the United States;
• Profit from the temporary use of the property to the extent that the profit
would not have accrued but for the illegal discharge. Such profit would
include, for example, that generated from such uses as agriculture, logging,
commercial hunting, or aquaculture and which the violator made prior to
ceasing operation or removing the unlawful discharge or otherwise
restoring the property, or before issuance of an ATF permit from the
Corps;
• Profit obtained by a violator (for example, a contractor who unlawfully
discharged fill material) who is not the owner of the subject property, but
who nevertheless benefitted from the violation.
The case development team should use its best professional judgment to:
identify the types of economic benefit, if any, obtained by the violator; identify the
information needed to calculate the value of the various types of economic benefit
relevant in the subject case; and determine the most appropriate method for obtaining
the information needed.
In exercising its professional judgment, the case development team should
consider the following general pnnciples.
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First, a violator of Section 404 may have obtained several types of economic
benefit from its violation, and the case development team should calculate art amount
that represents the total economic benefit wrongfully obtained.
Second. although a iolator may restore the wetland or take other action which
reduces the settlement penalty, the Region should not reduce the settl ment penalty
calculated until the restoration or mitigation has been completed by the violator or has
become embodied in a Section 309(a) administrative compliance order (AO) or similar
Corps order, or unless the Region determines that the violator has satisfied the
requirements for issuance of an ATF permit.
Third, an ATF permit issued by the Corps legitimizes a discharge from the date
of issuance forward, but does not excuse the violation which occurred before the permit
was issued. In cases in which the violator obtains an ATF permit, the Region should
quantify any economic benefit obtained from the violator’s failure to obtain the permit
before discharging. Such benefit would not include permanent increased property
values, but may include, for example, temporary profits realized before the ATF permit
was issued, or delayed or avoided costs of complying with ATF permit conditions.
Where applicable, the Region may wish to use a computer model such as BEN
to calculate the economic benefit obtained by the violator from delaying or avoiding
compliance costs.
Section 404 Penalty Matrix
The Region should use the following Section 404 Penalty Matrix to assign the
appropriate level of settlement penalty based upon the determined level of
“Environmental Significance” and “Compliance Significance.”
SEC11ON 404 PENALlY MATRIX
Environmental Significance
Complianc
Sign cance
MINOR
MODERATE
MAJOR
MINOR
$500 -
5,000
$5,001 -
15,000
$15,001 - 40,000
MODERATE
$5,001
- 15,000
$15,001
- 40,000
$40,001 - 75,000
MAJOR $15,001 - 40,000 $40,001 - 75,000 $75,001 - 125,000
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The criteria upon which the penalty ranges in the matrix are based are described
below. The “Environmental Significance” criteria relate to the violat:on factors under
the Act (e.g., “nature, circumstances, extent and gravity of the violation’) and the
“Compliance Significance” criteria relate to the violator factors under the Act (e g..
“prior lustory” and “degree of culpability”).
“ Environmental Significance” Criteria
• Significance of impact under the Section 404(b)(1) Guidelines
• Acreage of the aquatic area affected
• Duration of the illegal discharge
• Chemical nature of the discharge material
• Pre-existing quality of the aquatic site
The above factors are relevant to characterizing the environmental significance of
an illegal, discharge in terms of whether and how the discharge affects important aquatic
functions. Overall effects of an illegal discharge will depend on a variety of factors
unique to the circumstances of each ase. For example, the size of the affected
ecosystem, although a relevant factor, may not always be determinative of
environmental significance. The loss of a specific wetland of an acre or less may be of
higher environmental concern than the loss of a much larger wetland area, after
consideration of such factors as functions and values performed, location, and
cumulative losses within the system.
The above factors demonstrate that the environmental significance of an
individual illegal discharge is appropriately evaluated over a range of impacts. The
guidance provided here regarding the determination of “major,” “moderate,” and “minor”
environmental significance reflects generalizations intended to contribute to consistency
in application of the penalty matrix, rather than to establish hard and fast rules. The
explanation for what constitutes “major” environmental significance is the most thorough
due to the broad existing discussion of significance in the Section 404(b)(1) Guidelines.
Generally, if a high quality aquatic area is significantly impaired in performing its
functions by an illegal discharge, the impairment should be characterized as having
“major” environmental significance. “Minor” environmental significance includes an
illegal discharge with impacts to low-quality aquatic areas or an illegal discharge with
iegligible iitacts to moderate- or high-quality aquatic areas. An illegal discharge
which jeopardizes .. functions and values of an aquatic area not recognized as being
either of particularly low or high quality, which performs relatively few ecological
functions, or where cumulative losses have been few, may be considered to have
“moderate” environmental significance.
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An illegal discharge should be characterized as having “major’ environmental
signi flcaflce if it: causes significant environmental effects to high-quality aquatic areas:
causes or contributes to violations of state water quality standards; violates any
applicable toxic effluent standard or prohibition under Section 307 of the CWA, or
jeopardizes the continued existence of an endangered or threatened species or will
result in the likely destruction or adverse modification of habitat designated as critical
habitat under a state or federal endangered species law.
Furthermore, an illegal discharge that causes or contributes to significant
degradation to wetlands or other waters of the United States generally should be
considered “major.” Effects that may contribute, either individually or collectively, to a
finding of significant degradation include: effects on municipal water supplies; effects
on life stages of aquatic life and other wildlife dependent on aquatic ecosystems:
effects on ecosystem diversity, productivity, and stability (including loss of habitat); and
effects on recreational and aesthetic values. See 40 CFR Section 230.10(c). In addition
to considering the direct effects of the discharge, consideration also should be given to
the cumulative and indirect effects of the discharge. See 40 CFR Section 230.11(g) and
(h).
An additional relevant consideration is whether the aquatic area is rare or
unique, which can be determined, at least in part, in terms of whether or not the
technical capacity is available to restore the area to its pre-discharge character.
Moreover, an illegal discharge in a site delineated as unsuitable under 40 CFR 230.80,
identified as having a Section 404(c) prohibition or restriction, or established as a
restored or enhanced wetland under an approved mitigation plan generally should be
considered as having “major” environmental significance as well.
“ Compliance Significance” Criteria
• Degree of culpability
• Compliance history of violator
• Deterrence value
The penalty matrix exhibits a range of compliance significance of “minor,
moderate, and major.” When determining whether to characterize a particular violation
as being of minor,” “moderate,” or “major” compliance significance, respectively, the
case development team should use the above criteria.
In assessing the violator’s degree of culpability for the violation, the case
development team generally should consider the violator’s experience with the Section
404 permitting requirements and the violator’s degree of control over the violative
conduct. The criteria for assessing the violator’s experience is whether the violator
knew or should have known of the need to obtain a Section 404 permit or of the
7
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1/
adverse environmental consequences pnor to proceeding with the discharge activity.
For example, someone who has had previous experience with the Section 404
permitting requirements generally should be characterized as having ‘major” compliance
significance. With regard to the violator’s control over the violative conduct, there may
be situations where the violator may bear less than full responsibility or may share
liability for the occurrence of a violation. In such situations, the violation generally
should be characterized as having “moderate” compliance significance for that particular
violator.
Also relevant when determining compliance significance is the violator’s past
compliance history. Generally, a violator with one or more prior Section 404 violations
that were the subject of a formal enforcement response by either EPA or the Corps
should be characterized as having “major” compliance significance. (Note that, in the
case of a repeat violator, the Region may decide that a civil or criminal judicial referral
is the more appropriate enforcement response, depending upon the particular facts of
the case.) Another relevant factor may be the need to deter future Section 404
violations by this particular violator and/or others in the regulated community.
The above criteria are not in any order of priority and the examples regarding
the range of penalty to be pursued are not intended to be all inclusive or mutually
exclusive. The Regions should use best professional judgment to characterize
environmental significance and compliance significance.
Adjustment Factors
After calculating economic benefit, as well as environmental and compliance
significance based upon the Section 404 penalty matrix, the Region may need to modify
the penalty settlement amount based upon recalcitrance, ability to pay, and litigation
considerations.
The penalty settlement amount may be adjusted upward to reflect any
recalcitrance by the violator as demonstrated, for example, by the violator’s failure to
cooperate by providing information, ceasing activities, or allowing access to property. If
a violator is uncooperative with regard to complying with the requirements of a Section
309(a) administrative compliance order to remove fill and/or restore the site, the
settlement penalty should be increased by at least the amount of economic benefit to
the violator from the delay in making removal and/or restoration expenditures.
With regard to ability to pay, EPA will generally not request penalties that are
clearly beyond the means of the violator. If the violator raises the issue of inability to
pay, the Region should evaluate the ability of the violator to pay the proposed
administrative penalty. As stated above at page 2, the violator has the burden of
establishing inability to pay a penalty. Evaluation by an outside financial consultant
8
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may be neceSSalY to evaluate the violator’s assertion of inability to pay an
administrative penalty.
Litigation considerations justifying a reduction in the penalty amount that the
Region may accept in settlement of an administrative penalty proceeding may be due to
applicable precedent. competing public interest considerations. or the specific facts or
evidentiary issues pertaining to a particular action. Any reductions based on litigation
considerations must be clearly documented in the case file.
PRIVATE RIGHTS
The procedures set forth in this document and the accompanying appendices are
intended for the guidance of government personnel. They are not intended, and cannot
be relied on, to create any rights, substantive or procedural, enforceable by any party in
litigation with the United States. The Agency reserves the right to act at vanance with
these procedures and to change them at any time without public notice.
SECTION 404 ENFORCEMENT CONTACTS
Office of Wetlands Protection
Greg Peck FTS 475-7799
Hazel Groman FTS 475-8798
John Goodin FTS 245-3910
Office of Enforcement - Water
John W. Lyon FTS 475-8187
Elyse DiBiagio-Wood FTS 475-8177
Susan Cary Watkins FTS 475-8320
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Enforcement Sensitive
APPENDIX A - Worksheet For Calculating Section 404
Settlement Penalty
Case Name:
Respondent’s Name:____________________________________
i. Economic Benefit , considering such factors as:
• increased property value?
• delayed costs concerning ATF permit?
• avoided costs?
• profit from temporary use?
• economic benefit for violator who is not the
property owner?*
• other?
Subtotal A
2. Environmental and Compliance Significance Subtotal B
(from matrix)
3. Adjustment Factors :
• Recalcitrance (+)
• Ability to Pay (..)
• Litigation Considerations (+ or -)
Subtotal C
4. Total Settlement Penalty (A + B + C) TOTAL _______
* This component should be completed only for non-property owners.
Date Name of Preparer
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1?4
APPENDIX B - COMPLEMENTARY GUTDANCE ON CLEAN
WATER ACT SECTION 404 CIVIL ADMINISTRATIVE
PENALTY ACTIONS
The matenal in this appendix is intended to complement the document entitled,
‘Clean Water Act Section 404 Civil Administrative Penalty Actions: Guidance on
Calculating Settlement Amounts” (Section 404 Administrative Penalty Settlement
Guidance). The Section 404 Administrative Penalty Settlement Guidance provides a
methodology for calculating the penalty amount that a Region may accept when settling
an administrative penalty action for Section 404 violations. This guidance complements
the penalty calculation methodology with respect to: (1) explaining the relationship
between administrative penalty actions and other Section 404 actions; (2) providing
factors to consider when deciding whether to initiate an administrative penalty action in
response to a Section 404 violation; (3) providing an approach for incorporating
alternate penalty payments into administrative penalty consent agreements, where
appropriate; and (4) explaining the statutory requirement for state consultation.
REIA11ONSHIP OF ADMINiSTRATiVE PENALTIES TO OTHER
SECflON 404 ACflONS
The Clean Water Act (CWA) provides EPA with various enforcement
mechanisms for responding to violations of Section 301(a) for discharging without or in
violation of a Section 404 permIt. Section 309(g) gives EPA the authority to assess civil
administrative penalties for, among other things, violations of Section 404. Under
Section 309(a), the Agency is authorized to issue an administrative compliance order
(AO) requiring a violator to cease an ongoing unauthorized discharge and refrain from
future illegal discharge activity, and where appropriate to remove unauthorized fill
and/or otherwise restore the site. A third enforcement mechanism allows EPA to seek
monetary penalties, injunctive relief, and prison sentences through judicial action under
Sections 309(b) and (c) of the CWA. Under these provisions, the Agency may refer
cases to the Department of Justice (DOJ) for civil and/or criminal litigation.
Before a Region can initiate any enforcement action, it must first establish a
violation of Section 301(a) of the CWA by determining that there has been a discharge
of dredged or fill material from a point source to a water of the United States by a
person in the absence or in violation of a required Section 404 permit. The Region
must then determine what action(s) to pursue against the violator, based upon the
circumstances of the particular violation.
A description of the relationship between Section 309 administrative penalty
actions and other Section 404 actions follows.
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Section 308 Letters
A Section 308 letter is a tool whereby the Region can obtain/demand
information from an alleged violator to determine the existence and/or extent of a
violation. Section 309(g) specifically allows for assessment of an administrative penalty
for violations of Section 308 (for example, failure to respond to a Section 308 request
for information regarding an alleged unauthorized Section 404 discharge). The Section
308 letter should notify the recipient that failure to respond can result in the assessment
of an administrative penalty.
AdminLstrahVe Orders
A principal goal of EPA’s Section 404 enforcement program is to correct any
environmental harm resulting from an unauthorized discharge. Normally, this goal can
be achieved through issuance of an AO under Section 309(a) ordering the violator to
cease any ongoing violation and, where appropnate, to remove unauthorized discharge
material and/or otherwise restore the site. A Region cannot seek administrative
penalties for non-compliance with an AO per Se; however, administrative penalties can
be sought for the underlying violation of the CWA that gave rise to the issuance of the
AO, i.e., the unauthorized discharge activity.
A Section 309(a) AO seeking removal and/or restoration has been a common
enforcement tool for responding to Section 404 violations and should continue to be
viewed as such since it affords immediate environmental protection to a resource
impacted by an illegal discharge. Where appropriate, a Region may respond to a
Section 404 violation by both issuing an AO seeking injunctive-type relief initiating
an administrative penalty action. However, as explained in the EPA guidance entitled,
‘Relationship of Section 309(a) Compliance Orders to Section 309(g) Administrative
Penalty Proceedings,” issued August 28, 1987, AOs and administrative penalty
complaints should be kept procedurally separate: they should be issued and docketed
as separate documents. Moreover, it is generally advisable (although not required) for
a Region to issue an AO seeking removal and/or restoration well in advance of an
administrative penalty complaint. In those cases where the violator does not comply
with the terms of the AO and the Region determines that there is an immediate need
for injunctive relief , the Region should seek judicial enforcement of the AO through a
referral to DOJ as soon as possible. Also, a civil judicial referral is the appropriate
enforcement mechanism where there is noncompliance with the terms of an AO and
the Region determines that it is not likely to obtain the needed injunctive-type relief
within the administrative arena.
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Judicial Actions
Under Section 309(g)(6), payment of an administrative penalty to EPA forecloses
any possibility of future judicial action for civil penalties for that speczfic violation. This
fact is of particular importance if the Region is attempting to build a case for e ’ entual
referral to DOJ by documenting a history of violations. Therefore, a Region should not
initiate an administrative penalty action against a violator for a particular Section 404
violation if a subsequent judicial action seeking civil penalties for that specific violation
is desired. Note also that, as stated above, the Agency can seek both injunctive relief
and monetary penalties in a civil judicial referral, whereas the Agency can seek only
administrative civil penalties in a Section 309(g) complaint. Generally, therefore, a civil
judicial referral is the appropriate enforcement mechanism in those 404 cases where the
Region initially determines that it cannot obtain needed injunctive-type relief within the
administrative arena.
After-the-Fact Pernzits
Issuance of an after-the-fact (ATF) permit by the Corps of Engineers authorizes
a discharge from the date of issuance onward. It does not cure the period of violation
prior to issuance of the permit. Consequently, an administrative penalty may be
assessed for each day that the illegally discharged material remained in place prior to
issuance of an ATF permit.
The 1989 EPA/Army Enforcement Memorandum of Agreement (MOA) directs
the Corps not to accept applications for ATF permits until resolution of the violation
has been reached through an appropriate enforcement response as determined by the
lead enforcement agency. This language is intended to ensure that ongoing EPA
enforcement actions are not compromised by Corps issuance of an ATF permit.
However, there will be situations where EPA determines that issuance of an ATF
permit is consistent with, and should precede completion of, an EPA enforcment action.
The Regions are encouraged to coordinate with their respective Corps Districts
accordingly.
Despite the MOA provision, the ATF process is likely to raise difficult questions
in some administrative penalty actions that the Region will need to resolve when
determining an appropriate penalty amount. As indicated above, in those cases where
the Region determines that the violator would have received a permit before the fact or
should receive one if an ATF permit application is processed, it may be appropriate to
allow the ATF process to go forward and, where appropriate, to direct the violator to
implement interim control measures. However, in those cases where the Region has
sufficient information as a result of its enforcement investigation to conclude that the
illegal discharge does not comply with the Section 404(b)(1) Guidelines, it is reasonable
to require the violator to undertake remova]/restoration before any permit is sought. In
3
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such cases, the Region should inform the Corps that the ATF process should not
proceed pending EPA resolution of the administrative penalty action and should
subsequently notify the Corps of the completed enforcement action
WifEN ARE ADMIMSTRATIVE PENALTIES BY EPA APPROPRIATE
A basic discussion on when to use administrative penalties in CWA enforcement
is provided in the EPA document entitled, “Guidance on Choosing Among Clean Water
Act Administrative, Civil and Criminal Enforcement Remedies,” issued August 28, 1987
For violations which occurred prior to February 4, 1987 (the enactment date of the
1987 Amendments to the CWA), the Regions should refer to the EPA document
entitled, “Guidance on Retroactive Application of New Penalty Authorities Under the
Clean Water Act,” issued August 28, 1987. Also, the Regions should refer to the
“Guidance on ‘Oaim-Splitting’ in Enforcement Actions Under the Clean Water Act,”
issued August 28, 1987, with regard to questions on parallel proceedings or
simultaneous administrative penalty proceedings. The following discussion focuses on
the appropriateness of an administrative penalty proceeding in response to an
unauthorized discharge of dredged or fill material. 1
When deciding whether to initiate an administrative penalty action, the Region
should consider whether assessment of such a penalty will serve any or all of the
general enforcement goals of deterrence, swift resolution of environmental problems,
and fair and equitable treatment of the regulated community. If the answer to these
questions is yes, it is likely that assessment of an administrative penalty is an
appropriate enforcement response to the violation. To ascertain whether a Region’s
limited enforcement resources should be utilized for a particular case, issues such as the
history of the violator, the significance of the affected resource, and the significance of
the discharge should be considered.
The threshold for deciding whether to initiate an administrative penalty action in
response to a particular Section 404 violation is relatively low. Examples where an
administrative penalty action is an appropriate enforcement response include the
following:
Failure to respond to a Section 308 letter;
The need for or appropriateness of initiating an EPA administrative penalty action
against violations in States which have assumed the Section 404 program (i.e., Michigan)
may be dependent upon the approved State program. These situations will therefore be
handled on a case-by-case basis.
4
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• Illegal discharges that have received or are likely to receive an ATF
permit;
• illegal discharges ‘ here an AO for removal/restoration is riot feasiole,
• Illegal discharges where an AO has been issued and the Region
determines that an administrative penalty action also is appropriate.
ALTERNATE PENALTY PAYMENTS
One final point relates to the opportunity for obtaining removal/restoration in
the context of administrative penalty settlement negotiations. In appropriate Section
404 cases, a Region may want to initiate an administrative penalty action against a
violator for an illegal discharge that the Region would like removed, believing that in
the context of settlement negotiations it will be able to use successfully the Section
309(g) action as leverage to get the discharge matenal removed more expeditiously.
Generally, the Region will have previously issued an AO requiring such
removallrestoratiOfl. In the course of negotiations aimed at settling the administrative
penalty action, the violator may in fact demonstrate a willingness to correct the
environmental harm resulting from the illegal activity, i.e., to remove the illegal
discharge material and/or restore the site.
Where appropriate, the Regions do have discretion to enter into administrative
penalty consent orders that incorporate the violator’s willingness to remove illegal
discharge material. The key benefit to this approach is that it provides the Region with
the opportunity to achieve removal and restoration quickly. In addition to the standard
administrative penalty consent order language, an order providing for alternate penalties
based upon expeditious completion of removal/restoration requirements should also
include language that is consistent with the Anti-Deficiency Act and the Miscellaneous
Receipts Act, and that preserves the Agency’s remedies in the event of noncompliance
with the terms of the consent order. Such language should provide that:
• The violator is agreeing to undertake or has undertaken the
removallrestoratiOfl to mitigate the environmental harm from the illegal
discharge;
• The violator will pay a penalty of a specified amount and that EPA, in
determining the amount of the penalty, has taken into account the
violator’s agreement to undertake the removal/restoration as part of the
statutory factors; and
5
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1
The violator agrees that. if it does not complete the project to the
satisfaction of EPA, the Agency retains the authority to assess an
additional penalty of a specified amount for the continuing violations and
to take additional enforcement action.
Ordinarily, there will be a cash component of the penalty consent order that recovers at
least economiC benefit. Also, the consent agreement should clearly state that the
Agency retains the authority to take additional enforcement action in the event of
noncompliance with the CWA or nonpayment of the assessed penalty. Moreover, care
should be taken to make the agreement as specific as possible with regard to the details
of the removal/restoration project and the dates for its completion. It is strongly
recommended that, simultaneous with or in advance of the penalty consent order, the
Region issue an AO incorporating the removal/restoration upon which a settlement
depends. The penalty consent order should reference the AO to clarify the
requirements that must be satisfied to avoid further assessments for continued
noncompliance with the CWA. Alternate penalty payments should not be used in
situations where the violator appears to be recalcitrant.
STATE CONSULTATION
Prior to issuance of a final order assessing an adm.inistrative penalty, Section
309(g) requires that the Region consult with an appropriate State agency regarding such
assessment. For the Section 404 program, the appropriate State contact will be the
agency administering the State 404 program. However, where the State has not
assumed the 404 program, the appropriate State contact is the State agency that
implements the State wetlands regulatory program, provided that such program has
jurisdiction over the illegal activity in question, or in the absence of such a State
wetlands regulatory program, the State Section 401 certification agency, unless another
State agency is agreed to by the Region and the respective State through an e sting
State/EPA Enforcement Agreement (which addresses Section 404) or some other formal
agreement with the State. The procedure for such consultation should be discussed and
decided upon by the Region with their respective State contact, consistent with
“Guidance on Class I Clean Water Act Adnirnistrative Penalty Procedures,” issued July
27, 1987, for Class I penalties and “Rules of Practice Governing the Administrative
Assessment of Class II Civil Penalties Under the Clean Water Act,” 40 CFR Section
22.38, for Class II penalties.
6
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c- o
SECTION 404 ENFORCEMENT CONTACTS
Office of Wetlands Protection
Hazel Groman FTS 475-8798
John Goodin FTS 245-3910
Office of Enforcement - Water
Elyse DiBiagio-WOOd FTS 475-8187
Susan Cary Watkins FTS 475-8320
7
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IV-13
Letter From Major General Arthur E. Williams, Director of Civil Works,
U.S. Army Corps of Engineers, to Hon. John Turner, Director, U.S. FWS
“Guidance on How the Corps Must Consider How Any Listed Species Under ESA
May be Affected by Issuance of a 404 Permit.” 11/27/91
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DEC- E-1 9 4 10 20 FROM DOD-US CE-HO UJPSH DC TO 5640O54 P 02
CE?A TMENT OF T - E ARMY

I •VASHU JC CN C. CCO
T M1 CN F
CZCW-OR
1 ORANDCN OR ALL M 7OR StIBORDflTAT CC ANDS, DISTRICT C ANDS
SZTBJECT: Endangered Species Act Responsi iLLties
1. eferenc s:
a. Letter, D rector of Fish. and. Wildlife Service, L2 June
1991, S 3.
b. Response letter, CZcW-ZA, 27 November 1991, SA.3.
2. Our response explains Corps policy concerning the limits of
the Corps scope of review for the Regulatory Program under the
Endangered Species Act. We intend to include this in future
guidance on this si.thj act.
3. Your attention is directed to the penultimate paragraph. of-.
the HQUSACE response.. Pending further guidance, District
Comm derg should include in both individual permits and in
general permits for linear projects a special condition requiring
applicants to supply the Fish. and Wildlife Service with in.forma—
tion concerning the intended route of the linear project.
4. Any questions may be directed to Sam Collinsan at (202) 272—
1782.
FOR T E D ECTOR OF C.i .vj.j WORXS:
Ends P. ELMOR E
Chie , Operations, Construction and
- Readiness Division
Directorate of Civil Works
DLSTR.IBuT ON:
(SEE PG. 2)
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DEC-8G-1994 18.21 FROM
DOD—USACE-HO LJPSH DC TO
95648854 P 83
T 1ENT C Th , MY
US . wr, C C? I tf
w i iGr :. : : - cC
p _,j —

affica of the C ef C u sa1/P.a 1atory —Z
!cncrable ohn Tur ar
Director
t •-5. n-sn and. Wilcili .f a
De;ar .ant of tze I arior
Washiflgton, DC 20240
Dear Mr. Ti.ir .er:
I an writing this let ar to raspand to R.icnart smith’s
June 12, 1991, letter raaarding the t. S. Arrny Corps of Znçineers
alveston District’s extension of ne .rai. Par it ( ) 14114(02).
To beg i with, I would 1i a to assure you that the Galveston
Di ict’s issuance and use of GP 14114(02) is in no way an
effort to evade it responsibilities under the Zndngered Specie -s
Act (ZSA). The Galveston District, and the Corps as a whole, are
coit ad to acting in full com 1ianc9 with the ZSA, and to
exercising pro er sensitivity regarding the effects that Corps
actions nay have on threatened or endangered. species -
In his letter Mr. Smith stated that in oast application3 of
G? 14114 to linear projects (such as pipelines or electric
tansmission lines), the Galveston District 1i itad its ESA
review to the permit area relevant to Corps regulation under
section 10 of the Rivers and Earbors Act of 1899 (REA.) and/or
section 404 of the Clean Water Act (CWA) - Mr. Smith contends
that this 1ii -i-tad assessnent in oroper1y fails to consider the
indir ct effects of a project, because it does not take into
account the portion of the project outside the per .it area.
Mr. Smith posits that, in the c nte ct of a linear project,
section 7 of the ESA far ids the Corps to issue a perit until
the Corps has assessed the potential effects an endangered or
threatened species of the entire linear project.
The Corps does not fu.Uy agree with Mr. Smith’ S interpreta-
tion of section 7. Section 7 requ.ires Federal agencies to
“insure that any action _ autharized , funded, or ca tied out by
such. agency . . . is not lik.ely to j eGpardize . . . any
endangered or threatened species . . . ,“ or to adversely affect
critical h hitat (16 t7.S. C.A. 5 1536, e2vhasis added). Th s
requires the Corps to consider the ESA effects of “any action
authorized” (that is, any activity pernitt d) by the corps. In
the typical linear project requiring a Corps permit, a power
C3 a Y will apply -for an section 10 river ossinq p it to
facilitate the construction of a transmission line. In hi
context, the action authorized, by the Corps, if the Corps issues
such a permit, is the power line 1 s crossing of the river. Thus,
(1 - II A ,,
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S564 54 P J4
DEC- E—1SS 1 21 FROM DOD-USACE-HO UflSH DC TO
C C... 3 s ai . •
r:ver sr ‘-
of the P auz or: , (i.e., the
or . .na.ry nar. c of the
any U ands a faota by the r v r C sinc t a a
reascnab]. s ance ro the ;ez. W.t ..-i th i.s a a,
aczoranca i eder z.cr V . sz F.2
:59 (5th :976) ( c a ia: ate vo e sZ ’ g
the con let.o of a .7 L1e r ad sact on and introhange
si.dare an rect ecz t. az rnust be csered n ISA
rav u of Fedara . rojecz), the Cor s cortsjdezs the d.rect,
thdi. ct and cuulative ef act .s of the river c ss.ng on
or and azed s ec s. -
In three s.tuazians, ho aver, the C r s ,ill assess ISA
effects beyond the inad.iate par .it area. In the f rzt
Si .uat2.crl, in ac ordanca c .th j’erside itrjct r.
Artdr s , 753 F.2d 503 (10th Cir. 1985), (Corps considered
indirect or secondary vsic . effects of a da on critical
habitat of the hoo thg crane mary niles dcwnstrea fron the
pernit area), the Coros will look outside the parit area for ISA
effects that have a causal pnysical link to the activity author-
ized by the Coros pursuant to the R A and/or the In doing
so the Coros recog!lizes that there is a dif erenca bet ’een: 1)
the Coros legal con ol over a pro ect which cannot be
built “but for” a Corps pe.r it, and 2) the Coros lecal res on—
sibjljty to consider indirect and curnilatjve wsica effects Of
the acti.o s we pez it. That is, when the Coros only has ____
legal or “but for’ control over a linear projact, the Corps
typically iu. ceth its ISA ravi u to the pernit area.
Conversely, when the activity authorized by the Corps has a
ohvsica effect c i i threa ed or end.angerad species outside the
permit area, the Corns will look outside the pez jt area to
evaluate those effects.
This distinction has been recognized in cases such as
inneoaao Trjbe of Jebjre k v. Ray , 621 F.2d 269 (3th Cir.), -
Cert. nied , 449 U.S. 336 (1980), and 5aye the Bav, Inc, v.
United Sta t s Cor s of I cnee , 610 F.2d 322, (5th Cir.), cert.
eni 4 , 449 U.S. 900 (1980). Although .innebaag and Save the av
2.nvolved the ap li.catjon of the National Ezivircnenta l PoLicy
Act, the Corps believes that-thiz analysis has vaLidity in the
COntext of the ISA with regard to linear proj ect .
As Stated above, typically the Corps will not broaden it
review to encoass ISA effects that are the product of the Corps
facto legal con ol over a linear project. The Corps doss not
believe that such ‘ but for” ccn al justifies the Corps
broadening’ its jurisdiction to include indirect n v ical
affects. By l ieinq its ISA review to the activity which the
Corps permits, and to direct, indirect, and c’. ujatjve hvsica1
effects resulting’ fron that authorized act.v .ty, the Corps .n
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Sc64@ 54 P jc
EC gE1S94 1 22 FROM DOD-USPCE-HQ UPSH DC TO
crat ll7 b .lan a Zaderal ii a.ng the
5flV r 5 t t.a C 5 Lzsion c operating a manageable
s 1lato-z prtgran. Although it m ghz seem to be a noble
for • C ts to c and its !SA rc’ to include the
entirs. leng—.h o a linear project, the Corps lacks the curces
prograatically to conduct such ar—reacn.ng exaninations.
Z rncrs, e believe that suc e.ns ve relation would.
eve star t a lin.ius of . Coros c Latory a ner zy.
The second situation in un.ich the Coros w ll e’ oand its E3A
review beyond the pernit area is wnan the TWS or an interested
Party th.fcrms the Coros that a linear roject will affect
crjtical hab .z.at outs de the pe it area, and the Corts, t ough
its control over the olaosme.nt of a rive.r crossinc, can reason—
ably steer the route of the linear project around the critical
habitat. That is, if the Coros can ericou.rag-e or require the
proponent of a linear project to zilize a. practicable
alternative location for the proPosed rlver crossing site, and
thereby lead an a plicant to reroute its linear project to avoid
the adverse effects on the critical habitat, then the Corps will
do so when such a practicable alternative river crossing sits is
reasonably available.
It should be ex’olicitly clear that by dopting this appro .c.b .
the Coros is not ac.’ cwledgi..nq any addit onal legal obligation
unde.r the ESA. The Ccros is voluntarily taking this action
solely in tae interests oi enviroi ental protection. further-
more, the Corps, by ado tthg this approach, is not obligating
itself to identify critical habitat outside a permit area
Consequently, before the Corps will investigate whether this
a roach shou..ld be employed for a specific linear project, the
FWS or an interested party must provide the Corps with credible
zLformatian that an area of critical habitat is sufficiently near
a river crossing site that it cou..ld practicably be protected by
this approach. Moreover, it will be totally at the Corps
discretion whether to pursue this approach based on such credible
in2or atjan.
In the third situation the Coros maY actually enlarge the
scooe of its a, review to include an entire linear project.
This situation arises when, far instance, a linear project
requires the Corps to issue such a significant number of permits,
or permits authorizing such a large portion of the project’s
length, that by granting the permits the Corps essentially would
be authorizing the entire project or segments thereof.
When none of these tbrae situations are present, the Corps
will confine its zzA review to the permit area. ‘ro contend that
the Corps should ex ’ie the entire length of a linear project
for adverse effects to threatened or endangered species, even
the Coros only means of preventing such effects wauld be to
deny the permit, one must rely en the “but for” test. One would
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-o S564 54 P E
DEC- JE-19S4 io 22 RDM DOD-US CE-HQ UPSH DC
to z. at, 3L O3 Z e hear act c:’ .ld not be --
cszr:c-a , ‘ b z f:r” a Cots er _t, then an ind .ract
t. ,a co- s -t...t zze os ie de — ct .cn of
th s tast .av ha- ra vaj z-, in cs tain Conzaxt , ,
1ac. c. va:i iz r cw z 1in ar prect. . Drv .-r to
ax 3te, n ar this aoor ac ,, the C s would be o ’a z
haca.h f r all 1v r.en- j e fac: alon; a : oc
tile ine a Co ts ad act-hal tor-r
stcn injl - only or one rive. cr ssin . it. Not only
iculd sucn a rav.ew cause z -e c r to e raascn ’
au. .crizy, uz t sit ly would not be
prjoa .
Ds ite this, t a Coros c zi helrn ensure that reatan9d. a.n
eançer soecj we betta ’ rozected by assisting the FWS in
its authorit-, under sect on 9 of the ISA. The Coros
Reguiator. ran j c rrar1 ’, c5 nc cuidanca conc ng
ESA rev ew to inszr’.2ct cur field ff ices to include in both
individual pet..jts and in general pa its for linear projects a
soecial condj a 1 cants to su 1y the FWS w ta
infor at on ccr cartinq the L’itanded route of toe linear project.
This will a r .sa toe i S of all linear pro ects that involve
Corts pe j . In those cases in wn2.c.h the Coros r s icts its
review to the per ..it area alone, the FWS would be free to
exroise its authorit-, under section 9 of the ESA t protect -
crithca l habitat and. prevent taJc.nqs of threatened and endangered
s ec es. As I a sure you are fully aware, the FWS, under 24
Hawajj De a- ent of _ t pnd a d Natural Resourc s , 639 F.2d 495
( 9th Cir. 198].) (degradation of critical habitat alone can be
cor1sider d , a taking , potentially could cause a linear pro ect to
be redirected around critical haoitat.
We beLieve that our ap roach to defining the area of
cOflSjd tj 0 for endangered species inpacts is consistent with
the ESA, and with the Corns policy on scope of analysis
incorporated, in the Coros 1983 NationaL Envi.ronne.nzal Polic r Act
(NZ A) coljance reg iiatjcns. If you wish to discuss this
matter further, I wauj4 be pleased to eet with you.
Sincerely,
4’Arthur E - WUJ.j ems
Major Cenezal, u.S. Ary
Director of Civil Works
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DEC- B-1994 102 FROM DOD—USRCE-HQ UPSH DC
TO
9564O 54 P J7
United States Department of the Interior
FE 5 j AND W1DL t S Vr — - a
W gton, D.C. 20240
In Reply Refer To:
F I4S/DHC/BFA
a \
Ila..jor General Arthur E. Williams
Acting Director of Civil Works
U.S. Army Corps of Engineers
Department of the Army
Washington, D.C. 20314-1000
Dear General Williams:
r would like to bring to your attention a matter of U.S. Army Corps of
Engineers (Corps) policy which conflicts with the Endangered Species Act
(ESA). Section 7 of the ESA requires that your agency consider and respond
appropriately to all the effects of actions authorized by the Corps. The
Galveston District proposes to extend the authorization under General
Permit (G?) 141.14(02) for the placement of pipelines by directional drilling
beneath the navigable waters of the United States.
Th proposed extension would apply within the 50,000-square-mile area of
the Galveston District’s jurisdiction along the Texas Gulf Coast. There
are presently 1.8 species of plants ana animals within that area which have
been federally listed in accordance with the ESA as threatened or
endangered. The Fish and Wildlife Service (Service) is concerned that
when the Galveston District has assessed each individual pipeline previously
authorized under OP 14114, its scope of assessment has been limited to the
immediate area of the Corps jurisdiction under section 10 of the Rivers
and Harbors Act of 1899 (RHA), and has not included secondary or indirect
impacts associated with the construction of the rest of the pipeline. The
Service has at times obtained complete project plans from the permit
applicants and, by looking beyond the scope of RHA jurisdiction, found
situations in which the pipelines initially appeared to potentially affect
one or more , f the 13 threatened or endangered species occurring along the
Texas Coast. In two cases, further investigation revealed impacts were
likely. In June 1990, the Service had to ask an applicant to altar plans
for pipelines authorized under GP ....14114 to avoid the taking of the
endangered Attwater’s prairie chicken; In August 1990, the Service had to
take similar action with another authorized project to prevent the taking
of the endangered ocelot and jaguarunidi.
If 0? 14114(02) is issued, future permittees may be in the position of
taking a listed species and thus violating section 9 of the ESA. This
situation arises because the Galveston District has not complied with the
regulations promulgated at 50 CFR 402.02 to consider the indirect as well
as the direct impacts of the actions it authorizes. The Service has brought
this matter to the attention of the Galveston District Engineer and the
Southwest Division Engineer and has been told that they are powerless to
AC T E r Ec—o
i MlO WL tAP S vI
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; D—_&CE-- . j r C
comply with these regulations implwenting section 7 of the ESA. Unless
the Corps does comply, its failure to consider and take substantive action
to prevent ai adverse indirect impact to a listed species or its critical
habitat in accordance with section 7 may make the Corps vulnerable to claims
by the applicants and others that its inaction contributed to future
viol ati otis of section 9.
The District and Division Engineers cite the Corps regulations applying
the National Environmental Policy Act to its permit activities at 33 CF
Part 325, Appendix B (Appendix B), in defense of their position. However,
section 7.b.(2)( iv)3. of Appendix B lists the ESA, the Fish and Wildlife
Coordination Act, the National Historic Preservation Act of 1966, Executive
Order 11990, and other unspecified environmental review laws and executive
orders as among those which can cumulatively expand the scope of Federal
control and responsibility “for portions of the project beyond the limits
of Carps juri diction tA endix , section 7.b. (z) . If, as the Division
Engineer has led the Service to believe, the Carps (s not applying the
above cited portions of its own regulations on a national basis, then the
impacts of all projects similar to that authorized by G? 14114 have national
implications as well.
Since the District Engineer proposes to issue the General Permit on June
17, 1991, unless instructed otherwise, I would appreciate your review of
this matter at your earliest convenience. I would be happy to discuss this
with you further if you have any questions.
Sincerely,
DIRECTOR
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IV-14
U.S. Fish and Wildlife Service
Mitigation Policy - 46 f. 7644 (1/23/81)
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7644
Federal Register I Vol. 46.No. 15 / Friday, January 23, 1981 / Notices
DEPARTMENT OF ThE INTERIOR
sh and Wildlife Service
S. Fish and Wildlife Service
Mitigation Policy; Notice of Final Policy
AGENCY: U.S. Fish and Wildlife Service.
Department of the Interior.
AC ’TlON Notice of Final Policy .
SUMMARY: This Notice establishes final
policy guidance for U S. Fish and
Wildlife Service personnel involved In
making recommendations to protect or
conserve fish and wildlife resources.
The policy is needed to: (1) ensure
consistent and effective Service
recommendations; (2) allow Federal and
private developers to anticipate Service
recommendations and plan for
mitigation needs early; and (3) reduce
Service and developer conflicts as well
as project delays. The intended effect of
the policy is to protect and conserve the
most important and valuable fish and
wildlife resources while facilitating
balanced development of the Nation’s
natural resources.
EFFECTiVE DATE January 23. 1981.
ADDRESS: Comments submitted on the
proposed policy may be inspected En
Room 738, 1375 K Street. N W.,
Washington. D C. 20005. between 9 a m.
and 3 p.m. on business days.
‘iR FURThER INFORMATiON CONTACT:
in Christian, Policy Group Leader—
ivironment. U.S. Fish and Wildlife
Service. Department of the Interior.
Washington. D.C. 20240. (202) 343—7151.
SUPPLEMENTARY INFORMAT1OPC
BACKGROUND
The development and use of the
Nation’s natural resources continues in
an effort to provide people with their
basic needs end to improve their lives.
Fish and wildlife and the intricate fabric
of natural resources upon which they
depend provide benefits to people in
many ways Fishing. hunting. and bird
watching are basic benefits that come to
mind immediately These activities
involve the direct use of these
renewable “natural resources Perhaps
a greater benefit, although more difficult
for some to understand, is the
maintenance of the structure and
function of the ecosystem that comprises
all living species, including people The
presence of diverse, healthy fish and
wildlife populations generally signals a
healthy ecosystem which contains those
elements ne essary for human survival.
including unpolluted air an productive
land
That fabric of natural resources called
‘ abitat is the supply for fish and wildlife
newal The life requirements for plant
and animal species are varied and
complex. Each species requires a
different set of environmental conditions
for survival and vigorous growth. These
conditions form the habitat of the
various species. The development and
use of natural resources leads to
changes in environmental conditions
that can redefine habitat and thus
change the mix and a’bundance of plant
and animal species.
A given change in habitat might
increase or decrease overall habitat
productivity or result in gains or losses
of species that are valuable to people or
ecosystems hi some cases, habitat
modifications can also increase the
numbers of species considered
undesirable, and create a nuisance to
people or crowd out more valuable
species. Therefore, development actions
can cause habitat changes that are
considered either beneficial or adverse
depending on the intended wildlife
management objectives.
When professional biologists
determine that a given development
action will cause a change that Is
considered adverse, it is appropriate to
consider ways to avoid or minimize and
compensate for such adverse change or
loss of public resources. This is
commonly referred to as mitigation.
Fish and wildlife resources are public
in nature. The Service has provided
Federal leadership for over 40 years to
protect and conserve fish and. wildlife
and their habitat for the benefit of the
people of the United States Under its
legal authorities, the Service conducts
fish and wildlife impact investigations
and provides mitigation
recommendations on development
projects of all kinds. These efforts have
been conducted through a full
partnership with State agencies
responsible for fish and wildlife
resources, and since 1970, with the
National Marine Fisheries Service of the
U.S Department of Commerce. The
recommendations of the Service are
considered by the Federal development
and regulatory agencies for their
adoption as permitted by law
Over the years, the Service has
reviewed innumerable project and
program plans with the potential to
adversely affect fish and wildlife
resources The mitigation recommended
in recent years by Service personnel to
prevent or arr eliorate adverse impacts
has been governed primarily by a broad
policy statement on mitigation
promulgated in 1974 and by specific
guidelines issued as needed Recent
events have prompted the Service to
make known its mitigation objectives
and policies Specific management
needs include’
(1) Recent legialative. executive and
regulatory developments concerning the
environment which had led to a need to
update and expand the advice within
the 1974 Service policy statement;
(2) Increasing Service review
responsibilities which require issuance of
comprehensive guidance on mitigation
to maintain the quality and consistency
of Service mitigation recommendations;
(3) An explicit summary of Service
mitigation planning goals and policies to
be disolosed to developers and action
agencies to4ld their earliest planning
efforts; and
(4) Finally, the current national need
to accelerate development of energy
resources which requires that early
planning decisions be made that can
minimize conflict between important
environmental values and energy
development.
For these reasons, it was determined
to be necessary to fully outline the
overall mitigation policy of the U S Fish
and Wildlife Service The final Service
policy statement integrates and outlines
the major aspects of current Service
mitigation efforts Intended as an
overview document, its guidance is
based on an analysis of current Service
field recommendations and on the
guidance contained in recent Service
management documents.
This policy conditions only the
actions of Service employees involved
in providing mitigation
recommendationr It does not dictate
actions or positions that Federal action
agencies or individuals must accept.
However, it is hoped that the policy will
provide a common basis for mitigation
decisionmaking and facilitate earlier
consideration of fish and wildlife values
in project planning activities
Finally, it should be stressed that this
Service policy outlines mitigation needs
for fish and wildlife, their habitat and
uses thereof Others interested in
mitigation of project impacts on other
aspects of the environment such as
human health or heritage conservation
may find the Service policy does not
fully cover their needs There was no
intent to develop a mitigation policy that
covers all possible public impacts
except those stated However, the
Service strongly believes thaL
preservation and conservation of
natural resources is a necessary
prerequisite to human existence
DISCUSSION
The following items are included to
provide a better understanding of the
policy’s relationship to other guidance
and to improve the understanding of its
technical basis
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Federal Register I Vol 46, No. 15 I Friday. January 23. 1531 / Notices
7645
, geIatio1i hiP of Service Mitigation
policy to Other Service Planning
ActiVtOS.
The final policy is designed to stand
n its own. However, for a clearer
perSPect1 ’e of the relationship of the
poliCY to the goals and objectives of the
u.s. Fish and Wildlife Service, it can be
read with the Service Man gement Plan
and the Habitat Preservation Program
fanagement Document.
The Service Management Plan
describes the overall direction of the
Service and the interrelationships of the
four major categories, including Habitat
preservation, Wildlife Resources,
Fishery Resources, and Federal Aid-
Endangered Species.
The Habitat Preservation Program
Management Document outlines what
the Service will do over a one- to five.
year period to ensure the conservation
and proper management of fish and
wildlife habitat. It provides guidance to
Service personnel and other interested
parties on the goals, objectives, policies,
and strategies of the Habitat
Preservatid’n Category of the U.S. Fish
and Wildlife Service. It includes a
discussion of important resource
problems that the Service believes
require priority attention.
2. Relationship of the Mitigation Policy
to any future Fish and Wildlife
Coordination Act (FWCA) Regulations
and the National Environmental Policy
Act (42 US.C. 4321-4347) (NEPA).
The Service migitation policy outhnes
internal guidance for Service personnel
for all investigations and
recommendations for mitigation under
relevant Service authorities, including
the FWCA and NEPA, However, the
coverage of the policy is basically
different from that of any future FWCA
regulations as was explained in the
preamble to the proposed policy
(September 9, 1980) (45 FR 59488—59494).
Any future FWCA regulations will
principally recommend procedures for
all affected agencies to ensure
compliance with that Act before and
after they receive fish and wildlife
agency recommendations. In contrast,
the Service mitigation policy only
applies to Service personnel and
outlines mitigation planning goals and
policies for impact analyseiand
recommendations,
The relationship of the migitatlon
policy to NEPA requirements Is also a
complementary one. The regulations
implementing NEPA (43 FR 55978—56007)
recognize “appropriate” mitigation
recommendations as an important
element of the rigorous analysis and
display of alternatives including the
proposed action (40 CFR Part 1502 14)
The NEPA regulations later specify that
Service impact analyses and mitigation
recommendation shall be used as input
to preparation of draft environmental
impact statements (DEIS) as follows.
“To th.e fullest extent possible,
agencies shall prepare draft
environmental impact statements
concurrently with and integrated with
environmental impact analyses and
related surveys and studies required by
the Fish and Wildlife Coordination Act
(16 U S C 661 et seq), the National
Historic Preservation Act of 1986 (16
U S.C. 470 et seq ), the Endangered
Species Act of 1973 (18 U S C. 1531 et
seq.), and other environmental review
laws and executive orders.” (40 CFR
1502 25(a)).
These provisions provide clear
direction that NEPA requirements are
not duplicative of or substitute for
mitigation recommendations developed
under the Fish and Wildlife
Coordination Act and other Service
authorities. In fact, the NEPA
regulations require that Service
recommendations be fully integrated
into the NEPA process as vital
Information necessary to comply with
NEPA.
3. Focus of the Policy on Habitat Value.
The policy covers Impacts to fish and
wildlife populations, their habitat and
the human uses thereof. However, the
primary focus in terms of specific
gwdance Is on the mitigation of losses of
habitat value. Population estimates are
considered by many to be unreliable
indicators for evaluating fish and
wildlife impacts. Sampling errors, cyclic
fluctuations of populations and the lack
of time series data all contribute to the
problem. Therefore, the Service feels
that habitat value, by measuring
carrying capacity, Is a much better basis
for determining mitigation requirements.
However, the use of population
information Is not foreclosed by the
policy. In fact, concern for population
losses led to formulation of the “General
Policy” section to “. . . seek to
mitigation all losses of fish, wildlife,
their habitat and uses thereof. . .“ The
Service agrees that migitation of
population losses is a necessary aspect
of this policy, for example, when habitat
value Is not affected but migration
routes are blocked off as In the case of
dam construction on a salmon river.
Mitigation of human use losses of fish
and wildlife resources Is also a
necessary aspect of the policy.
However, if mitigation of habitat value
occurs, then in the majority of cases,
losses of human use are also minimized.
But, In some cases, public access to the
resource may be cut off by the project
and sIgn ficant recreational or
commercial benefits may be lost.
In those cases where mitigation of
habitat value is not deemed adequate
for losses of fish and wildlife
populations or human uses, the Service
will seek to mitigate such losses in
accordance with the general principles
and concepts presented in the policy.
However, in the majority of cases, the
Service feels that mitigation of impacts
on habitat values will assure a
continuous supply of fish and wildlife
populations and human use
opportunities.
The Service has recently revised and
updated its Habitat Evaluation
Procedures ( 1-IEP). It can be used, where
appropriate, to determine mitigation
needs based on habitat value losses. In
some cases, the project may not be
deemed appropriate for applying the
methodology as In the case of activities
conducted on the high seas under the
Outer Continental Shelf (OCS) leasing
program. In such cases, the use of other
methods to describe habitat value
Impacts Is dearly acceptable, including
the best professional judgment of
Service biologists. Other limitations
related to the use of HEP are outlined In
the Ecological Services Manual (100
ESM 1). The HEP are available upon
request from the Chief, Division of
Ecological Services, U.S. Fish and
Wildlife Service, Department of the
Interior, Washington. D.C. 20240.
4. Acre for Acre Lou Replacement Is
Not Necessarily Recommended by the
Policy.
As explained above, the polciy
focuses on habitat value. The habitat
value of an acre of habitat can vary
considerably depending on the type of
vegetation and other physical, biological
or chemical features. Service
recommendations, therefore, will be
based on the habitat value adversely
impacted, as opposed to strictly acreage.
For example, loss of one acre of a
specific type of wetland might result in
recommendations for replacement of
less than one acre of a different type of
wetland of greater habitat value. If the
habitat value of the wetland available
for replacement was equal to that lost,
then recommendations coulc be on an
acre-for-acre basis.
5. RatIonale for Mitigation Planning
In developing this policy, it was
agreed that the fundamental principles
guiding mitigation are: 1) that avoidance
or compensation be recommended for
the most valued resources; and 2) that
the degree of mitigation requested
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7646
Federal Register / Vol. 46. No. 15 / Friday. January 23. 1981 / Notices
correspond to the value and scarcity of
‘he habitat at risk Four Resource
ategories of decreasing importance
:ere identified, with mitiga tion planning
goals of decreasing stringency
developed for these categories. Table I
summarizes all categories and their
goals.
Table 1: Resource Categortes end
Mitigation Planning Goals
Re.cw tod ds s5oA
asonplaiTrg
t
Hi vikie tot akje5Ofl s dss
— W
Nolci$OI d35flg
P l t v s
No n • ci k .
2
H1 t v ki. tot vekiadCn ‘secis.
ha tiabi 1
snd ot b.conlig scwcs .
vik*
No A loss ci
3
HigIt to ns jvI vMm iw j$Xfl
l w m
w’ ’ d ss .s .d
.4’ .izI
ci
4
Ms 4Ti to low vU* tot t edOA
*Y S loss ci
—
.-
POLICY HISTORY
The policy statement integrates and
outlines the major aspects of current
Service mitigation efforts. Intended as
an overview document. Its guidance Is
based on an analysis of over 350 Service
field recommendations and on the
guidance contained In recent Service
management documents. The proposed
policy was published In the Federal
Register on September 9, 1980 (45 FR
3948&-59494). A correction notice which
corrected insignificant formatting and
typographical errors was published on
September 19, 1980 (45 FR 62564). A
notice extending the comment period on
the proposed policy to November 10.
1980. was published on October 8. 1980
(45 FR 68878). The final publication is
based on full and thorough
consideration of the public comments as
discussed below.
RESPONSE TO COMMENTS
Over 90 sets of comments were
received on the proposed policy. All
comments were thoroughly analyzed
and cataloge& and considered. Many
commentors expressed agreement with
Service publication of the policy.
sensing a more consistent and
predictable Service approach to
mitigation recommendations and a
resultant d crease in the degree of
conflict with developers. Many felt the
policy represented a rational approach
to fish and wildlife resource
management. and that it would provide
for adequate protection and
conservation of the Nation’s fish and
wildlife resources. The underlying
concept that the degree of mitigation
requested should correspond to the
importance and scarcity of the habitat at
risk was also supported by many
commentors. Numerous comxnentors
also praised its scope. cohesiveness and
clarity, and stressed that It should
provide valuable guidance for
Government personnel providing
technical and project planning
assistance.
Detailed responses to significant
comments follow:
GENERAL COMMENTS ON THE
PROPOSED SERVICE MITIGATION
POLICY
Comment. Although the Service
prepared an Environmental Assessment
and, from its findings, concluded that
policy Issuance did not constitute a
major Federal action which would
significantly affect the quality of the
human environment within the meaning
of Section 102(2)(C) of the National
•Environmental Policy Act (NEPA). a few
cornmentors disagreed with the
Service’s conclusion that an
Environmental Impact Statement (EIS)
was not necessary for the proposed
action.
Response: During policy development.
the Service took action to determine If
preparation of an environmental impact
statement under N A was required.
Although section 1508.18 of the Council
on Environmental Quality’s (CEQ)
Regulations for implementing the
procedural provisions of NEPA
classified adoption of an official policy
as a “Federal action,” It remained
unclear as to whether this action was
“major.” or whether it would
“significantly” affect the quality of the
human environment, since policy
implementation would not result in or
substantially alter agency programs. As
was stated In the preamble, this policy
is basically a distillation of approaches
and policy currently being practiced by
Service field personnel in providing
mitigation recommendations.
In order to resolve this uncertainty, an
Environmental Assessment was
prepared for the proposed and final
policy. By doing so, the Serb ice has
complied with one of the major purposes
of the NEPA regulations. which is to
have NEPA applied early in the
decisionmalung process.
The NEPA regulations do not. in the
opinion of the Service, require that the
agency speculate on future, possible
events without any relation to actual,
existing impacts of an action. Section
1502.2 of the NEPA regulations directs
that an EIS is to be analytical. however,
the Service action simply does not
create any impacts capable of such
analysis. Thus, there is no reasonable or
scientific way for the Service to analyze
any environmental impacts. significant
or otherwise, as discussed in §1 1502.16
and 1508.27.
This problem is particularly vexsome
when those impacts depend on future
contingencies and can be more
appropriately analyzed when those
contingencies occur. Even § 1502.4.
which discussed EIS’s in terms of broad
agency actions, does so in the context of
specific in p cts caused by the action. In
the opinion of the Service, it has fully
complied with the letter and spirit of
NEPA and its regulations.
Comm qnL One comnientor felt that
the pream le statement that an EIS
would be premature at this time
contradicted a finding of no significant
Impact.
Response: The Service sees no
contradiction with a finding of no
significant impact and the statement
that an EIS Is premature. The finding of
no significant impact derives from an
analysis showing that the policy has no
significant Impacts amenable to analysis
at the present time. However, when in
the future the Service does apply the
policy In developing mitigatl n
recommendations for a major Federal
action which might significantly affect
the quality of the human environment.
then the environmental impacts
associated with implementing those
recommendations which are considered
justifiable by the development agency
can be analyzed by that development
agency. The Service has no way of
predicting which of its recommendations
will be accepted by the developen
therefore, analysis of impacts of
accepted mitigation recommendations is
the responsibility of the developer.
Comment. One commentor was of the
opinion that an EIS “should be prepared
for the Service’s proposed mitigation
recommendations on each project.”
Moreover, the commentor felt that a
significant portion of these EIS’s should
be devoted to analysis of economic
impacts.
Response. Mitigation
recommendations and actions cannot be
meaningfully analyzed except in the
context of the development action
initiating them. And, since an ELS would
be required for any major Federal action
which would significantly affect the
quality of the human environment and
whose alternatives would include
consideration of mitigation. a separate
EIS would not be necessary for
mitigation actions.
Under the FWCA. the action agency
which makes the ultimate decision s to
include all ‘justifiable mitigation means
and measures” in project formulation.
The burden of analyzing the economic
impacts of “justifiable” mitigation
measures therefore rests primarily with
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Federal Register / Vol 46, No. 15 I Friday, January 23, 1981 / Notices
7647
the project sponsor. who will likely use
the Water Resources Councils
p nciples and Standards to assist in the
a aly5i9.
Comment The substantive
quiremeh its of the Service mitigation
noliCy should be consistent with the
cequiremants of the National
EnV1rofl rentai Policy Act’s
j plemefltiflg regulations and the Water
Resources Council’s Principles and
Standards.
Response We agree The proposed
and final policy have been developed
consistent with the substantive and
procedural requirements or these
regulations.
Comment The Environmental
Assessment identifies as one of the
advantages of the proposed mitigation
policy the estakJishment of” * *
minimum perfd iiance standards for
FWS recommendations (which would
serve as benchmarks by which the FWS
and developers or action agencies’ * *
could assess individual Service
mitigation proposals.” However, neither
the Federal Register notice nor the
Environmental Assessment identify or
discuss these “benchmarks.”
Response: The term “benchmarks”
referred to the mitigation goals and
plRnnmg procedures. Both the proposed
policy preamble and its Environmental
Assessment discussed these guidelines.
explaining their derivation and
Importance to policy purposes.
However, a point of clarification is
needed regarding these guidelines. It is
the recommendations made by Service
personnel that would be measured
against these standards, not the
mitigation implemented by an action
agency. The final policy makes this
point explicit
Comrnenf, Many commentors argued
that the proposed policy goes beyond
that authorized by law. Specific concern
was expressed over the use of words
that were mandatory in tone (e.g..
“require” and “must”) as opposed to
advisory. In addition, some commented
that the Service has no authority to
support or oppose projects as stated in
the policy.
Response: The Service agre s that the
legal authorities for the mitigation policy
do not authorize the Service to exercise
Veto power over land and water
development activities. Thai
understanding was implicit in the
Proposed policy. Appropriate changes
have been made in the policy to more
explicitly recognize and signify the
advisory nature of the Service
responsibility,
However, it should be clearly noted
that the Fish and Wildlife Coordination
Act places clear mandatory
requirements on Federal development
agencies falling under that Act’s
authority to (1) consult with the Service,
National Marine Fishenes Service
(NMFS) and State agencies responsible
for fish and wildlife resources, (2)
incorporate such reports and
recommendations in one overall project
report, (3) provide ‘full consideration”
of the “reports and recommendations,”
(4) include in the project plan “such
justifiable means and measures for
wildlife purposes as the reporting
agency finds should be adopted to
obtain overall maximum project
benefits;” and (5) other requirements
related to funding and land acquisition.
The clear intent of Congress was that
recommendations developed by the U.S.
Fish and Wildlife Service, NMFS, and
State agencies responsible for fish and
wildlife resources be taken seriously,
and we know of no law which prohibits
the Service from taking a position for or
against a project when making
mitigation recommendations.
Comment. The policy will adversely
impact developmental interests.
Response: The goal of the policy is to
provide for equal consideration of fish
and wildlife conservation while
facilitating development
Congress has clearly stated that
“wildlife conservation shall receive
equal consideration and be coordinated
with other features of water-resource
development programs” (Pub. L 85-824,
Fish and Wildlife Coordination Act).
This advice is further amplified in
Senate Report 1981 on the FWCA (84th
Congress, 2nd Session (1958)). The
Congress recognized that in some
Instances, the level of dollar benefits to
some purposes might have to be
diminished “in some slight degree” in
order to accomplish the fish and wildlife
conservation objectives of the Act.
However, policy issuance should
benefit developmental interests. By
providing developers with a clear
picture of Service mitigation concerns
and priorities, the policy will allow
developers to anticipate Service
mitigation recommendations prior to
final decisions on project design and
location. By reducing a developer’s
planning uncertainties, the policy will
result in lowered project costs and
fewer project delays and conflicts.
Comment. Does the policy present
general guidance or minimum require&
standards? The Service appears to be
trying to establish required standards
Response: The final policy sets out
mitigation goals and planning guidance
to guide the deveIop ment of Service
mitigation recommendations. It does not
require absolute strict adherence to a
required standard. Changes have been
made to reflect this
Comment No mention is made of the
State role in mitigation planning to
assure a compatible approach. The
States’ authorities and decisionmaking
prerogatives with respect to fish and
wildlife resources should be denoted
and the States’ roles in mitigation
should be emphasized further.
Response A compatible approach is
desirable. We have included appropriate
changes. However, the policy is solely
for Service personnel. There is no intent
to infringe on the States’ prerogatives.
CommenL The policy should require
full public disclosure of Service
mitigation analyses, determinations, and
recommendations.
Response: We agree that full
disclosure of Service analyses,
determinations and recommendations
during the mitigation process would
serve the public Interest All public
documents associated with Service
recommendations for mitigation on
specific land and water developments
are available for review in Ecological
Services field offices. No change En the
policy is necessary.
CommenL The Service should
specifically address the acid rain
problem and its policy. In particular, the
policy should address the Impact of
Federal policies and programs that
support power plant conversions to coal.
Response: The Service currently
reviews such Federal actions under
NEPA. since these policies and
programs are likely to require an EIS.
Because acid rain has been highlighted
as an Important Resource Problem (IRP)
by the Service, environmental analyses
which do not adequately address acid
rain problems will receive particular
attention by Service reviewers. Our
comments will be technically reinforced
by Service research already being
conducted In this area. Since the policy
already covers this issue, no change is
necessary.
Comment , Could the mitigation policy
call for a recommendation as extreme as
reflooding of the Mississippi River
Valley?
Response: The mitigation policy
would not lead to so extreme a
recommendation because it does not
apply to development actions completed
prior to enactment of Service authorities
or exempted by those authorities. In
those situations where the policy does
apply, there will be no recommendations
for mitigation over and above the level
of impacts associated with a project
This policy acts to minimize impacts of
projects, not reverse them.
Comment, Which agency enforces this
policy and what power does it have?
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7643
Federal Register I Vol. 46. No. 15 I Friday. January 23. 1981 I Notices
Response: This is a policy that applies
‘v to Service personnel It does not
letermine the actions of other
ieral agencies, nor the actions of
tate agencies or developers. Although
the policy statement Is not judicially
enforceable, the Service will administer
the policy by monitoring the mitigation
recommendations made by Its own
personneL
Comment.’ Too often land acquired for
mitigation does not provide the
spectrum of resource values previously
available because the managing
agency’s philosophy prevents it from
managing the land for a mix of goals.
Response: Lands acquired for
mitigation purposes must provide the
specific mitigation benefits for which
thete were intended. Secondary land
uses, such as provision of timber, oil and
gas exploration, or recreational benefits.
should be attempted where these uses
are compatible with the mitIgation
lands’ primary purpose. This concept
has been added to the policy.
SPECIFIC COMM 4TS ON THE
MmGATION POLICY
(These comments are keyed to
sections of the proposed policy.)
L Purpose
Comment.’ Why is this policy
epparently unconcerned with flora?
Response: Mitigating for fish and
Idilfe loses necessarily means dealing
th the plant communities on which all
animal life Indirectly depends. When
habitat is preserved, it is the plant
communities that are the vast bulk of
the living material of that habitat.
Plants per se are addressed by other
authorities of the Service which are not
within the scope of this policy, such as
the Endangered Species Act and
associated regulations.
II. Authority
No comments
III. Scope
Comment’ How does the policy affect
projects already completed or under
construction?
Response Appropriate changes in the
Scope section have been made to clarify
policy coverage with regard to
completed projects or projects under
construction.
Comment’ Since Federal permit
renewals will result in no new effects on
the environment, they should be exempt
from the policy.
Response: The permit or license
renewal process provides an
opportunity to re-evaluate the project.
Depending on new scientific information
-oncerning impacts. the adequacy of
ast developer mitigation efforts, or new
authorities, new mitigation.
recommendations may be necessary.
Not infrequently, permit or license
holders use the renewal process as a
convenient occasion to seek changes in
their permits. Any changes in permit or
license holders’ activities have to be
evaluated to determine whether or not
they necessitate new mitigation
recommendations.
This policy, therefore. will be used by
the Service in permit or license renewal
proceedings. keeping in mind that
Service recommendations are advisory
to action agencies- Appropriate changes
were made in the pblicy to reflect this
position.
Comment. Does this policy apply to
man-Induced wetlands?
Response: Where the Service has the
authority and responsibility to
recommend mitigation for these
habitats, the tenets of the policy shall
apply.
Comment. There is a need for a
mechanism for evaluating enhancement
and a means to differentiate it from
mitigation.
Response: Although enhancement is
an important concern of the Service, the
Service mitigation policy should not
serve as the primary vehicle for
discussing enhancement- The final
policy does differentiate between
enhancement and mitigation
recommendations by defining
enhancement to include measures which
would improve fish and wildlife
resources beyond that which would
exist without the project and which
cannot be used to satisfy the
appropriate mitigation planning goal. As
for evaluating enhancement, it would
appear likely that many of the
procedures that can be used to evaluate
mitigation can be used to evaluate
enhancement.
Comment’ What is the basis for the
policy position that enhancement cannot
occur until all losses are compensated?
There is no legislative history for this.
Response Unfortunately, the term
“enhancement” suffers from wide
differences in semantic usage- The
proposed policy used the term to be
synonymous with improvements beyond
the achievement of full mitigation This
strict interpretation appeared to spark
controversy
The final policy incorporates a
different usage of the term
Enhancement is used to describe
measures not necessary to accomplish
mitigation purposes.
Comment The policy should credit
towards mitigation goals those habitat
value increases associated with areas of
the habitat which are enhanced by the
project Habitat value should be
computed for enhancement activities.
and the inclusion of habitat
enhancement factors would provide for
a more accurate estimate of the project’s
impact on the environment.
Response: Use of the term “habitat
enhancement” to describe development
or improvement efforts is confused by
this comment. The mitigation policy
does not cover enhancement as we have
described it. However, where habitat
improvement or development caused by
a project will result in habitat value
increases: If may be considered as
mitigation when consistent with the
resource category designation criteria
and the appropriate mitigation planning
goal.
Comment. There should be a clear
statement that all opportunities for
enhancement of fish and idhfe
resources be thoroughly considered and
included in project plans to the extent
feasible.
Response: We agree. Appropriate
changes were made.
IV. Definition of Mitigation
Comment.’ Some commentors
indicated concern over the definition of
mitigation as used in the policy. Specific
concern was expressed that those
aspects of project planning that include
avoidance or actions to minimize
impacts should be considered good
project planning and that mitigation
should be confined solely to actions to
compensate for resource losses.
Response’ The Service agrees that
avoidance or actions to minimize
impacts should be part of the early
design of projects and not just and
afterthought. Some consider mitigation
to be a separate and distinct process
that occurs after project planning has
been completed. The legally binding
definition of mitigation as used in the
regulations to implement the National
Environmental Policy Act (NEPA) can
have the effect of altering this notion
through incorporation of all those
actions that can lessen project impacts
throughout the planning process
The policy has been modified to more
clearly state that the Service supports
and encourages incorporation of
features that will reduce adverse
impacts on fish and wildlife resources
as part of early planning and project
design in order to avoid delays or
conflicts But without the emphasis on
avoidance and minimization provided
by the NEPA regulations’ definition.
there would be little incentive for
development agencies to incorporate
such features The Service, therefore.
supports and adopts that definition
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Federal Register I Vol 46, No 15 I Friday, January 23. 1981 I Notices
7649
v. itiga 0fl Pohcy of the US. Fish and
Wildllle Service
Comment A number of documents are
1 .eferred to in the draft policy. They are
essential to the functioning of the policy
and should be published as an appendix
and otherwise made available for public
comment, including public hearings.
Response. The preamble to the
proposed policy clearly indicated that
the policy was designed to stand on its
own. The referenced documents are not
essential to the functioning of the policy.
For instance, even though Service filed
personnel will rely basically on the
Habitat Evaluation Procedures in
conducting project analyses, the policy
indicates that other methods can be
used where appropriate and available.
The concept of habitat value has been
recognized throughout the history of fish
and wildlife management. It is not new.
Regardless of the fact that the policy
stands on its own, the referenced
documents have undergone varying
degrees of public scrutiny independent
of the mitigation policy. For Instance, a
notice of availability and request for
public comment was published in the
Federal Register for the Service
Management Plan and Program
Management Document on September
29, 1980 (45 FR 64271—64272). A habitat-
based evaluation methodology has been
under active development in the Service
since 1973. The first document officially
called the Habitat Evaluation
Procedures was published In 1976 with
the most recent revision in 1980. During
this 7 year period. The Nation’s top
wildlife biologists have been consulted.
both within the government and outside.
The procedures have been presented at
numerous public conferences and have
been the subject of intense scrutiny.
Finally, the referenced documents
were made available to reviewers. Over
75 requests were made and Immediately
filled to allow commentors the full
benefit of this information In preparing
comments, including the group providing
this comment. Minor changes were
made in the policy to more clearly
indicate that the policy can tand on its
own.
A. General Prlndples
Commenti Pursued to Its logical
conclusion, the concept of 1sb and
wildlife as public trust resources could
lead to serious restrictions on the use
and management of private lands.
Response: When the concept of
personal property rights is exercised in
such a way as to jeopardize the Interests
of the public in fish and wildlife
resources on public or private lands, the
government may use its authorities to
see that any damage to those interests is
prevented or mitigated.
The Service does and will attempt to
fulfill its duties within its authorities and
in a reasonable manner. It is certainly
cognizant of the fact that pursuing any
concept to its logical extreme may lead
to unreasonableness. and will continue
to strive to prevent this from happening
in its mitigation activities
CommentS What does “equal
consideration” of wildlife conservation
mean within the context of the Fish and
Wildlife Coordination Act and this
mitigation policy?
Response: “Equal consideration” was
not defined in the Act or this policy, and
has no particular meaning in the context
of this policy. This policy only covers
Service recommendations, not action
agency requirements.
CommenL The proposed Service
policy now absolutely precludes support
for non-water dependent projects within
or affecting waters of the United States.
This should be modified to conform to
the requirements of Federal regulatory
agencies such as the Army Corps of
Engineers (COE) and the Environmental
Protection Agency (EPA).
Response: The Service policy clearly
does not exercise veto power over
development actions. Moreover, the
Service will execute its responsibilities
fully within the context of existing laws
and regulations governing
environmental reviews. However, the
Service feels that wetlands and shallow
water habitats should not be subjected
to needless development of the public
values of these areas. The Service policy
statement does not include water
dependency as the “sole” criterion for
its recommendations. Other factors,
Including the likelihood of a significant
loss, are consIdered prior to a Service
recommendation for support of a project
or the “no project” alternative
The provisions of the policy have
been modified to make such
recommendations discretionary.
Comment? Congress, not the Service,
is the entity that has the authority to
require and fund compensation for
Federal projects.
Response: We agree. The Policy has
been modified.
Comment.? Mitigation should not be
required for an Indefinite period of time.
Response: Mitigation is approliriate
for the entire time period that habitat
losses persist, which includes the life of
the project and as long afterwards as
the impacts of the project continue to
exist. The policy reflects this position.
Comment.? Under “General
Principles,” the policy should seek and
endorse novel or Imaginative
approaches to mitigation.
Response The Service fully supports
development of novel and imaginative
approaches that mitigate losses of fish
and wildlife, their habitat, and uses
thereof, and has been in the forefront of
such development. No change is
necessary
Comment An Indian tribe strongly
supports the Department of the Interior’s
recognition of the role of Indian tribal
governments in mitigation planning.
Response. Our national heritage and.
in some cases, the livelihood of Indian
tribes, can be directly linked with the
conservation and use of fish and wildlife
resources Therefore, the U.S. Fish an’d
Wildlife Service will continue to
recognize and support Indian tribal
governments’ efforts to mitigate impacts
on these resources.
B. U.S. Flab and Wildlife Service Mitigation
Goals by Resource Category
Comment? The mitigation goals for the
resource categories were characterized
as: reasonable, too strict, or not strict
enough.
Response: As was explained in the
preamble to the draft policy, the
resource categories and their mitigation
goals were abstr cted from an analysis
of actual field recommendations. The
designation criteria for the resource
categories (replaceability, scarcity, and
value for evaluation species) are the
basic decision factors used by Service
personnel to assess relative mitigation -
needs. The mitigation goals represent
reasonable mitigation expectations for
pro jects, viewed In the light of our two-
faceted goal—(1) to conserve, protect
and enhance fish and wildlife and their
habitats, and (2) to facilitate balanced
development of our Nation’s natural
resources.
Numerous comments were received
commending us on the balanced
approach embodied In this policy. Since
its tenets derive from field
recommendations and comments, the
credit belongs entirely to our field staff.
Some commentors criticized the
mitigation goals. One group felt that one
or several of the mitigation goals were
too strict. These commentors objected to
what they considered to be
unreasonably high goals for fish and
wildlife mitigation. In contrast to this
first group, another set of commentore
felt that the goals were not strict
enough, and called attention to our
legislative responsibility to seek
protection for all fish and wildlife -
resources.
Our response is that the mitigation
goals represent the best professional
judgment and cumulative experience of
Service field supervisors in developing
mitigation proposals that would satisfy
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7650
Federal Register / Vol. 48, No. 15 / Friday, January 23, 1981 I Notices
nm ’ legislath,e mandates, operate under
and money constraints, and assist -
ixI1 t7ng overall social well-being.
basic concept. therefore, is
unchanged In the final policy, although
minor changes were made to improve
understanding based on the comments.
Comment. Rather than rely on strict
inflexible mitigation goals, the Service
should use “tradeoff’ evaluation
procedures in developing mitigation’
proposals.
Response: It is the responsibility of
the Federal action agency to use
tradeoff evaluation procedures
consistent with the Water Resources
Council’s Principles and Standards.
where applicable, to select a mitigation
alternative that will assist in maximizing
overall project benefits. The Fish and
Wildlife Coordination Act specifies that
“the project plan shall include such
justifiable means and measures for
wildlife purposes as the reporting
agency (emphasis added) finds should
be adopted to obtain maximum overall
project benefits.” The role of the Service
is to represent those public trust
resources under Its jurisdiction. The
proposed policy outlined a system
wherein the highest valued resources
would be subject to the most protective
mitigation recommendations. Few, if
any. commentors have disagreed with
valuation perspective. Therefore. no
inges were made.
lowever, many commenters have
questioned the reasonableness of a
seemingly uncompromising system that
did not appear to allow occasional
deviations from these goals.
The system is not rigid. As stated in
the Purpose section of the policy, the
policy advice will be used as guidance
for Service personnel. but variations
appropriate to individual circumstances
are permitted.
Comment. Numerous commentore
raised the issue of the somewhat
subjective nature of identifying certain
species as “important” for the purposes
of the policy. In addition, commentors
indicated that such distinctions could
lead to mis-classification of habitats in
terms of resource categories and that
clear criteria were needed. Finally.
many comjnentors felt that the artificial
distinction of certain species as
“important” was both a violation of the
public trust and Service legal
authorities.
Response. People perceive some
species to be more important than
others. In the context of biology and
ecology, all species are important.
serving a useful purpose within the
confines of their biological niche. The
tigation policy must address both the
eds and desires of human society and
the ecosystem perspective. This is a
difficult task. But human decisions
concerning fish and wildlife resources in
the face of a development action require
judgment about the values of what will
be lost and the need to avoid or
minimize and compensate for loss of
such values.
The specific criteria for such
determinations are also exceedingly
difficult to frame in a National policy
context. The importance of a species to
society depends on a complex, changing
mix of factors. The linportance of a
species within an ecosystem is also
subject to many dynamic factors. But
human decisions about the level and
type of mitigation necessary for
development actions must be made in
the absence of perfect information
concerning these factors. In adthUo the
Service biologist reviewing project
impacts has severe constraints on the
number of species and ecosystem
linkages that can be analyzed given
funding. personnel and time limitations.
Somehow, choices must be made.
We have deleted the term “important
species” from the policy and replaced It
with a more precise term, ‘evaluation
species,” The criteria for selection of
evaluation species still includes those
species of high resource value to
humans or that represent a broader
ecological perspective of an area. Other
changes have been made related to the
determination of resource categories to
allow for additional public input and
resource agency coordination intn such
determinations, where appropriate.
The effect of this change Is not
intended and shall not be interpreted to
broaden the scope or extent of
application of this policy. But It does
remove the implication that species can
be ranked against each other in terms of
their overall importance to society,
which many considered quite beyond
the capability of human beings.
Comment. The wording of the policy
should clearly indicate that species
selected for analysis should only be
those demonstrated to actually utilize an
area.
Response We agree, except for
situations where fish and wildlife
restoration or improvement plans have
been approved by State or Federal
resource agencies. In that case the
analysis will include species identified
in such plans. Appropnate clarification
has added to the definition of evaluation
species
Comment. The proper focus of the
policy should be the ecosystem rather
than particular species.
Response. Aside from the very real
technical problems of applying a
complex concept such as the ecosystem
to mitigation planning, the authorities
underlying this policy deal with fish and
wildlife and their habitat, rather than
ecosystems.
Ecosystems are addressed under this
policy in two ways. First, one criterion
in the selection of an evaluation species
is the biological importance of the
species to the functioning of its
ecosystem. Secondly, when habitat loss
is mitigated. the part of the ecosystem
comprising that habitat is itself
protected. No changes have been made.
Comment Recreatioflal use losses
may at times have to be directly
mitigated. The goal statements should
reflect this need.
Response. We agree Appropriate
changes were made.
CommenL In addition to assessing
conditions of scarcity from a
biogeographical viewpoint. i e..
ecoregions, the policy should also use
geopolitical subdivisions. e g.. state
boundaries.
Response: As a Federal agency, the
Service perceives its major
responsibility to be to protect those fish
and wildlife and their habitat that are
valuable and scarce on a national level,
whether or not they transcend state
boundaries. However, should State
resource agencies with to outline
relative scarcity on a more local basis,
Service personnel would certainly
assist, whenever practicable. This point
has been added to the policy.
Comment. The policy should scale the
relative need to achieve a particular
mitigation goal to the degree a particular
habitat will be impacted. For example. if
a half.acre of important habitat is
affected by a project and it is part of a
one-acre plot, this circumstance should
lead to a nutigation recommendation
different from the situation where the
same half-acre is part of a ten thousand
acre area. As drafted, the policy does
not reflect the differences in these
situations.
Response The Purpose section of the
policy states that it will be used as
guidance for Service personnel. but
variations appropriate to individual
circumstances will be permitted The
relative need to achieve a particular
mitigation goal depends primarily on the
perceived value of the habitat, its
scarcity. and the replaceability of the
threatened habitat. Other factors, such
as scaling considerations, can combine
to modify this general Service
perspective on what constitutes
appropriate mitigation.
Comment. The resource categories
and mitigation goals are general. lack
definition, and provide no guidance on
habitat value. These categories are all
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7651
subject to interpretation by the Service
field personnel
Response It would be
counterFoducti%le. if not impossible, for
a national policy to be worded as
preciselY as the commentor suggests and
still be implemented in a reasonable
manner under numerous and diverse
local circumstances Words used to
describe res0uI e categories and
mitigation goals do have generally
understood meanings It is essential that
field personnel be allowed to exercise
professional judgment in applying
resource categories and mitigation goals
to specific activities However,
numerous clarifying changes were made
based on the comments to increase
comprehension and understanding
Comment: It is essential to other
agencies’ review to know what general
types of habitat will be most important
in the U.S. Fish and Wildlife Service
mitigation policy. At a minimum, some
examples of the types of habitat within
each category should be given.
Response: The final policy does give
guidance on areas that will be generally
considered for Resource Category 1 or 2.
Providing examples for all resource
categories could be misleading since the
same type of habitat may fall into
several different resource categories,
depending on, among other factors. Its
relative scarcity and quality from one
local to another across the nation.
On the other hand, field professionals
are generally familiar with the quality
and abundance of a given type of
habitat that is in their area, so it is
preferable not to burden them with
potentially inappropriate guidelines of
this nature.
CommenL’ The policy should clearly
distinguish between upland habitats and
the more valuable wetland habitats.
Response: In some cases, upland
habitats may be determined to have
resource values equal to or greater than
wetland habitats, so a policy that solely
favored one habitat type over the other
would not be in the best public interest.
However, the policy has been changed
to indicate that certain habitats within
Serv ice.identifietj Important Respi rce
Problems (IRPs) and special aquatic
Sites should be given special
Consideration as Resource Category I or
2. The lRPs contain a predominance of
wetland coastal areas.
Cornment If you build something in a
habitat, it just changes it to another
habitat that some other animal or fish
lives in—including the human being,
although the Service does not seem to
appreciate that. For example, If you
build a highway, it Is bad for dogs,
rabbits, opossuina and field ’ rats and
Such that get run over by cars and
trucks, but it is good for crows and
buzzards that eat dead meat.
Response The Service has not come
across many instances where crows and
buzzards could be considered scarce,
but when such a circumstance can be
documented and verified, the Service
will certainly try to protect and enhance
valuable highway habitat.
• Resource Category 1
Comment A literal interpretation of
the Resource Category I mitigation goal
would require absolutely no habitat
loss—not even a nature trail Resource
Category I should be deleted.
Response: Not all environmental
changes are adverse to the habitat of a
fish and wildlife resource. If a nature
trail resulted in an insignificant impact
on habitat value that was determined
not to be adverse, then the Service
would not recommend against it. The
policy has been clarified to reflect this
point.
Comment, Endangered and threatened
species should be included as part of
Resource Category 1.
Response: It would be inappropriate
to expand the scope of the Mitigation
Policy to include threatened and
endangered species. The treatment of
these species is addressed in an
extensive body of complex and detailed
legislation and regulation. The Congress
has legislated very specific and precise
law with regard to threatened and
endangered species. Inclusion of these
species under this policy would only
confuse the Issue and compound the
difficulties involved in implementation
of the Endangered Species Act and its
associated regulations. Other reasons
are discussed in the scope section of the
final policy.
Comment, For all practical purpposes,
Resource Categories 1 and 2 adopt a “no
growth” policy.
Response. The U.S. Fish and Wildlife
Service is not advocating a “no growth’
mitigation policy. The means and
measures to achieve mitigation for
Resource Categories I and 2 are
designed to provide some flexibility so
that limited growth can occur In an
environmentally prudent manner. The
policy reflects the national consensus
that some habitats are of exceptional
public value and should be carefully
conserved, as evidenced in the Wild and
Scenic Rivers Act (Pub. L. 90—542), the
Wilderness Act (Pub. L. 88—577), and the
National Trails System Act (Pub. L 94—
527).
Resource Category 2
Comment. It is ifi-advised to support
in-kind replacement Involving trading
habitat for lesser value habitat which is
then impro ed to support the species
affected by the project It takes too long.
and in the meantime, populations
supported by the habitat on the project
site are lost
Response If the period required for
improving the replacement habitat to the
appropriate condition was exceedingly
long, this may be one indication that the
habitat at risk was unique or
irreplaceable and actually belonged In
Resource 1 In that case in-kind
replacement through improvement of
lesser quality habitat would be an
inappropriate mitigation
recommendation. Also, additional
measures aimed at population
restoration could be recommended to
restock the area, provided suitable
habitat was available to support the
stocked species. No changes were made.
CommenL’ One Commenter was
perturbed by an apparently rigid
Insistence by the policy of in-kind
replacement of lost habitat. The
cominentor pointed out that there could
be occasions In which in-kind habitat
was not available to a project sponsor.
Response: The policy guideline for
Resource Category 2 includes an
exception when “ in.k lnd
replacement is not physically or
biologically attainable”. No change was
necessary. -
CommenL The policy appears to insist
upon “acre-for-acre” replacement of in-
kind habitat.
Response. The policy does iiot insist
on “acre-for-acre” replacement of in-
kind habitat. The mitigation planning
goals involving in.kind replacement
specifically ask for replacement of in-
kind habitat value. This point has been
further clarified in the definitions
section. throughout the policy, and in the
policy preamble.
• Resource Category 3
ConimenL’ The mitigation goal for
Resource Category 3 Is not authorized
by law and will be difficult to implement
due to professional disagreement on
satisfactory achievement.
Response: Under the Fish and Wildlife
Coordination Act, the Service has the
responsIbility to recommend
compensation for the loss of fish and
wildlife resources. The Act does not
restrict compensation to In-kind
compensation. By recommending out-of-
kind compensation under certain
circumstances, the Service increases the
range of options that developers may
use to mitigate project impacts to
include development and improvement
of marginal resources different from
those lost. However, modifications have
been made in the policy to indicate that
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Federal Register / Vol. 48, No. 15 / Friday, January 23. 1981 / Notices
in-kind replacement is preferred for
Resource Category 3.
Comment’ The mitigation goal for
esource Category 3 should emphasize
that in-kind habitat value replacement Is
preferable to out-of-kind replacement.
Response: We agree. This point has
been brought out In the final policy
statement
CommenU Although out-of-kind
replacement Is acceptable for Resource
Category 3 losses and, under certain
circumstances, may be accepted for
Resource Category 2 losses, the policy
should advise against re ’placernent of
rare habitat types for more common
habitat types.
Response: We agree with the
commentor’s point and expect that
Service field personnel will recommend
mitigation alternatives that Incorporate
this concept. to the extent practicable.
The Service is entirely in favor of
preserving and/or promoting habitat
diversity. No changes were necessary.
• Resource Categories 4 and 5
ComnmenLr Compensation should be
included as a means for satisfying the
mitigation goal for Resource Category 4.
Response: Appropriate language
changes have been made to allow for
such recommendations,
Comment. Habitats encompassed by
Pesource Categories 4 and 5 are the only
nreas wherein significant increases in
fish and wildlife can be realized through
habitat improvement Yet, the mitigation
goals for these categories allow
continual loss of these areas which
possess great potential for
improvements in carrying capacity.
Response: The Service appreciates the
significance of areas with relatively low
existing habitat values with respect to
their potential for carrying capacity
improvements. In fact, the Service may
recommend improvement of these areas’
habitat values to mitigate for
unavoidable losses In Resource
Catorgones 2 and 3. In addition, where
these areas are included in a project
planning area and are not appropriate
for mitigation efforts, the Service will
recommend that all opportunities for
enhancement of these areas be
thoroughly considered and included in
project plans. where practicable
We have amended the policy to
include the above guidance.
Comment. Resource Category 5 is
confusing and unnecessary. All habitat
has some value, no matter how low. It
should be redefined or deleted.
Response. We agree. This resource
category has been deleted from the final
policy.
C. Mitigation Planning Procedures
1. Mitigaçion Goals
Commenb Developers. Federal
resource agencies. and the public should
participate with the Service and State
agencies in making Resource Category
determinations and in developing
mitigation proposals.
Response: Developers. as well as
other members of the public, may
provide information that will assist the
Service in making Resource Category
determinations. l’his opportunity has
been noted in the final policy statement
Moreover, where these parties’ inputs
will significantly aid in development of
mitigation proposals that will
adequately satisfy mitigation planning
goals. the Service will welcome their
input
Comment’ It is hoped that
reclassification of habitats In Resource
Category 3 to Resource Categories 2 or 1
can be readily employed if and when
certain habitats becothe more scarce.
Response: Resource Category
determinations are made on the basis of
conditions likely to occur without the
project. if those conditions later change.
the Resource Category of a given habitat
can be redetermined.
However, once a mitigation plan in
connection with a given project has
been agreed upon, the U.S. Fish and
Wildlife Service will not provide new or
additional recommendations except
under limited circumstances as outlined
in the policy under the scope section.
2. Impact Assessment Methods
Comment’ The policy does not appear
to recognize that development activities
may also show positive environmental
effects. For example, cleared spaces
beneath power lines can provide
browsing areas for wildlife. Such
positive effects should be factored into
the mitigation assessment process.
Response: We agree. This point has
been included in the final policy
statement The final policy further
indicates that the Service and other
State and Federal resource agencies
shall make the determination of whether
a biological change constitutes a
beneficial or adverse impact However.
when determining mitigation needs for a
planning area, the Service will utilize
these policy guidelines to determine
whether these positive effects can be
applied towards mitigation.
Comment. The draft policy Indicates
“no net loss” as a goal for certain
Resource Categories but it is unclear in
defining the time period allowed to
restore the land to its original value as
in the case of strip mining operations.
Maintenance of “no net loss” throughout
the life of a long-term operation is not
possible.
Response: The policy states that the
net biological impact of a specific
project proposal is the difference in
predicted habitat value between the
future with the action and the future
without the action. l’his is based on the
procedures established by the Water
Resources Council’B Principles and
Standards. The future with the project
determination includes consideration of
losses during the life of the project.
Under the policy, if the disturbed habitat
is of suf cient value for evaluation
species to warrant a Resource Category
2 or 3 level determination, the Service
will provide recommendations for “no
net loss” over the life of the project The
ability of the project sponsor to achieve
this goal depends on many factors that
cannot be predicted in advance. In many
cases. It will be possible to achieve this
goal. No change was necessary.
Comment. The with and without
analyses should make allowances for
human activities and natural species
successions which can reasonably be
expected to take place in the project
area.
Response: We agree. Appropriate
changes have been made in this policy.
Comment. Many commentors
disagreed with the emphasis placed on
the Habitat Evaluation Procedures
(HEP) within the Service policy
statement. Some commentors felt it
should be de-emphasized, whereas
others felt it deserved further emphasis.
Response: Although references to the
more technical aspects of HEP have
been deleted, the methodology itself
remains one of the Service’s more
important impact assessment tools. The
policy does not recommend exclusive
use of 1-IEP, since time or resource
contraints may, in some cases, show
alternative methods to be more
practical. Where HEP habitat value
assessments do not fully capture
important biological characteristics
within a planning area, Service
personnel will use supplemental data,
methodologies, and/or professional -
judgment to develop appropriate
mitigation proposals.
Comment: What are the “other habitat
evaluation systems” alluded to in the
policy’s 8ection on impact assessment
methods? This reference is very va Ue.
Response Other systems can inciude
the Habitat Evaluation System (HES)
developed by the Department of the
Army. and the Instream flow
Incremental Methodology (IFIM) of the
U S Fish and Wildlife Service.
Additional systems are refçrenced by,
the Water Resources Council in a
document entitled. “Analysis of
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7653
Wetland Evaluation Procedures” and
other publications Thi . information is
not approorlate for inclusion into the
policY so no change was made.
Comment If other methoaologies are
found to be more appropriate for use
than the Instream Flow Incremental
ethOd0logY (IFIM) for measuring flow
unpacts. they should be used
Response We agree The final policy
does state, however, that consideration
should be given to the use of the EFIM.
Comment Hopefully, this policy will
stop the piecemeal destruction of
valuable habitat, especially in areas like
the Florida Keys where insidious lot-by-
lot development continues in low
wetland sites with the concurrence of
the U.S. Fish and Wildlife Service
Response: The Service does not
concur with piecemeal development
where significant resource losses will
occur. Cumulative impacts are
addressed by this policy. The Service is
sensitive to this loss of habitat and will
seek mitigation consistent with this
policy. No change was necessary.
CommenL Population Information
should be included as an additional
factor in determining mitigation
requirements.
Response: We agree. Although
population mitigation was an Implicit
part of the proposed policy, further
language clarifying this point has been
added to the final policy statement.
Comment’ Professional judgment
should be used as an alternative method
for assessing project impacts.
Response’ We agree that this is a
valuable method that has been in use for
many years It is difficult to improve on
informed and considered scientific
judgment by an expert The Service will
continue to rely heavily on this
approach The policy was changed to
reflect this emphasis
3. Mitigation Recommendations
CommenL Service recommendations
should be timely.
Response’ The proposed and final
tolicy specifically require Service
personnel to present mitigation
reconimendations * * * at the .’earliest
possible stage of project planning to
assure maximum consideration,” This
point has been echoed throughout
Service management documen ,!s.Service
personnel can generally provide timely
guidance provided developers make a
Point of notifying them of proposed
Projects still in the planning stage and
Provided Federal action agencies supply
sufficient transfer funding with which to
Conduct environmental Investigations.
Under Section 2(e) of the Fish and
• Wildlife Coordination Act. Federal
action agencies are authorized to
transfer funds to the Service “‘ * as
may be necessary to conduct all or part
of the investigations required to carry
out the purposes of (Section 2 of
the Act) “ The Service uses these
transfer funds to conduct project-
specific investigations
Comment Requiring field biologists to
consider cost-effectiveness in providing
mitigation recommendations is beyond
their capability and may conflict with
the lead agencies’ role as the determiner
of overall public interest Habitat
protection should be a higher priority
than cost-effectiveness. -
Response’ The proposed policy did
not require a cost-effectiveness analysis
by Service biologists in a formal sense.
We fully agree that Service personnel
must perceive their responsibility to be
analysis and recommendations based on
the biological aspects of project
proposals. There Is no Intent to require
Service biologists to,do a formal
economic analysi& for which they are
not framed nor for which there Is clear
legislative direction. However, the
Service has a responsibility to the public
to give consideration to cost while
recommending ways to conserve fish
and wildlife. The policy has been
changed to reflect this need for
consideration of other factors.
Comment. The Federal action agency
should have the option of non-Service
expertise to develop mitigation
measures In those Instances where the
Service cannot meet lead agency
program requirements.
Response. Although the Service
cannot prevent other agencies from
utilizing biological expertise from non-
Federal sources to develop mitigation
plans, the Fish and Wildlife
Coordination Act specifically authorizes
the Secretary of the Interior to prepare a
report and recommendations on the fish
and wildlife aspects of projects,
including mitigation This report and
recommendations are to receive “full
consideration” by the development
agency. If the Pederal action agency
Involves the Service early and provides
sufficient transfer funds, then the
Service should be able to meet their
needs. No change In the policy was
necessary.
Comment. Several mitigation
proposals should be prepared for each
alternative structural or non-structural
plan.
Response’ The Service Is willing to
prepare multiple proposals provided
funds and time are available.
Comment. Some commentors felt that
concurrent and proportionate funding of
mitigation may not always lead to
optimal mitigation and should not be a
rigid requirement. Other commentors
strongly sLpported concurrent and
proportionate funding
Response The Water Resources
Council’s Principles and Standards
require ‘ * al/east concurrent and
proportionate implementation with other
major project features, except where
such concurrent and proportionate
mitigation is physically impossible”
(emphasis added)
We agree with the Council. and
endorse expenditure of funds at an
earlier stage of project planning when
this will lead to more effective
mitigation Appropriate changes to the
policy on this matter have been made.
CommenL Mitigation costs should
include the coat of managing the
acquired land for the life of the project,
and the value of present and future
timber and crops on acquired land. In
addition, an environmental benefit/cost
analysis should be developed for each
project, and Congress should not
authorize a project unlesa the project
plan Includes the proposed mitigation
program and all its costs, Includin8 the
cost of lost timber productivity and
other resources.
Response: Costing of projects Is
determined by the Water Resource
Council’s Principles and Standards and -
Is therefore beyond the jurisdiction of
this policy. We point out that Service
policy does not preclude timber harvest
or other resource recovery operations on
mitigation lands when the activity is
compatible with fish and wildlife
management objectives.
Comment. The Service mitigation
policy should more clearly note that fee-
simple land acquisition should be a
measure of last resort,
Response: The policy statement has
undergone further modification to more
clearly 8tress the conditions when land
acquisition is to be recommended by
Service personnel In the future, the
Service will place far greater emphasis
on developing mitigation
recommendations that avoid, minimize,
or rectify impacts in order to reduce the
need for compensation lands.
Amplification of this point may be seen
in the section on mitigation planning
procedures.
CommenL If some interest in land
must be acquired, areas of marginal
productivity should be considered first.
Such underdeveloped land would
benefit from better management of its
productive capacity and respond more
vigorously than land already at higher
levels of production.
Response: We agree that special
consideration should be givefl to
marginal lands, and have changed the
policy accordingly.
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Federal Register I Vol. 48, No. 15 I Friday, January 23, 19&1 I. Notices
Comment: Who owns land acquired
‘ r mitigation purposes?
Response: Depending on the
idividual circumstances of the project.
land acquired through fee-simple title Is
usually owned either by the Federal or
State government and administered by
appropriate Federal or State resource
agencies. Where wildlife easements are
acquired, the land belongs to the
property owner, and the easement right
to the Federal or State government.
Comment: The policy should require
Service personnel to identify the
authority to be used in implementing
any mitigation recommendations that
are made.
Response: The final policy clearly
identifies the legal authorities under
which the Service Is expected to
develop mitigation recommendations. In
addition, the policy only applies to
Service recommendations and Is hot an
instrument directing legal research In
Individual circumstances. It would be
Inappropriate to instruct our personnel
to indentify the implementing authority
for the development agendes which are
fully aware of the authorities available
to Implement Service recommendations.
In the case of projects to be authorized
by Congress. authorities to implement
mitigation can be, and increasingly have
been, spelled out.
Comment: The policy neglects to
indicate the necessary process if an
agency does not agree with Service
mitigation recommendations.
Response: This process has already
been established for most Federal
agencies. If the project planners and the
Service field office cannot agree on a
modified or substitute proposal for
mitigation, the matter often Is referred
upwards to the next highest level.
Higher management levels are then
generally able to resolve the issue
quickly, although the Federal action
agency has the final say. No change was
necessary.
Comment’ Mitigation
recommendations should ensure that
habitats which are preserved are
adequate in size and contiguous to
ensure species survival and ecosystem
functioning
Response We agree This point has
not, however, been added to the policy
since it is standard operating procedure
at the field level
Comment Improvement of public use
prospects within a project area should
not be considered mitigation for habitat
value losses. Development of public
access is legitimate mitigation only
when public uses are lost as a result of
project action.
Response. We agree Construction of
public access facilities does not replace
habitat lost or degraded and may even
reduce wildlife habitat and invite
degradation by making an area more
accessible to more people. Construction
of public use facilities may be in the
public interest but should not be
disguised as mitigation for loss or
degradation of wildlife habitat. This
point has been added to the policy.
4. Foiow”up
Comment: The Service should initiate
post.project evaluation studies, as well
as encourage, support. and participate in
these studies.
Response. We agree and will do so
within the constraints of time, personnel
and cost. The Service will initiate
additional follow-up studies when funds
are provided by the Federal action
agency. The policy has been changed to
reflect this.
Comment: Follow-up studies must be
designed so as to separate the effects on
fish and wildlife populations of
implementing mitigation
recommendations from other causes of
changes in species numbers. This has
not been the case in past studies.
Response: We agree in principle, but
point out that this is a very difficult task
technically. and that the conclusions in
tins regard rarely withstand vigorous
analysis.
Nonetheless, distinguishing the true
causes of population changes should be
one of the goals of the follow.up study.
Comment: The policy should indicate
what actions would occur if post-project
evaluation shows mitigation
recommendations are not being
achieved as agreed to by the developer.
Response. We agree. The policy now
includes provisions instructing Service
personnel to recommend corrective
action in such situations.
Appendix A
No Comments.
Appendix B
Comment. Why not include more
intensive management of remaining
habitat as a way of reducing net habitat
loss?
Response We agree. and have
modified the policy accordingly in the
Means and Measures section, which has
since been integrated into the body of
the final policy
The section clearly places priority on
increased habitat management as a
means of replacing habitat losses, and
additionally stresses use of existing
public lands to accomplish these ends.
Comment A mitigation
recommendation of “No project” is not
logical or valid as a mitigation measure.
Response The Council on
Environmental Quality’s definition of
mitigation. winch has been adopted in
this policy, clearly states that mitigation
includes “. . . avoiding the impact
altogether by not taking a certain action
or parts of an action Obviously, a
mitigation recommendation of “No
project” falls under this subset of the
definition, since a project’s impact can
be avoided altogether by a decision not
to constriic a project. -
Appendix C
Comment: The definition of the word
“practicabje” should be amended to
denote thflt the burden of identifying
alternative mitigation measures and of
conducting a searching inquiry into their
practicability rests with the Service as
well as the Federal action agency.
Response: The policy indicates that
the Service will strive to provide
mitigation recommendations that
represent the best judgment of the
Service on the most effective means and
measures to achieve the mitigation goal.
including consideration of cost.
Comment: A definition for
“developments” (as used in Section
VA, “General Principles”) should be
provided in Appendix C.
Response: “Development” is a
general-purpose term encompassing
those activities falling under the scope
of Service mitigation authorities cited
within this policy. For example, if timber
harvesting activities require preparation
of an EIS, or involves waters of the U.S.
and requires the issuance of a Federal
permit or license, the Service would
provide mitigation recommendations
consistent with the policy.
NATIONAL ENVIRONMENTAL
POLICY ACT REQUIREMENTS
The Service has prepared an
Environmental Assessment of this final
policy. Based on an analysis of the
Environmental Assessment, the Director
of the U.S. Fish and Wildlife Service has
concluded that the final action is not a
major Federal action which would
significantly affect the quality of the
human environment within the meaning
of Section 102(2)(c) of the National
Environmental Policy Act of 1969 (42
Ii S C 4321—4347) Thus the policy does
not require an Environmental Impact
Statement (EIS)
The Environmental Assessment and
Finding of No Significant Impact will be
furnished upon request
REGULATORY ANALYSIS
This policy statement has been issued
in conformity with the Department of
the Interior’s rulemaking requirements.
which apply to actions meeting the
broad definition of a rule set forth in the
Administrative Procedures Act. 5 U SC
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Federal Register / Vol 46, No. 15 / Friday, January 23. 1981 / Notices
7655
551(4) and 43 CFR Part 14 2(e) (1980)
This statement is not intended to be
iudiCiaflY enforceable It will not be
odified It does not create private
rights it only guides internal Service
adjninist i’atbon dnd is not to be
nl1exibly applied by Service personnel
The Department had previously
determined that the proposed policy
was not a significant rule and did not
reqvire a regulatory analysis under
ecutive Order 12044 and 43 Part 14
No significant changes were made in the
final policy that required a new
determination
ACKNOWLEDGEM TS
The primary author of this final policy
is John Christian, Leader, Policy
Group—Environment. U.S Fish and
Wildlife Service, (202) 343—7151. Primary
support for policy development was
provided by policy analysts Nancy Chu.
Scott Cameron. and Peter Ciborowskl;
and Ecological Services Washington
Office and field personnel Manuscript
preparation was accomplished by
Roberta l-hssey, Karen Baker. Carol
Prescott. and Jinethel Baynes.
Accordingly. the mitigation policy of
the U.S. Fish and Wildlife Service is set
forth as follows:
US. FISH AND WILDLIFE SERVICE
MFFIGATION POLICY
L PURPOSE
This document establishes j)olicy for
U.S. Fish and Wildlife Service
recommendations on mitigating the
adverse impacts of land and water
developments on fish, wildlife, their
habitats, and uses thereof. It will help to
assure consistent and effective
reconmiendations by outlining policy for
the levels of mitigation needed and the
various methods for accomplishing
mitigation It will allow Federal action
agencies and private developers to
anticipate Service recommendations and
plan for mitigation measures early, thus
avoiding delays and assuring equal
consideration of fish and wildlife
resources with other project features
and purposes. This policy provides
guidance for Service personnel ut
variations appropriate to individual
Circumstances are permitted.
This policy supersedes the December
18, 1974, policy statement entitled
“Position Paper of the Fish and Wildlife
Service Relative to Losses to Fish and
Wildlife Habitat Caused by Federally
Planned or Constructed Water Resource
Developments” and the Service River
Basin Studies Manual Release 2 350
entitled “General Bureau Policy on River
Basin Studies”
II. AUTHORITY
This policy is established in
accordance with the following major
authorities (See Appendix A for other
authorities
Fish and Wildlife Act of 2958(16
U S C 742(a)—754). This Act authorizes
the development and distribution of fish
and wildlife information to the public.
Congress. and the President, and the
development of policies and procedures
that are necessary and desirable to
carry out the laws relating to fish and
wildlife including (1 take such
steps as may be required for the
development, advancement.
management. conservation, and
protection of the fisheries resources:”
and (2)”... take such steps as may be
required for the development,
management. advancement.
conservation, and protection of wildlife
resources through research. . . and
other means.”
Fish and Wildlife Coordination Act
(16 U.S.C. 661—687(e)). This Act
authorizes the U.S. Fish and Wildlife
Service, National Marine Fisheries
Service (NMFS). and State agencies
responsible for fish and wildlife
resources to investigate all proposed
Federal undetakings and non-Federal
actions needing a Federal permit or
license which would impound. divert.
deepen, or otherwise control or modify a
stream or other body of water and to
make mitigation and enhancement
recommendations to the involved
Federal agency. “Recommendations.
shall be as specific as practicable with
respect to features recommended for
wildlife conservation and development.
lands to be utilized or acquired for such
purposes. the results expected. and shall
describe the damage to wildlife
attributable to the project and the
measures proposed for mitigating or
compensating for these damages.” In
addition, the Act requires that wildlife
conservation be coordinated with other
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‘v-is
U.S. Army Corps of Engineers
Memorandum for See Distribution, “Clean Water Act Section 404 Jurisdiction Over
Isolated Waters in Light of Tabb Lakes v. U.S.,, 1/24/90
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r i c i r
U S Army Cor oI E ”g.rreers
WASHINGTON, DC 20314 1000
REPLY TO
ATTENTION OF
24 JAN 199Q
M 1ORANDUM FOR SEE DISTRIBUTION
SUBJECT: Clean Water Act Section 404 Jurisdiction Over Isolated
Waters in Light of Tabb Lakes v. United States
1. As a result of the Fourth Circuit Court decision in Tabb Lakes
v. United States, the enclosed Corps of Engineers/Environmental
Protection Agency memorandum was developed to provide guidance on
the regulation of isolated waters pending completion of rulemaking
on this subject.
2. Questions or comments concerning this guidance should be
directed to Dr. John Hall (202) 272-0201 or Mr. Lance Wood (202)
272—0035.
FOR THE DIRECTOR OF CIVIL WORKS:
Enc 1
Chi f, Operations, Construction and
Readiness Division
Directorate of Civil Works
C ECW-OR
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S7 4 ,
United States Environmental Protection Agency
United States Department of the Army

SUBJECT: aean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of
Tabb Lakes v. United States
1. On September 22, 1989, in an unpublished opinion, the United States Court of
Appeals for the Fourth Circuit held that the Corps of Engineers may not rely upon
memoranda issued on November 8, 1985, and February 11, 1986, by Brigadier General
Kelly, then Deputy Director of Civil Works, to assert jurisdiction over isolated waters
under section 404 of the ae Water Act. Tabb Lakes v. United States, (No. 89-2905,
4th Cir.). This memorandum provides direction on the continued assertion of
jurisdiction over isolated waters, as required by 33 CFR 328.3(a)(3), in the wake of the
Tabb Lakes decision.
2. Tabb Lakes focused on an EPA and Corps interpretation of the definition of “waters
of the United States” including isolated waters, described at 33 CFR 32&3(a)(3), as
follows:
All other waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use, degradation
or destruction of which could affect interstate or foreign commerce,
including any such waters:
(i) Which are or could be used by interstate or foreign travelers for
recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
(iii) Which are’ used or could be used for industrial purpose by industries
in interstate commerce....
The EPA General Counsel issued guidance on September 12, 1985, interpreting this’
regulation to include isolated waters which are or could be used as habitat by birds
protected by Migratory Bird Treaties, migratory birds which cross state lines, and by
endangered species. Brigadier General Kelly adopted this interpretive guidance in the
Corps guidance memoranda cited above which were the subject of the Tabb Lakes
litigation. In Tabb Lakes, the Court held that the Corps may not rely on this
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interpretive guidance in making a junsdictional determination because the guidance was
a substantive rule that should have been, but was not, proposed for public comment
pnor to its adoption by the agencies. The United States does not intend to appeal the
Fourth Circuit’s Tabb Lakes decision. Instead, the EPA and the Corps intend to
undertake as soon as possible an APA rulemaking process regarding jurisdiction over
isolated waters. This memorandum provides guidance on how Corps FOAs and EPA
Regional Offices should continue to assert CWA jurisdiction over isolated waters in
light of the Court of Appeals decision in Tabb Lakes, and pending completion of the
rulemaking process.
3. The United States believes that the Fourth Circuit’s Tabb Lakes decision was
incorrect and we reserve the right to re-litigate the legal questions decided in the Tabb
Lakes case in other circuits. Because this decision is not binding on courts outside of
the Fourth Circuit, we will not implement the decision outside the area constituting the
Fourth Circuit (i.e., outside the states of South Carolina, North Carolina, Virginia, West
Virginia, and Maryland).
4. Within the Fourth Circuit, we will follow the holding of Tabb Lakes, which was
limited to the procedural notice-and-comment issue discussed above. Thus, within the
Fourth Circuit, we will not rely upon or cite the above-referenced memoranda in
making jurisdictional determinations. However, we will continue to assert jurisdiction,
as required by the “waters of the United States” regulatory definition, over all waters,
the use, degradation or destruction of which could affect interstate or foreign
commerce, as is required by our existing regulations adopted through the Administrative
Procedure Act rulemaking process. Corps FOAs and EPA Regions will apply this
regulatory definition to each site on a case-by-case basis, and will evaluate all available
information in a manner consistent with the language of the regulations and the
expressed Congressional intention that aean Water Act jurisdiction be exercised over
all waters to the fullest extent legally permissible under the Commerce aause of the
Constitution. . -
5. The following applies to CWA jurisdiction over all isolated waters within the Fourth
Circuit. The definition of “waters of the United States” at 33 CFR 322.3(a)(3) was
promulgated through the APA rulemaking process and remains in full force and effect
notwithstanding the Tabb Lakes decision. This definition encompasses “isolated” waters,
including isolated wetlands, since it specifically cites as examples of jurisdictional waters
“...prairie potholes, wet meadows, [ and] playa lakes...”, all of which are normally
“isolated..” We fully intend to implement the Tabb Lakes decision within the Fourth
Circuit; however, we interpret that decision as allowing the Corps and EPA to continue
to assert CWA jurisdiction over isolated waters. Accordingly, we expect Corps FOAs
and EPA Regional offices within the Fourth Circuit to continue to regulate isolated
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waters, including isolated wetlands, as required by existing regulations. Consultation
with your Of ce of Counsel is advisable for doubtful cases.
6. If there are any questions with regards to implementation, Corps Divisions should
contact Mr. Lance Wood (CECC-E, (202) 272-0035) or the Chief Regulatory Branch
(CECW-OR, (202) 272-1785). EPA Regions should contact Mr. Steve Neugeboren
(Office of General Counsel, (202) 382-7703) or Ms. Suzanne Schwartz (Office of
Wetlands Protection, (202) 475.7799).
For the Chief of Engineers: For the Environmental Protection Agency:
____ ________ - / ? O
Q N P. ELMORE at DA G. DAVIS Date
Chi , Operations, Construction, Director
and Readiness Division Office of Wetlands Protection
Directorate of Civil Works
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IV-16
U.S. Army Corps of Engineers
Memorandum for the Field: “Clean Water Act Section 404 Regulatory Programs and
Agricultural Activities” (5/3/90)
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United States Environmental Protection Agency
Officeof Water
Washington, D C. 2C460
\ / United States Department of the Army
Office of the As stant Seaetary
Washington, D.C. 2 lO-01(
3 MAY ; j
MEMORANDUM FOR THE FIELD
SUBJECT: Clean Water Act Section 404 Regulatory Program and A cultural
Activities
A number of questions have recently been raised about the applicability of the
Clean Water Act Section 404 Regulatory Program to agriculture. This memorandum is
intended to assist Section 404 field personnel in responding to those questions and to
assure that the program is implemented in a consistent manner. At the outset, we
should emphasize that we respect and support the underlying purposes of the Clean
Water Act regarding the exemption from Section 404 pennitting requirements for
“normal farming” activities. The exemptions (at Section 404(f) of the Act)
recognize that American agriculture fulfills the vitally important public need for
supplying abundant and affordable food and fiber and it is our intent to assure that the
exemptions are appropriately implemented.
What are normal farming activities? Who makes that determination? Can
agricultural producers plant crops in wetlands areas that have been farmed for many
years? These are questions that have generated significant confusion and concern in
the agricultural community. This memorandum will explain the extent of the Section
404 program and clarify some misunderstandings that may exist in the field. Therefore
we encourage you to widely distribute this memorandum.
What is Sec&in 404?
The Federal Water Pollution Control Act Amendments of 1972 established the
Section 404 Regulatory Program. Under this Act, it is unlawful to discharge dredged or
fill material into waters of the United States without first receiving authorization
(usually a permit) from the Corps, unless the discharge i s covered under an exemption.
The term “waters of the United States” defines the extent of geographic jurisdiction of
the Section 404 program. The term includes such waters as rivers, lakes, streams, tidal
waters, and most wetlands. A discharge of dredged or fill material involves the physical
placement of soil, sand, gravel, dredged material or other such materials into the waters
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of the United States. Section 404(f) exemptions, which were added in 1977, provide
that discharges that are part of normal farming, ranching, and forestry activities
associated with an active and continuous (“ongoing”) farming or forestry operation
generally do not require a Section 404 permit.
With this background in mind, we can now turn to the issues that are the focus
of concern. As previously noted, Section 404(t) exempts discharges of dredged or fill
material into waters of the United States associated with certain normal agricultural
activities. Of course, activities that do not involve a discharge of dredged or fill
material into waters of the United States never require a Section 404 permit. Further,
as provided in the Interagency Federal Manual for Identifying and Delineating
Jurisdictional Wetland , while a site is effectively and legally drained to the extent that
it no longer meets the regulatory wetlands hydrolo criteria (as interpreted by the
Interagency Manual), it is not a wetland subject to jurisdiction under Section 404 of the
Clean Water Act.
What is the “normal farming” activities exemption?
The Clean Water Act exempts from the Section 404 program discharges
associated with normal farming, ranching and forestry activities such as plowing,
cultivating, minor drainage, and harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices (Section 404(f)(1)(A)). To be
exempt, these activities must be part of an established, ongoing operation. For
example, if a farmer has been plowing, planting and harvesting in wetlands, he can
continue to do so without the need for a Section 404 permit, so long as he does not
convert the wetlands to dry land. Activities which convert a wetland which has not
been used for farming or forestry into such uses are not considered part of an
established operation, and are not exempt. For example, the conversion of a
bottomland hardwood wetland to crop production is not exempt.
In determining whether an activity is part of an established operation, several
points need to be considered. First, the specific farming activity need not itself have
been ongoing as long as it is introduced as part of an ongoing farming operation. For
example, if crops have been grown and harvested on a regular basis, the mere addition
or change of a cultivation technique (e.g., discing between crop rows to control weeds
rather than using herbicides) is considered to be part of the established farming
operation. Second, the planting of different agricultural crops as part of an established
rotation (e.g., soybeans to rice) is exempt. Similarly, the rotation of rice and crawfish
production is also exempt (construction of sh ponds is not an exempt activity and is
addressed on page 5 of this memorandum). Third, the resumption of agricultural
production in areas laying fallow as part of a normal rotational cycle are considered to
be part of an established operation and would be exempted under Section 404(f).
2
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However, if a wetland area ha.s not been used for farming for so long that it would
require hydrological modifications (modifications to the surface or groundwater flow)
that would result in a discharge of dredged or Eli material, the farming operation would
no longer be established or ongoing.
As explained earlier, normal farming operations include cultivating, harvesting,
minor drainage, plowing, and seeding. While these terms all have common, everyday
definitions, it is important to recognize that these terms have specific, regulatory
meanings in relation to the Section 404(f) exemptions. For example, plowing that is
exempt under Section 404(f) means all mechanical means of manipulating soil, including
land levelling, to prepare it for the planting of crops. However, grading activities that
would change any area of waters of the United States, including wetlands, into dry land
are not exempt. Minor drainage that is exempt under Section 404(f) is limited to
discharges associated with the continuation of established wetland crop production (e.g.,
building rice levees) or the connection of upland crop drainage facilities to waters of
the United States. In addition, minor drainage also refers to the emergency removal of
blockages that close or constrict existing drainageways used as part of an established
crop production. Minor drainage is defined such that it does not include discharges
associated with the construction of ditches which drain or significantly modify any
wetlands or aquatic areas considered as waters of the United States. Seeding that is
exempt under Section 404(f) includes not only the placement of seeds themselves, but
also the placement of soil beds for seeds or seedlings on established farm or forest
lands. Cultivating under Section 404(f) includes physical methods of soil treatment to
aid and improve the growth, quality, or yield of established crops. Except as provided
under Section 404(f)(2) as explained below, construction or maintenance of irrigation
ditches or maintenance of drainage ditches is also exempt.
Recognizing area and regional differences in normal farming practices, EPA and
the Corps agree to develop additional definitions of normal farming practices in
consultation with the designated Lth d Grant Colleges and the Cooperative Extension
Services. We also further encourage our field staffs to utilize the expertise in these
colleges and agricultural services in the ongoing implementation of the Section 404
program.
When the nor 1 fanning activity exemptions do not apply
Section 404(f)(2) provides that discharges related to activities that change 1 the use
of the waters of the United States, including wetlands, and reduce the reach, or impair
the flow or circulation of waters of the United States are not exempted. This
“recapn.ire” provision involves a two-part test that results in an activity being considered
exempt when both parts are met: 1) does the activity represent a “new use” of the
wetland and, 2) would the activity result in a “reduction in reach/impairment of flow or
3
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circulation’ of waters of the United States? Consequently, any discharge of dredged or
Eli material that results in the destruction of the wetlands character of an area (e.g., its
conversion to uplands due to new or expanded drainage) is considered a change in use
of the waters of the United States, and by defln.ition , a reduction of their reach, and is
not exempt under Section 404(f). In addition, Section 404(0(1) of the Act provides
that discharges that contain toxic pollutants listed under Section 307 are not exempted
and must be permitted.
However, discharges that are not exempt are necessarily prohibited. Non-
exempted discharges must first be authorized either through a general or individual
Section 404 permit before they are initiated.
What are General Permits?
Even if a farming activity is one that does not fall under an exemption and a
permit is required, some farming activities are eligible for General Permits. Section
404(e) of the Act authorizes the Corps, after notice and opportunity for public hearing,
to issue General Permits on a State, regional or nationwide basis for certain categories
of activities involving a discharge of dredged or fill material in waters of the United
States. Such activities must be similar in nature and cause only minimal adverse
environmental effects. Discharges authorized under a General Permit may proceed
without applying to the Corps for an individual permit However, in some
circumstances, conditions associated with a General Permit may require that persons
wishing to discharge under that permit must notify the Corps or other designated State
or local agency before the discharge takes place . A list of current General Permits is
available from each Corps District Office, as well as information regarding notification
requirements or other relevant conditions.
Rice farming
Questions have arisen regarding the relationship of the Section 404 program to
rice farming. We understand these concerns, and recently have initiated actions that
will allow farmers to understand better the regulatory program and provide more
efficient and equitable mechanisms for implementing provisions of the Section 404
program.
In an April 1.9, 1990 letter responding to a request from Senator Patrick J.
Leahy, Chairman, and 11 members of the Senate Committee on Agriculture, Nutrition,
and Forestry, we stated our position that discharges of dredged material associated with
the construction of rice levees for rice farming in wetlands which are in established
agricultural crop production are “normal farming activities” within the meaning of
4
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Section 404(f)(1)(A) and are therefore exempt from Section 404 regulation under the
following conditions:
1) the purpose of these levees is limited to the maintenance and manipulation of
shallow water levels for the production of rice crops; and
2) consistent with current a icultural practices associated with rice cultivation,
- the height of the rice levees should generally not exceed 24 inches above
their base; and
- the material to be discharged for levee construction should generally be
derived exclusively from the distribution of soil immediately adjacent to
the constructed levee.
Land levelling for rice farming in wetlands which are in established crop
production also is a “normal farming activity” within the meaning of Section
404(f)(1)(A) and is therefore exempt from Section 404 regulation.
FLSh ponds
We are developing a General Permit authori. ng discharges of dredged or fill
material associated with the construction of levees and ditches for the construction of
fish ponds in wetlands that were in agricultural crop production prior to December 23,
1985. A draft General Permit has been developed by the Vicksburg District, Army
Corps of Engineers and should be issued by June 1, 1990. This General Permit should
serve as a model permit for other areas of the country and this activity will be
considered for a nationwide Genera] Permit.
It should be made clear, however, that the Section 404(f) exemption for “normal
farming activities” and the General Permit being developed for fish ponds apply only to
the use of wetlands which are already in use for agricultural crop production. These
provisions do not apply to 1) wetlands that were once in use for agricultural crop
production but have lain idle so long that modifications to the hydrologic regime are
necessary to resume crop production or, 2) the conversion of naturally vegetated
wetlands to agriculture, such as the conversion of bottomland hardwood wetlands to
agriculture.
limitations of the Section 404(f) Exemptions
It should be emphasized that the use of Section 404(f) exemptions does not
affect Section 404 jurisdiction. For example, the fact that an activity in wetlands is
5
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exempted as normal farming practices does not authorize the filling of the wetland for
the construction of buildings without a Section 404 permit. Sim 1arly, a Section 404
permit would be required for the discharge of dredged or fill material associated with
draining a wetland area and converting it to dry land.
Enforcement
Given that the normal farming practices as described above are exempt from
regulation under Section 404, neither EPA nor the Corps will initiate enforcement
actions against farmers or other persons for engaging in such normal farming activities.
Further, there will be no enforcement against actions that meet the description of
activities covered by, and any conditions contained in, general permits issued by the
Corps.
Conclusion
Proper implementation of the Section 404 program is an issue of extreme
importance to the nation. We encourage you to distribute this memorandum not only
to your staffs but to the public at large so that there will be a better general
understanding of the program and how it operates. If you have any questions regarding
this memorandum, please contact us or have your staff contact Suzanne Schwartz in
EPA’s Office of Wetlands Protection at 202-475-7799, or John Studt in the
Headquarters’ Office of the U.S. Army Corps of Engineers at 202-272-1785 (temporary
number 202-272-1294).
C ’AL1+tz .$idJ 1
LaJuar JS. Wilcher Robert W. Page
Assistant Adrniithtrator for Water Assistant Secretary of the Army
US. Environmental Protection Agency (C lvi i Works)
6
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IV-17
Environmental Protection Agency\ Region III
“Wetlands Enforcement Strategic Plan”
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Wetlands Enforcement Strategic Plan
Vision Statement
To eliminate existing and prevent future unpermitted
degradation of wetland resources.
Goals
The development and implementation of a coordinated wetlands
enforcement program that:
i. Balances measured value and relative risk of Regional wetland
systems to determine strategic targeting for surveillance and
enforcement efforts;
2. EmphasiZes continued and expanded efforts to forge close
working ties with U.S. Fish and Wildlife Service and Corps of
Engineers field offices through the use of Interagency Agreements
and Field Level Memoranda of Agreement to maximize field presence
and surveillance resources;
3. Utilizes a balancing matrix to weigh factors to determine case
priority and appropriate enforcement response;
4. provides for a streamlined process for handling and tracking
cases once entered into the enforcement system;
5. Promotes education for staff, attorneys, and the public in
general by requiring specific training for all enforcement staff,
providing regular cross-educational opportunities between
technical staff and attorneys, and emphasizing public awareness
opportunities; and
6. Develops and employs an enforcement measurement scheme to
determine program acheivement that recognizes both traditional
and non-traditional enforcement success indicators.
Statement of Reason
Wetland areas are widely recognized as providing important
ecological functions including food production, nestin9, and
cover for a wide variety of aquatic and terrestrial species.
They are also widely recognized as areas that provide valuable
water quality control functions such as nutrient retention and
uptake, stormwater detention/flood control, and sediment control.
Wetlands, however, remain under intense pressure for development
as our population increases. Despite the existence of State and
Federal regulatorY programs to protect these valuable ar’eas, over
500 unauthorized discharges can be expected to occur within
Region III per year based on known cases. Manpower resources do
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administrative or judicial remedy when such a response is
considered appropriate.”
Unsuccessful efforts toward voluntary compliance should
be foll wed by an AO and/or APO and then a referral to
DOJ for civil or criminal litigation.
C. ESD/ORC/COE/FWS Roles arid Relationships
d. Monitoring/Tracking
EPA plans to initiate the development of a computerized
tracking system that will provide a data base consisting
of all permit applications and enforcement actions by
individual, location, watershed, wetlands type, and
acreage.
ASSESSMENT OF PROGRAM’S SUCCESS
1. number of cases
2. ability to determine the acreage of wetlands restored through
enforcement actions by watershed, type of wetland, county,
etc.
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1/ c/,#’, U , ,-, /
(‘4, ’
REGION III WETLANDS ENFORCEMENT STRATEGIC PLAN
(areas of special interest to HQ are highlighted in bold)
PROGRAM OBJECTIVES
1. Development of target surveillance areas
a. Target areas based on resource value
b. Target areas based on risk (areas where unpermitted fills
are common)
2. Development of an enforcement training program
a. six basic courses required for all wetland inspectors
employed by the Agency (including FWS employees acting on
behalf of EPA under lAGs) . Courses are in: basic
inspector training, wetland delineation, photo
interpretation, hydric soils, hydrology, and plant
identification.
b. annual wetland Enforcement Conference involving all
Region III states, Corps District Offices, FWS, and other
interested parties.
3. Increasing networks/visibility
a. FLMOAs with the Corps (dividing lead enforcement
responsibilities based on geographic areas, etc.)
b. lAGs with FWS (FWS acting as field representative,
investigators for EPA)
4. Developing efficient internal enforcement process
a. prioritization
i. qualitative factors - pages 8-9
ii. quantitative factors - page 10
b. enforcement response
“Aside from deterrence, EPA’s major objective in
initiating an enforcement case is to achieve compliance
by having the disturbed wetlands restored to their
pref ill condition. Achieving immediate voluntary
compliance is the primary objective of the lAGs developed
with the FWS, and is generally the first response EPA
will seek when it initially discovers an unauthorized
activity. However, when immediate voluntary restoration
is not achieved, EPA is committed to pursuing an
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Page 2
not exist that can react to each wetland violation that occurs.
Therefore, a strategy is being developed that will make the most
efficient and effective use of these limited resources by
providing an enforcement program that targets highly valuable
systems within defined geographic regions such that a high degree
of deterrence can be achieved.
oad proaram ObiectiVeS
In order to provide an efficient and effective enforcement system
which meets the specified goals, a logical and systematic set of
sequential objectives must be developed. Areas where enforcement
efforts will be focused need to be targeted, an enforcement
training program must be developed, networks must be established
to increase surveillance and the visabilitY of the wetland
enforcement program, and an administrative process for
prioritiZing developing and finalizing cases must be instituted.
3.. DevelOpment of Target surveillance Areas
Targeting specific areas fo concentrated enforcement effort
will be based on several factors which, when considered
holistically, will result in the greatest degree of
environmental protection. t. target areas will be
identified based on resource value. Sr -’ , target areas
will be based on risk, where unauthorized activities are
thought to be widespread (either due to the lack of
enforcement activity in the past or where there are
classes of activities that are resulting in recurrent
unauthorized discharges), where targeted enforcement efforts
would increase compliance rates in these areas. Since
manpower resources are limited, any strategy to maximize
environmental protection must focus its efforts where it
will achieve the greatest result. Therefore, the following
represents how EPA Region III will target its surveillance
efforts.
protection of high quality resources is a keystone of the
enforcement strategy. However, focusing surveillance efforts
strictly in areas of the Region that have been identified as
significant from a resource base would not necessarily be
the most efficient utilization of the Region’s limited
resources. Precisely because these areas are considered of
exceptional value, there are multiple agencies at the State
and Federal level that are regulating these areas, and there
are a multitude of environmental groups concerned that these
areas are protected. surveillance efforts, therefore, must
also focus en high quality but less recognized areas, where
the lack of enforcement activity to date has resulted in a
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Page 3
large num.ber of unauthorized activities, and where increased
Federal enforcement activity, increased networks of public
and private entities involved in wetland protection, and an
increased public outreach effort will deter others from
violating the Clean Water Act. Similarly, enforcement
surveillance can and should be concentrated in areas where
common classes of activities have been found to result in
unauthorized discharges, and where selected enforcement
efforts will be communicated throughout the network of
concern, resulting in higher compliance rates within the
area. It should be recognized that target areas will
be fluid, but will be guided by the above considerations.
Therefore, a survey has been developed (Attachment 1) which
will be circulated to State and Federal resource agencies
throughout the Region to assess which high quality watershed
areas are considered to be threatened by unauthorized
discharges. A matrix (Table 1) has also been developed
which will serve as a guide in determining which geographic
areas should be targeted for pronounced surveil].ence effort,
greater networking, and greater public outreach efforts in
the region in FY 93. These areas, which will be reevaluated
yearly, will be specified in a supplement to this document.
This will prevent this strategy from becoming outdated as
new areas are identified or as old areas are deleted, and
will maintain confidentiality over our surveillance areas.
This surveillence, in addition to reported violations
received from other agencies and the public, will serve as
the base from which cases will be developed in the region.
Prior to the development and finalization of these target
areas, EPA will continue to focus its efforts as defined in
existing Field Level Memorandum of Agreements (FLMOAs) and
Interagency Agreements (lAGs) with the Corps of Engineers
and the U.S. Fish and Wildlife Service (Attachment 2).
Revisions to these agreements will be negotiated as
appropriate after the targeting study is completed.
2. Development of an Enforcement Training Program
One of the keys to a successful enforcement program is
having inspectors who understand the Federal wetlands
statutes, regulations, and policies; who are technically and
administratiVely competent; and who can perform their duties
in a consistent and professional manner. Therefore, a
training program is proposed, beginning with a set of six
basic courses required for all wetland enforcement
inspectors employed by the Agency (including Fish and
Wildlife Service personnel acting on behalf of EPA under an
Interagency Agreement). These six courses are basic
inspector training, wetland delineation, photo
interpretation, hydric soils, hydrology, and wetland
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WETLAND SURVEILLANCE MATRIX
Resource Value
High
Moderate
L)W
5econdar
Tertiary
Moderate
Second
Tertiary I Tertiary
High
R
i
S
k
Primary
Primary
Primary
Low
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Page 5
plant identification. Also, because the sharing of
information and experience between technical staff and
attorneys working on wetlands cases is vital, a regularly
scheduled series of brown bag luncheon seminars between
the Wetland Section and the office of Regional Counsel is
also planned to promote a greater understanding of our
respective duties and the technical and legal issues that
shape the program. Also planned is an annual Wetland
Enforcement Conference that would involve all Region III
States, Corps of Engineers District Offices, Fish and
Wildlife Offices, and other interested parties. This
conference would focus on enforcement policies and
procedures, the legal and technical complexities involved in
the program, and the roles and responsibilities of the
various agencies in an effort to increase the consistency
and the effectiveness of the wetland enforcement actions
taken by the relevant authorities.
Basic course requirements can be satisfied through modules
that have been developed by EPA, the Corps of Engineers, the
Fish and wildlife Service, or the Soil Conservation Service;
or through courses provided by local colleges and/or
universities in these subject areas. Completion of basic
courses will determine the level of responsibility assigned
to individual employees as well as the level of supervision
necessary during case development. No employee will be
assigned complete responsibility for case development until
these basic requirements have been satisfied. New employees
will also be accompanied by senior inspectors on a minimum
of five site inspections to provide guidance and support,
and will continue to be accompanied until basic coursework
has been completed.
3. IncreaSing NetworkS/ViSabilitY
Adequate surveillerice across Region III cannot be achieved
with existing manpower resources in the Agency. Therefore,
FLMOA’s with the Corps of Engineers to designate areas of
lead responsibility, lAG’s with the U.S. Fish and Wildlife
Service for field level support, and greater public outreach
efforts will be employed.
The January 19, 1989 Memorandum of Agreement (MOA) between
EPA and the Department of the Army concerning enforcement
encourages the development of FLMOA’s to increase the
efficiency and effectiveness of their respective programs.
Region III supports this method of designating respective
roles and areas of lead enforcement responsibility between
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Page 6
the Corps and EPA. FLMOA’S have been instituted between
Region III and the Philadelphia, Pittsburgh, and Baltimore
Corps Districts, and another is pending with the Norfo]k
District. These FL MOA’S will be continued but may be
modified pending the outcome of the targeting study
referenced above. Copies of these FLZ’tOA’S are found in
Attachment 2.
The development of Interagency Agreements with the U.S.
Fish and Wildlife Service to act as EPA’S field
representatives has also been an extremely valuable tool for
increasing the Agency’s surveillence efforts. Through the
develop ent of such agreements with the State College,
pennsylvania and Annapolis, Maryland field offices, Region
III has increased its field surveillence and enforcement
response capabilities in Pennsylvania, Delaware, and
Maryland (areas where EPA has been given lead enforcement
responsibility pursuant to the referenced FLZ4OA’s). These
lAG’s designate the role of the Service in acting on EPA’S
behalf, and model letters have been developed which are used
at various stages of enforcement response. Greater detail
will be provided below in Section 4C regarding these roles
and relationshiPS. Copies of existing lAG’S are found in
Attachment 2. Future lAG’s may be developed with other
field offices or existing IAG’s modified pending the outcome
of the targeting study referenced above and any resultant
changes that may be made to the FLMOA’S.
A program that would increase public awareness of the
regulatory program, increase public recognition of wetland
values, and foster the development of a wetland watch
movement will be undertaken to maximize surveillence
efforts. Press releases, fact sheets, and brochures
describing the wetland program will be utilized. Mailing
lists of known environmental organizations will be compiled
in our target areas, and colloq iiUmS will be scheduled
around the region to develop this network.
4. DeveloDifl E fiCieflt Internal Enforcement PrOcesse
A. PrioritizatiOn
More violations will be discovered than can be handled due
to the lack of manpower. Therefore, a model has been
developed to determine which cases will receive priority
attention and to determine the appropriate level of response
(direct to Corps of Engineers or appropriate State agency
for action, issuance of an Administrative penalty and/or
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Page 7
Administrative Order, Civil Referral, Criminal Referral).
Factors such as environmental impact (based on system value,
size, sensitivity), the degree of culpability/recalcitrance
of the violator, and deterrence value are weighed in
establishing case priàrity and response option. Qualitative
(Table 2) and quantitative (Table 3) measures have been
developed to assist in guiding these decisions. Factors
listed in EPA’s penalty guidance and in the EPA/Army
enforcement priority guidance have been utilized in
developing these measures.
B. Enforcement Response
Aside from deterrence, EPA’S major objective in initiating
an enforcement case is to acheive compliance by having the
disturbed wetlands restored to their pref ill condition.
AcheiVing immediate voluntary compliance is the primary
objective of the Inte genCy Agreements developed with the
U.S. Fish and Wildlife Service, and is generally the first
response that EPA will seek when it initially discovers an
unauthorized activity. However, when immediate voluntary
restoration is not achieved, EPA is committed to pursuing
administrative or judicial remedy when such a resçonse is
considered appropriate. Unsuccessful efforts toward
achieving voluntary compliance will generally be followed by
an Administrative Order for Compliance and/or an
Administrative Penalty Complaint depending on the specific
nature of the violation. These actions, again depending on
specific circumstances, will generally be followed by
referrels to the Department of Justice for civil or criminal
litigation. Both the quantitative and qualitative measures
described under the prioritization section above, as well as
discussion with appropriate legal counsel, should occur
before any decision to proceed judicially is made.
C. ESD/ORC/COE/FWS Roles and Relationshi S
The Environmental Services Division (ESD) within Region III
is the lead agent for initiating and developing
administrative or judicial action on EPA’S behalf with
regard to section 404 violationS. Cases will only be
pursued in areas designated by the FLMOA’S unless they are
specifically requested from the Corps of Engineers pursuant
to the national MOA between EPA and Army, or are referred to
EPA from the Corps. The Office of Regional Counsel (ORC)
will as i3t ESD in case development once cases are referred
to ORC for administrative action, and will work with ESD in
developing case strategy and providing advice to ESD on all
legal matters pertaining to the case. Field operations will
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TLAND8 I?0RCV !NT CPiS! 8CR!ENING WORXSEEET ’
cJ Date:
D ft’ Nam. of violator:
Address of Viol&tOrZ
D..Criptiofl of Violation
other parties:
Qther ZnforCe eDt ActiOfl S
j e t Threat
ongoing __________
pending _________
Completed
vironmefltal Impacts
Size (approx.) acres
Type ____________
priority Watershed/1nd 5tr’Y
Isolated
In Headwaters
Endangered Species (list)
Function/Value:
Nature of violator
Repeat Violator
Knowing Violator
Recalcitrant
Other Enforcement Actions:
‘This is a pre dsCiSi0fl document protected b the
deliberative process and attorneY work product privileges (and may
also be a privileged attorfleY.Clie! t communicatiofl) conclusiOns
or recommendations are intended sole.ly as preliminarY information
for government, persOflflSl• This worksheet contains tentative
conclusiOnS and staff’level recommendations and does not create any
rights, substantive or procedural or defenses, as they are not
binding Ofl the Agency or the Department of Justice.
-------
Effort vs Results:
Chance of Success:
InflUS u
citizen Suit
congressional Involvement
Public Concern
Agency Support
Ptterr.nCe Va1u
Explain:
Multi-media -
Proqrams
Effectiveness of Past Actions:
criminal Enforcement Discussed -
Recommended for Tier 2 Screening
Program Contact_____________ ORC contact
Reviewed by:_ Date:_______
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ENFORCEMENT PRIORITY QUANTIFICATION
10
Resource Value
High Low
10 __ 1
Area Affected - -
lOAcres+ <1.acre
10 __ __ 1
Culpability - __-__——— - —
Repeat/knowing Unknowing
404(b)1
Noncompliance Compliance
10 1
Deterrence Value --— ----- __—
High Low
High Priority 30-50
Moderate Priority 14-29
Low Priority 5-13
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Page 1].
be carried out or directed by tSD (in cases where the U.S.
Fish and Wildlife Service (FWS) is involved through the
referenced lAG’s). ORC will generally direct any desired
field action by FWS through the ESD inspector assigned to
the case. Similarly, contacts with opposing Counsel will
generally be carried out by CRC or as recommended by ORC.
ESD and ORC will maintain open communication on cases to
assure that each office is kept current on case development,
and to assure that appropriate case development steps are
taken in a timely fashion. Scheduled monthly docket
meetings will be attended by staff from both ORC and ESD who
are involved with the cases to be discussed. Work
assignments may be made at the docket meeting, as well as
timelineS for completing each assignment.
Pursuant to the lAG’s with FWS referenced above, FWS may act
as EPA’S representative in initial field investigations.
FWS will investigate reported violations and will determine
whether a violation has occurred through accepted techniques
for establishing jurisdiction, quantify the extent of the
violation, assess the impact of the action on the
environment, assess the culpability of the violator, and
negotiate for voluntary compliance (i.e. complete
restoration) with the responsible party when violations have
been found to occur. As directed in. the lAG, FWS will
document all actions taken regarding jurisdictional
determinations, impacts, and compliance efforts undertaken,
as each violation may ultimately be subject to EPA
administrative action or litigation. The FWS role will be
limited to acheiving voluntary compliance. Should such
compliance not be forthcoming within a reasonable time
period (30 days from initial contact with the violator), FWS
will refer the case to Region III for possible
administrative action or litigation. Monthly coordination
meetings will be held with FWS to review ongoing and newly
discovered violations. Once cases are referred to EPA, ESD
will be the lead agent. All subsequent actions by FWS will
be at the direction of ESD or ORC through ESD.
A wetland enfc’ ment process flow chart depicting how a
case is normally handled within EPA is seen in Figure 1.
D. Monitorifla/Trackifla
A tracking system is vital to a responsive enforcement
program, and in providing a tool to assess program success.
Compliance deadlines must be monitored and actions must be
taken in a timely fashion. Compliance histories and/or
previous permit histories must be known to assist in the
development of culpability determinations. Moreover, the
-------
L NDS ENF0RCEMENT PROCESS FLOWCHART
CASE - POTENT(AL V OLATO
QEFEPPAL FROtI
PA STAFF, FWS, COE.
TAlES. PUBLIC
;ASE RECEIVED BY
.NFO CEMENT CCC D
‘ STAFF
ASE REFERRED TO I
EPA STAFF CR _____
APPROPRIATE LEAD I
AGENCY (FWS.COE) j
EPA STAFF
TIAL IVESTIGATICH -
) DETERMINE VIOLATIC*’
ILE REVIEW, FIELD INVES)
NC
2 ’
/
\ /
\/
YES
YALUATE u ,ENLY
) VlC .ATICH
JTNO
\
/\
/REScLuTIo ”>
\\\ //
‘
I
YES
I
I
—
APP LEAD AG
£
C TIcN
[ IF A 0 3N ’
ADMIN PENALTIE
PuRSUE CRITIINAL\
INVEST!GATIC 1 j
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Page 13
ability to track the number of cases that occur over time,
and the ability to determine the acreages of wetlands
restored through enforcement action by watershed, type of
wetland, county, etc. will assist in the assessment of the
enforcement program’s success. Ideally, should problem
areas be accurately identified through the targeting study
referenced above, a successful enforcement program will find
a large number of cases initially, with the resultant
protection of high quality wetland resources, and over time
through the deterent effect of the enforcement cases brought
forward, there will be fewer unauthorized activities within
the targeted geographic area.
For these reasons, a logging system will be kept by the
Enforcement Coordinator as an initial step in tracking
compliance deadlines. Inspectors will be kept apprised of
all milestones and appropriate actions will be expeditiously
taken in response. As a next step, Region III will initiate
the development of a computerized tracking system that will
provide a database consisting of all permit applications and
enforcement actions by individual, location, watershed,
wetland type, and acreage. This database will be able to be
manipulated to provide statistical data that can be used to
evaluate program success and compliance histories of
individual violators. Finally, once the targeting study
referenced above is completed, Region III will investigate
the possibility of undertaking a limited trends analysis
utilizing photo interpretation to assess the types and
acreage of wetlands that are being lost over time, and to
determine if these losses are the result of unauthorized
activites, or through actions permitted by the Corps of
Engineers.
Specific F? 93 mp ementatiOn Obiective5
1. This plan will be finalized in the first quarter.
2. The targeting survey will be distributed to State and Federal
Resource agencies regarding identification of high risk
watersheds during the 2nd quarter. Results will be analyzed
in the 3rd quarter, reconuneridatiOnS will be made during the
3rd quarter, and the initiation of FLMOA revisions will occur
in the 4th quarter.
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Page 14
3. A training schedule will be develJ eL. A delineation course,
a wetland plants course, a hydriC soils course, a wetland
hydrology course, and a photo interpretation course will be
set up during the year. The basic inspectors course will also
be offered during FY93. Three 2—hour modules will be
developed by ESD for brown bag luncheon presentations
regarding topics of interest to ORe. Similarly, three 2-hour
modules will be developed by ORC regarding topics of interest
to ESD. These SiX brown bag luncheons will be scheduled
during the year. Finally, a conference regarding wetland
enforcement will be developed and held during the year for all
State and Federal resource agencies in the Region.
4. An outreach program will be initiated and colloquiums will be
held in each state during the year to develop grass roots
support for the wetlands program and to foster a wetland watch
network.
5. The Norfolk FLMOA will be finalized.
6. The number of administrative actions will be increased. The
issuance of ten Penalty Complaints and forty Administrative
Order will be set as the goal for FY 93.
7. A tracking system for public notices, permits, and
enforcement actions that includes information on watershed
location, acreage impacted or restored, names of
applicants/ViolatOrsi etc. will be proposed, and avenues for
implementation ide’t.fied for presentation to higher
management for funding. This system will provide information
useful to the determination of culpability, and will be
designed to permit the evaluation of program success by
showing violation trends by number, location, watershed, and
acreage on both a microscale or macroscale level of
comparison.
pecific FY 94 ImplementatiOn OblectiVeS
1. Target areas will be finalized through the appropriate
revisions to existing EPA/COE FLNOA’S.
2. Subject to the availability of funding, a computerized
tracking system will be initiated. Based upon the final design
of the system, a specific plan for measuring program success
will be finalized based upon the conceptual outline discussed
above. -
3. An aerial reconnasairice program/trends analysis will be
developed for 1 target area, and submitted to higher
-------
Page 15
manage eflt for funding. This analysis will survey all wetland
losses ocurring in the identified target area and determine
whether these losses were the result of permitt d or -
unpermitted activity through the utilization of the database
created above.
4. Public outreach efforts initiated in FY 93 will be continued.
5. Training efforts, including brownbag luncheons and a regional
enforcement conference, will be continued.
6. Continued increases in the use of administrative actions will
be made, focusing on identified target areas.
pecific FY 95 ImplementatiOn Oblectives
1. Public outreach, training, enforcement actions, and tracking
efforts will be continued per the existing strategy.
2. A report will be developed describing program success or
failure. This report will form the basis of modifying the
strategic plan as appropriate and setting forth specific
program objectives for Fl 96 and beyond.
-------
c7.7
Environmental Protection Agency
Wetlands Fact Sheets
-------
EPA Wetlands Fact Sheets
of Contents,
Questions about
404? Many relate to
Swampbuster.
see fact sheet # 19
_oo
Unsure of what wetlands
information you need or
where to find it?
Call EPA Wetlands Hotline *
at 1-800-832-7828
What is a wetland
and how are they
identified?
see fact sheet
What assistance
is available to
private land-
owners? see fact
sheets # 17, 30
9
Beaver
0
For a complete Table
see next page
Cranes
Was the Clean
Water Act really
intended to
protect wetlands?
see fact sheet # 10
Mallard Ducks
* contractor operated
Printed on Recycled Paper
-------
Table of Contents
fact sheet
Introductory Information
Wetlands l rotection - Overview I
Values and Functions of Wetlands 2
Consequences of Wetlands Loss and Degradation 3
Economic Benefits of Wetlands 4
Facts About Wetlands 5
Wetland Quotes 6
Regulatory Information - - Section 404
Clean Water Act Section 404:Overview 7
Clean Water Act Section 404: Permits 8
Definition and Delineation 9
Was the 404 Program Intended to Regulate 10
Wetlands?
Clean Water Act Section 404(q): Case Specific 11
Elevation
Clean Water Act Section 404(c): Veto Authority 12
Wetlands Enforcement 13
Wetlands Mitigation Banking 14
Wetlands Categorization 15
What About Takings? 16
Wetland Acquisition and Restoration: 17
Sources of Funding and Technical Assistance
Section 404 Regulatory Program: Issues 18
and Examples
Agriculture and Wetlands: Section 404 and 19
Swampbuster
Clean Water Act Section 404(f) Exemptions 20
State and Local Programs
State, Tribal, Local and Regional Roles in 21
Wetlands Protection
State Wetlands Grants Program 22
State Assumption of Section 404 23
401 Certification and Wetlands 24
Wetlands and Runoff 25
continued
Printed on Recycled Paper
-------
Table of Contents
continued
fact sheet
Planning and Partnerships
Wetlands and Watersheds 26
What is a State Wetland Conservation Plan? 27
Advance Identification (ADID) 28
EPA’s Outreach Efforts 29
Partnerships with Landowners 30
Contacts for More Information
Environmental Protection Agency: Directory 3 l
Corps of Engineers Regulatory Program 32
Directory
Printed on Recycled Paper
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United States
Environmental Protection
Agency
Office of Water (WH-556F),
Office of Wetlands, Oceans,
arid Watersheds (A-104 F)
EPA WETLANDS FACTSHEET# 1
Wetlands Protection - Overview
Over the past few years,
the issue of wetlands pxotec-
tion seems to come up every-
where you turn. It’s in the news-
papers and on T.V. and radio
news and talk shows.
Why all the fuss?
Wetlands are, by defi-
nition, transitional areas be-
tween open water and dry land.
The “natural” values of these
wet areas have historically com-
peted with their value as “dry”
land where they can be. con-
verted for other purposes such
as developments or agriculture.
Thewatermay
not be on the
surface all the
time, making it
hard to “know
it when you see
it.”
However,
wetlands are generally ex-
tremely valuable and produc-
Reprinted with permission from Jerry L. Barnett, The Indianapolis News
tive ecosystems. They are
(
Egret
home to many beautiful and
rare species. They are the
source of many commercially
and recreationally valu-
able species of fish,
shellfish and wildlife.
They retain flood wa-
ters and protect shore-
lines from erosion.
Wetlands filter runoff
and adjacent surface
waters to protect the quality of
our lakes, bays and rivers. Wet-
lands also protect many
of our sources of drink-
ing water. And wet-
lands provide varied
recreational opportuni-
ties throughout the
country.
EPA knows that there
is confusion about wet-
lands and programs
that protect them.
This collection of fact
sheets is designed to offer some
basic information about wet-
lands and the programs that
affect them. If you would like
more information, please con-
tact the sources identified
within. And remember, the
EPA WETLANDS HOTLINE*
is there for everyone at:
1-800-832-7828
EPAa- : .F-;2-oc
Marcn 9;3
Reprinted with permission. Danziger in The Christian Sdence Monitor . 1991 TCSPS
contractor operated
Printed on Re c1ed Paper
-------
United States
Environmental Protection
Agency
Othce of Water (WH-556F),
Office of Wetlands, Oceans.
and Watersheds (A-104 F)
EPAB43-F-93-OO o
Marcn 1993
EPA WETLANDS FACT SHEET # 2
Values and Functions of Wetlands
In their natural condition, wetlands often provide many benefits, including food and habitat
for fish and wildlife,flood protection, shoreline erosion control, natural products for human
use, water quality improvement, and opportunities for recreation, education and research.
Products
Altogether, wetlands are among the most
biologically productive natural ecosystems in
the world, comparable to tropical rain forests
and coral reefs in the number and diversity of
species that they support. Wetlands produce
great volumes of food as leaves and stems break
down in the water to form detritus. This en-
riched material is the principal food for many
aquatic invertebrates (including shellfish) and
forage fish that are food for larger commercial
and recreational fish species such as bluefish
and striped bass.
Wetlands are critical habitat to the
survival of numerous threatened
and endangered species
Wetlands are critical to the survival of a
wide variety of animals and plants, including
numerous threatened and endangered species
like the wood stork, Florida panther, whooping
crane, and bald eagle. For many species such as
the wood duck, muskrat and swamp rose, wet-
lands are primary habitats. For others, wetlands
provide important seasonal habitats where food,
water and cover are plentiful
Wetlands produce a wealth of natural
products, including fish and shellfish, wildlife,
timber, wild rice, and furs. Much of the Nation’s
fishing and sheilfishing industry harvests wet-
lands-dependent species. For example, in the
Southeast, 96 percent of the commercial catch
and over 50 percent of the recreational harvest
are fish and shellfish that depend on the estu-
ary-coastal wetlands system. Waterfowl hunt-
ers spend over $300 million annually in pursuit
of wetlands-dependent birds
Services
Wetlands often function like natural tubs,
storing either floodwater that overflows
riverbanks or surface water that collects in iso-
lated depressions. By doing so, wetlands help
protect adjacent and downstream property from
flood damage. Trees and other wetland vegeta-
tion help slow the speed of floodwaters. This
action, combined with water storage, can lower
flood heights and reduce the water’s erosive
potential. In agncultural areas, wetlands can
help reduce the likelihood of flood damage to
crops. Wetlands within and upstream of urban
areas are especially valuable for flood protec-
tion, since urban development increases the rate
and volume of surface water runoff, thereby
increasing the risk of flood damage. Some wet-
lands also help recharge ground water supplies
and help maintain base stream flows dunng
times of drought.
Often located between rivers and high
ground, wetlands buffer shorelines against ero-
sion. These wetlands bind soil, dampen wave
action, and reduce current velocity through fric-
tion.
Wetlands can help maintain and im-
prove waterquality by intercepting surface water
runoff before it reaches open water, removing
or retaining nutrients, processing organic wastes,
and reducing sediment loads to receiving wa-
ters Such runoff represents the most prevalent
cause of degradation of our nations surface
waters today (1990 Water Quality Inventory)
Wetlands provide endless opportunities
for popular recreational activities such as hik-
ing, bird watching, fishing and boating An
estimated 50 million people spend nearly $10
billion each year observing and photographing
wetlands-dependent birds
For more information, contact the EPA Wetlands Hotline at 1-800-832-7S28 *
* contractor operated
Printed on Recycled P.zper
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Unitec States
Office ci Water (WH 536F), EPA2-i.3-F-;3-c
Environmental Protection Office of Wetlands, Oceans, Marcn 1993
A9ency
and Watersheds (A-104 F)
EPA WETLANDS FACT SHEET# 3
Consequences of Wetland
Loss and Degradation
The loss or degradation of wetlands can lead to serious consequences, including increased
flooding; species decline, extinction or deformity; and decline in water quality. The
following are a few examples of the consequences of wetlands loss and degradation.
SPECIES DECLINE
Populations of mallardand northern pin-
tail ducks in North America have declined since
1955 (see graph).
The loss and deg-
radation of wet-
lands is one of the
major causes for
the decline in cer-
tain waterfowl
populations. For
example, in the
U.S. prairies in
1990, mallard
duck popula-
tions reached
their lowest re-
corded number.
The well-being of
waterfowl popu-
lations is tied di-
rectly to the sta-
tus and abundance of wetland habitats. Water-
fowl populations have reached record lows in
recent years. Simply said, as wetlands go, so go
waterfowl.
SPECIES DEFORMITY
Wetlands in the Kesterson National
Wildlife Refuge in California’s Central Valley’
were degraded after being continuously flooded
with agricultural imgation return flow waters
that contained high concentrations of selenium.
Large-mouth and stnped bass and catfish dis-
appeared from Kesterson National Wildlife Ref-
uge in 1982 In the spnng of 1983, eggs from
water birds at the site hatched less frequently
and had more deformities in the embryos. Cost
estimates for the refuge cleanup and restoration
of its wetlands now exceed $5 billion.
FLOODING
Based on a study comparing parts of the
Charles River in Massachusetts with and with-
____________________ out wetlands, it was
determined that the
loss of 8,422 acres of
wetlands within the
Charles River Basin
would have pro-
duced an annual
flood damage of
over $17 million.
For this reason, the
US Army Corps of
Engineers elected to
preserve wetlands
rather than con-
struct extensive
flood control facili-
ties for this portion
of the Charles River
near Boston.
WATER QUALITY
Forested riparian (streamside) wetlands
play an important role in reducing nutnent
loading into water bodies such as the Chesa-
peake Bay. In one study, a nparian forest in a
predominantly agricultural watershed was
shown to remove approximately 80% of the
phosphorus and 89% of the nitrogen from the
water before entering a tributary of the Chesa-
peake Bay. Destruction of wetlands that reduce
the amount of nutrients entering the Bay would
lead to an increase of undesirable weed growth
and algae blooms When these algal blooms
decompose, large amounts of oxygen are used
up, depriving fish and other aquatic organisms
of the oxygen needed forsurvival. Algal bloor s
are a major cause of fish kills
For more information, contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
12000
10000
8000
6000
4000
2000
0
Decline in Duck Populations: 1955 -1991
Source Office of Migratory Bird Management Population
Assessment Section, USFWS
Printed on Recycled Paper
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Ur’rtec Stat s
Office of Water NH-55 ’ F ,
E -.
Envirorirne ta Protection
Office of We a cs, Ccea s,
Marc i
;g3
Agency
arid Watersheds (A-104 F)
EPA
Wetlands contribute to the National
economy through the resources/commodities
they produce and the services they provide.
In 1991, the dockside value of fish landed in the
U.S. was $3.3 billion which served as the basis
of a $26.8 billion fishery processing and sales
industry which employs hundreds of thousands
of people. It has been estimated that 71% of this
value is derived from fish species that during
their lifecycle depend directly
or indirectly on coastal wet-
lands. Also, more than half of
all U.S. adults (98 million
Americans) hunt, fish,
birdwatch or photograph
wildlife. These activities
which rely on wetlands added
an estimated $59.5 billion to
the Nation’s economy in 1991.
Due to the diversity of
wetland types and their loca-
tion, each wetland provides
different products and ser-
vices. This fact makes it ex-
tremely difficult to measure the total eco-
nomic benefits all wetlands, or a particular type,
provide for the entire nation. However, some
site-specific studies have been completed that
illustrate the ecoi omic benefits to society of
preserving wetlands. It should be remembered
that these studies usually measure only one or
several of the many functions or values wet-
lands provide to society.
Resources and Services
Water quality service/ improvement:
The wetlands of the Congaree Bottomland Hard-
wood Swamp in South Carolina provide valu-
able water quality functions such as sediment
removal as well as toxicant and excess nutrient
removal or filtration. The least cost substitute
for the water quality services provided would
be a water treatment plant costing $5 million
[ 1990$].
For More Information: call the EPA
Wetlands Hotline* at 1-800-832-7828
WETLANDS FACT SHEET # 4
Economic Benefits of Wetlands
Flood control: The Minnesota Depart-
ment of Natural Resources has computed the
cost to replace on average each acre-foot of flood
water storage at $300. In other other words, if
development eliminates a one acre wetland that
naturally holds 12 inches of water storage dur-
ing a storm, it would cost the public $300 to
replace that water storage. The cost to replace
the 5,000 acres of wetlands lost annually in
Minnesota would be S1.5
million [ 1990$].
Fishing Industry: Wet-
lands are important spawn-
ing and nursery areas and
provide plant food for com-
mercial and recreational fish
—- . and shellfish industries.
Louisiana’s marshes, for ex-
ample, produce an annual
commercial fish and shellfish
harvest of 1.2 billion pounds
worth $244 million in 1991.
Michigan: A 1977 study
estimated that Michigan’s
over-100,000 acres of coastal wetlands produced
an economic value of $489.69 per acre or an
aggregate $51.8 million [ 1977$]. This figure
measured the individual services provided by
the wetlands (see chart below).
Economic value of wetland services in Michigan (1977)
I. ’
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300
250
200
150
100
50
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Untea States
Environmental Protection
Agency
Orfce of Water WH-556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA WETLANDS FACT SHEET #
Facts About Wetlands
• Over half (53%) of the wetlands in the conterminous United States were lost between
the late-1700’s and mid-1970’s. About 100
million acres of wetlands remain today.
Source: Dahl Status and Trends of Wetlands in the Conterrninous
United States USFWS, 1989
Amount of Wetlands in the
Conterminous United States
since the late 1700’s
53% Lost
• Coastal wetlands make up only 5% of the
wetland types in the continental United
States; inland wetlands such as freshwater
swamps, prairie potholes, bogs and fens make
up the remaining 95% of wetland types.
Source: Office of Technology Assessment, 1984
• It has been estimated that up to forty-three percent (43%) of the threatened and
endangered species listed in the United States by the U. S. Fish and Wildlife Service rely
directly or indirectly on wetlands for their survival.
Source: USFWS
Source: Dahi. 1989 47% Remain
A recent survey showed that when asked whether they felt wetlands protection efforts
were adequate, 53% of respondents replied more effort was needed, 24% said current
efforts struck the right balance, and 8% said
Is Current Wetlands Protection Adaquate?
it had gone too far.
I
Source: Times Mirror Magazines/Roper Survey as cited in Popular 1
Science July 1992, P• 52 • I 4, 53%
t I
20


I J
‘ - ;:
• From the mid-1970’s to mid-1980’s, wetlands ________
were lost at an annual rate of 290,000 acres
per year.
Source: Dahl and Johnson Status and Trends of Wetlands in the
Conterroinous United States, Mid-1970s to Mld-1980’s USFWS,
• Nationally, 80% of America’s breeding bird population require bottomland hard-
woods for survival; bottomland hardwood (BLH) systems are wooded
swamps found predominantly in the Southeastern United States.
Source: Warton and Kitchens, 1982.
• In the United States, over-logging of mature bottomland hardwood
(BLH) forests is believed to have caused the extinction of the Ivory-
Billed Woodpecker, North America’s largest woodpecker.
Source: Harris and Gosselink, Ecological Processes and Cumulative Impacts . p.308.
Ivory-Billed Woodpecker
1991.
EP 43-F-9:-oo’ a
March 1993
5
•
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More Facts About Wetlands
Twenty-two States have lost at least 50% of their original wetlands. Seven of those
twenty-three States (California, Indiana, illinois, Iowa, Missouri, Kentucky, and Ohio)
have lost more than 80% of their original wetlands.
Source: DahI, 1990
STATES WITH OVER 50% WETLAND LOSS
Source: Dahi, 1990
• In Fiscal Year 1992, the Army Corps of Engineers made decisions on over 16,000
individual permit applications, denying fewer than 400. It is estimated that at least
80,000 additional activities are authorized by Corps general permits yearly. In the 21-
year history of the Section 404 program, EPA has vetoed only 11 permits.
Source: US Army Corps of En neers, US EPA
• Approximately 92% of all permit evaluations (that is both general and individual
permits) are completed in less than 60 days after a completed application has been
received by the Army Corps of Engineers.
Source: US Army Corps of Engineers
For more information contact the EPA Wetlands Hotline at i-SOO-s32-7 28 %
* contractor operated
‘nnted on Rec-vcled Paper
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United States
Environmental Protection
Agency
Office ot Water (WH-556F),
Office of Wetlands, Oceans
and Watersheds (A.104 F)
EPAa43-F-;3 OO
March 1993
EPA WETLANDS FACT SHEET # 6
Wetland Quotes
I
Jj 1 jL/ o ) S,i ’5r(’i
Vera Ijeac A FL 3 q 4 j
J naory ,ç , i i
P, ,1, I-/ecidq uac 1er5
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/Y
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Wa hj 3 fon)DIC. LO(oLf O
L ear £ vr-ohmehF//s/j
/ / v ,() /v7 , / , 3/5 1 7T) £ I
fJiird’ code a 5ec AJ cI 5cAe’dv
rnakc icx ci det i( P yc’u ca save
a/ I p 4 1 1 -he eX 5t t /1 we(leitids I’J/
y 2fle7 l v help , ‘t%i do / F. 4nd
yoii kiiow more -1 h ,‘ o Ji
depend ‘ he we /O/7c/ , 5 o
ii a ye I-he e -i , os, ?/ecis
Your ie’ h
L - i ree,i
Greater familiarity with marshes on the part of more people could give man a truer and more
wholesome view of himself in relation to Nature. In marshes, Life’s undercurrents and un-
knowns and evolutionary changes are exemplified with a high degree of independence from
human dominance as long as the marshes remain in marshy condition. They have their own life-
rich genuineness and reflect forces that are much older, much more permanent, and much
mightier than man. - Paul L. Errington, Of Men and Marshes
continued on back
*
-
t
4;4
+
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Wetland Quotes Continued...
In a green place lanced through
With amber and gold and blue - -
A place of water and weeds,
and roses pinker than dawn
And ranks of lush young reeds
And grasses straightly withdrawn
From graven ripples of sands.
The still blue heron stands.
-“The Blue Heron’ by Theodore
Goodridge Roberts
It e R4 Iv.
AU J f ;SW&I# t t
lc ‘ So h 1 4 4 .ik 1
Pa f f kr Iw
yr . h fwt ny irA
h .
Qc
/ .m ba .. qtl u
A habitat is where it’s at.
Keep them so the ducks can quack,
The marshes filter the water’s dirt,
They’re homes for many who we don’t
want hurt.
Save The Wetlands
A dawn wind stirs on the great marsh. With almost imperceptible slowness, it
rolls a bank of fog across the wild morass. Like the white ghost of a glacier, the
mists advance, riding over phalanxes of tamarack, sliding across bog meadows
heavy with dew. A single silence hangs from horizon to horizon.
-Aldo Leopold, A Sand County Almanac
For More Information: contact the EPA Wetlands Hotline* at 1 -800-832-7828
— —— - —. —-—---— Otter
contractor operated
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Ur cc 3 ,aes
Env rcnrnentaI Protection
Agency
cc c S5 F,,
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
WETLANDS FACT SHEET #7
Marcn 1993
Clean Water Act §404: Overview
Section 404 of the Clean Water Act estab-
lishes a program to regulate the discharge of
dredged and fill material into waters of the United
States, including wetlands Activities in waters
that are typically regulated under Section 404
include fills for development, water resource
projects (e g., dams and levees), infrastructure
development (e.g., highways and airports), and
conversion of wetlands to uplands for farming
and forestry
BACKGROUND
Since its enactment by Congress in 1972, Sec-
tion 404 of the Clean Water Act (33 U.S C § 1344)
has evolved through a series of statutory amend-
ments, regulatory changes and key court deci-
sions into the primary Federal regulatory pro-
gram providing protection for the Nation’s re-
maining wetlands. EPA and the Army Corps of
Engineers (Corps) jointly administer the Section
404 program In addition, the U S Fish and
AGENQE$’ RESPONSIBILmES
ARMY CORPS OF ENGINEERS
• day-to-day program administration
(e g including individual permit decisions
and jurisdictional determinations)
• development of policy and guidance
• enforcement
ENVIRONMENTAL PROTECTION AGENCY
• develop and interpret the environmental criteria
used in evaluating permit applications
(i e, the Section 404(b)(1) Guidelines)
• determine the scope of geographic junsdiction
• approve and oversee State assumption
of the programs administrative responsibilities
• identify activities that are exempt under §404( 1)
• review and comment on individual permit appli-
cations
• §404(c) authority to eto Corps’ permit decisions
• §4O4(q) case specific elevation
• enforcement
Wildlife Service, the National Marine Fishenes
Service, and State resource agencies have impor-
tant advisory roles.
PROGRAM REQUIREMENTS
The basic premise of the Section 404 program
is that no discharge of dredged or fill material can
be permitted if there is a practicable alternative
that is less damaging to the aquatic environment
or if the discharge would result in significant
degradation of our Nations waters.
I
In addition, applicants are required to minimize
potential impacts to wetlands, and finally to pro-
vide compensation for any remammg unavoid-
able impacts through wetland restoration or cre-
ation activities
For projects involving potentially significant
impacts, authorization must usually be sought
through an “individual permit” review process
However, for the great majority of discharges, i e.,
those activities that will have only minimal ad-
verse environmental effects, authorization is of-
ten granted up-front through “general permits”
General permits may be issued by the Corps on a
nationwide, regional or State basis for particular
categories of activities (e.g., minor road crossings,
utility line backfill, and bedding) as a means of
expediting the permitting process Moreover,
Section 404(f) exempts other activities from regu-
lation under Section 404, including many on-go-
ing farming, ranching and silviculture practices
At)DmONAL MATERIAL:
U 1-iighbghtsof Section 404,” EPA Office
of Wetlands Protection, October, 1939.
FOR MORE INFORMkTION call the EPA Wetlands l Eotline* at. 1 8OO-832-7S2&,..
An applicant must demonstrate that
steps have been taken to avoid wet-
land impacts where it is practicable.
contractor operated
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Eiviconr erta! Prc 1 ecton
Agency
c c c , ‘,a r-’
C ce c; We crcs Ccaa s,
and Watersnecs (A-104 F)
Permit required fof discharges oi itredged or fill material
to wetlands and other waters of the United States
Pertnitapplicati.on fiied with the U.S. Army Corps of Engineers
Corps Issues Public Notice
Within 15 daysof receivingall permitinlormation. the Corps will issue
a public notice that gives a brief description of the proposed activity,
its location, potential environmental impacts, a deadline for receiving
written comments, and the address for the agency receiving those
comments
Comment Period
The application is reviewed by the Corps and other interested Federal
and State agenoes, organizations, and individuals The comment
penod can take 15 to3Odavsdepend±ngupon the natureof theactivttv
The necessity to gather information and prepare an Environmental
impact Statement (E1S) may further extend the comment period
Public Hearing
Normally, the Corps does not hold a public hearing on a permit,
however, citizens may request that one be held The Corps will use the
testimony presented at the hearing in its permit review
Corps Evaluation
The Corps e aluaics the permit application based on its regulations
(the Public lnter t Rcviev ), and the §404 (b)(i) Guidelines
Environmental Assessment
and Statement of Finding
For every permit decision, the Corps prep.ires a statement of finding
that explains how the permit decision was made This document is
public information and can provide data to assist in monitoring
permit compliance or re-evaluating a permit
Permit Issued
Permit Denied
Mo ..hf ed from Kathleen ifude cunser atton You Can Make Difference, Dncks Un(,nni
Septcmbcr/000bcr 1990 26-28
TYPES OF §404 PERMITS
SECTION 404(a)
INDIVIDUAL PERMITS
Case-by-case review
• Public interest review and compliance
with the Section 404(b)( 1) Guidelines, which
are regulations issued by EPA, with the Corps
Guidelines requirements include.
• Mitigation sequence
(1) avoidance of impacts through practi-
cable alternatives,
(2) minimization of impacts, arid
(3) compensation of unavoidable impacts
through creation or restoration
• No significant degradation.
• Compliance with other laws
SECTION 404(e)
GENERAL PERMiTS
The Corps of Engineers has the authority to
issue general permits for those categones of
activities in wetlands and other aquatic areas
that will have only minimal adverse environ-
mental effects--individuaUy orcumulati ely
2 General permits are w delv used and speed
up the §404 permitting process because they
do not require a detailed, case-specific re-
view
2 General permits are issued on a nation-
wide, regional, and State basis
If an activity falls under a nationwide per-
mit, a discharger generally (but not al-
ways) can proceed with the activity with-
out first applying for an individual permit
Individuals should contact their local Corps
Districts for applicability of general per-
m its
FOR MORE INFORMATION: call the EPA
WETLANDS FACT SHEET #8
Clean Water Act §404: Permits
THE §404 INDIVIDUAL PERMIT PROCESS
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United States
Environmental Protection
Agency
Office of Water (WH-556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
I
March 1993
-_____________________
&EPA WETLANDS FACT SHEET #
Definition and Delineation
Since the 1970’s, the U.S. Army Corps of
Engineers (Corps) and the U.S. Environmental
Protection Agency (EPA) have used the same
definition of wetlands for regulatory purposes
Wetlands are areas that are inundated or satu-
rated by surface or ground water at a frequency
and duration sufficient to support, and that under
normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated
soil conditions. Wetlands generally include
swamps, marshes, bogs and similar areas.
Basically, wetlands are areas where the
frequent and prolonged presence of water at or
near the soil surface drives the natural system -
the kind of soils that form and the plants that
grow, and the fish and/or wildlife communities
that use the habitat Swamps, marshes and bogs
are well-recognized types of wetlands, but there
are many important specific wetland types, such
as vernal pools, playas and prairie potholes, that
have drier or more variable water regimes than
those well-recognized by the general public.
Field Indicators
When the upper part of the soil is satu-
rated with water at growing season tempera-
tures, soil organisms consume the oxygen in the
soil, and conditions unsuitable for most plants
quickly develop. Such conditions also cause the
development of soil characteristics (e g, color
and texture) that are diagnostic of so called
“hydnc soils”. The plants that can grow in such
conditionsarecalled’hydrophytes’(e g.,marsh
grasses) Together, hydric soils and hydrophytes
9
The actual presence or absence of water
itself (i.e., by ponding, flooding, or soil satura-
tion), however, is a less reliable indicator of the
presence of wetlands. Except for wetlands
flooded by ocean tides, the hydrology of wet-
lands fluctuates as a result of rainfall patterns,
snowmelt, dry seasons and droughts Some of
the most well-known wetlands, such as the Ev-
erglades and Mississippi bottomland hardwood
swamps, are often dry Conversely, many up-
land areas are very wet during and shortly after
wet weather Such natural fluctuations must be
taken into account when identifying areas sub-
ject to federal wetlands jurisdiction Similarly,
the effects of upstream dams, drainage ditches,
dikes, irrigation and other modifications must
also be considered
Delineation Manual
EPA and the Corps are currently using
the 1987 Corps of Engineers Wetlands Delinea-
tion Manual to delineate wetlands for the Clean
Water Act Section 404 permit program Section
404 requires a permit from the Corps or autho-
rized State for the discharge of dredged or fill
material into the waters of the United States,
including wetlands The 1987 Manual will re-
main in use pending review of public comments
on the 1991 proposed Manual and the ongoing
National Academy of Sciences study of wet-
lands delineation.
The 1987 manual organizes field indica-
tors into three categones- soils, vegetation, and
hydrology- and has evidence thresholds, or cri-
tena, for each category With this approach, an
area that meets all three criteria is considered a
wetland.
Definition are useful field indicators of the presence of
wetlands and are essential for field identifica-
tion of wetlands
FOR MORE INFORMATION Call the EPA
Wetlands Hotline* at 1 -800-832-7828
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United S aes
E-wrcrimentai Prc ecton
Agency
Crfice o Wa.e- Y’ H- 56F;,
C ’ilce ci Wetlands Oceans,
and Watersneds (A-ic -i F)
:0
.ia’c- g;T
EPA WETLANDS FACT SHEET #10
Was the 404 Program Intended to
Regulate Wetlands?
The History
In 1972, Congress passed the Federal
Water Pollution Control Act Amendments “to
restore and maintain the chemical, physical,
and biological integrity” of the Nation’s waters
The Act defined “navigable waters” as “waters
of the United States.” The legislative history
made plain that Congress intended the broadest
possible Federal jurisdiction, expanding beyond
traditionally navigable waters.
However, when the U.S Army Corps of
Engineers (Corps) issued regulations to imple-
ment the Section 404 program in 1974, it limited
the program’s jurisdiction to traditionally navi-
gable waters, including adjacent wetlands, but
excluding many small waterways and most
wetlands. In 1975, a federal distriCt court di-
rected the Corps to revise and expand its regu-
lations to be consistent with Congressional in-
tent.
In response, the Corps issued interim
final regulations to include waters that are not
adjacent to navigable waters (“isolated waters’)
in the program’s jurisdiction. In 1977, the Corps
issued final regulations and explicitly included
“isolated wetlands and lakes, intermittent
streams, prairie potholes, and other waters that
are not part of a tnbutary system to interstate
waters or to navigable waters of the United
States, the degradation or destruction of which
could affect interstate commerce” The defini-
tion promulgated in 1977 is substantially the
same as the one in effect today
What Has Congress Done?
When Congress amend ed the Act in 1977,
it was aware of the Corps recent assertion of
fact extensively debated In the end, Congress
rejected attempts to narrow the scope of that
jurisdiction, in large part because of concern
that to do so would unduly hamper protection
of wetlands Other 1977 amendments, such as
the Section 404(f) exemptions, general permit-
ting authonty, and the provision for State as-
sumption of the 404 program in some waters,
responded to concerns regarding this scope of
jurisdiction In providing for State assumption,
Congress made specific reference to wetlands in
the Act itself.
What Has the Supreme
Court Said?
Regarding the issue of jurisdiction for
wetlands adjacent to rivers, lakes, streams, estu-
aries, etc., the Supreme Court has unanimously
held that the Corps acted reasonably in inter-
preting the Act’s geographic jurisdiction to ex-
tend to wetlands adjacent to other “waters of the
U S ,“ even if those wetlands are saturated only
by ground water sources (as opposed to surface
water flooding) However, the Supreme Court
has not yet ruled on the issue of non-adjacent,
isolated wetland jurisdiction
FOR MORE INFORMATION: Call the EPA
Wetlands Hotllne* at 1-800-832-7828.
EPA and the Corps of Engineers
have identified examples of waters
generally not considered waters of the
United States. These examples include
nontidal drainage and irrigation
ditches excavated on dry land, artifi-
cially irrigated areas which would
revert to upland if the irrigation ceased,
and certain artificial lakes or ponds
created on dry land.
jurisdiction over wetlands This issue was in
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EPA
Urirtec States
Environmental Protection
Agency
THE §404 (q) PROCESS
Resolution of interagency disputes related to §4 4 permit iseuance
Based on the 1992 §4 04 (q) Memorandum of Agreemeat MOA)
iigned by EPA and, the ‘Department of the Army
EPA Objection
Formal determination that issuan of the §404 permit will result in
unacceptable adverse effects to Aquatic Resources of National Impor-
tance (ARNI)
Notice of InteM to Proceed
Corps District Engineer must notify the EPA Regional Administrator
if he intends to issue the permit over EPA objections The Regional
Administrator has 15 days to respond to the request
Case Elevation
The EPA Regional Administrator makes a recommendation to EPAs
Assistant Administrator for Water to elevate the case The Assistant
Administrator reviews the recommendation and within 20days makes
a determination
Decline Further Elevation
Review of Corps Decision
The Assistant Administrator seeks higher level review of the Distnct
permit decision by the Assistant Secretary of the Army (Civil Works)
Army Declines ElevationS
Army Review
EPA Headquarters case elevation is reviewed by the Assistant Secre-
tary of the Army (Civil Works), who determines whether or not the
decision will be made at a higher level than the Corps District Engineer
or to issue case specific policy gwdance
FOR MORE INFORMA11ON call the EPA Wetlands Hofline* at 1-800-832-7828
LJIICO 01 a 1 /1
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
( ,.)
Marcri 1993
WETLANDS FACT SHEET #11
Clean Water Act §404(q):
Case Specific Elevation
Under §404 of the Clean Water Act, the
U S. Army Corps of Engineers (Corps) has
the primary authority for determining
whether or not a permit for the discharge of
dredged or fill material should be issued. In
making a permit decision, the Corps solicits
and considers the views of the public as well
as State and Federal resource agencies.
Where the Corps finds that the particular
project in question is likely to receive a §404
permit and EPA opposes issuance of the
permit, administrative procedures are avail-
able to EPA to address unresolved issues.
The principal mechanism for reso-
lution of interagency disputes related to
§404 permit issuance is spelled out in the
§404(q) Memorandum of Agreement (MOA)
signed by EPA and the Department of the
Army in August of 1992. Under the §404(q)
I lurtherActionljnwarrantect MOA, EPA and Army have
I ’ agreed to a framework under
which EPA may formally el-
evate, for higher level review, interagency
disputes on particular permit actions. In
order to minimize duplication of effort,
needless paperwork and delays in the issu-
ance of §404 permits, a clear timeframe and
process for elevated review of a Corps per-
mit decision is established in the
______________ _________ §404(q) MOA
In addition to the case spe-
cific elevation authorities contained in the
Section 404(q) MOA, issues related to gen-
eral program policies and procedures may
be formally raised by either the Corps or
EPA. This type of elevation does not di-
rectly relate to permit specific cir-
cumstances and therefore does not
delay issuance of pending permit
applications.
Since the I9flMOA was signed one case baa
been elevated by EPA to the Department of the
Arrn y. Prior to that case, from, Octoberof 1985
until the August 1992 revisions to the MOA.
EPA formally elevated I 6 ctases to Army Head-
quarters.
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Wetlands Criminal Enforcement
Since enactment of the Clean Water Act,
EPA and the Corps have taken fewer than 20
cnminal enforcement actions in response to Sec-
tion 404 violations. Moreover, of those found
guilty of cnrninal Section 404 violations, fewer
than 10 of these violators have actually been
sentenced to jail time As demonstrated by the
following examples, EPA and the Corps reserve
their crumnal enforcement authonty for only
the most flagrant and egregious Section 404
violations
United States v. Pozsgai
In December 1989, a Philadelphia jury
convicted John Pozsgai on 40 counts of know-
ingly filling wetlands in Bucks County, Pennsyl-
vania, without a Section 404 permit Mr. Pozsgai
was sentenced to three years in jail, ordered to
restore the site upon his release, and assessed a
fine. His conviction and sentence have been
affirmed by the U S. Supreme Court.
Even prior to purchasing the 14-acre tract
in 1987, Mr. Pozsgai was told by private consult-
ants that the site contained wetlands subject to
the permitting requirements of Section 404. He
purchased the property at a reduced pnce due to
the presence of wetlands, and then proceeded to
ignore no less than 10 warnings from EPA and
Corps field staff to stop filling the wetlands
without first getting a Section 404 permit He
also defied a temporary restraining order (TRO)
issued by a Federal court judge In fact, the
government documented violations of the TRO
on videotape, thanks to thecooperation of neigh-
bors whose homes were being flooded as a result
of Mr Pozsgai’s filling in his wetlands
United States v. Ellen
InJanuarv 1991, William Ellen was fourd
guilty by a Maryland jury of knowingly filling 86
acres of wetlands without a Section 404 permit
He was sentenced to six months in jail and one
year supervised release The U S Supreme Court
denied review of the conviction and sentence
Mr. Ellen is a consultant who was hired
by Paul Tudor Jones to assist in the location and
creation of a private hunting club and wildlife
preserve on Maryland’s Eastern Shore With
Mr. Ellen’s assistance, Jones selected a 3,000-
acre site in Dorchester County that bordered
Chesapeake Bay tributanes and consisted largely
of forested wetlands and tidal marshes As
project manager, Mr Ellen was responsible for
acquinng environmental permits and comply-
ing with all applicable environmental rules and
regulations His own consulting engineers re-
peatedly told him that a Section 404 permit
would be required. Nevertheless, he supervised
extensive excavation and construction work
destroying wetlands at the site without first
obtaining a Section 404 permit Despite repeated
warnings to Mr Ellen from the Corps, this
unpermitted activity did not stop until the Corps
contacted the subcontractors directly
For more information: contact the EPA Wetlands Hotline* at 1-800-832-7828
‘contractor operaled
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,EPA
v ia v ,r-jC’i
Ohice ot Wetlanos Ocears Marcn 1993
and Watersheds (A-104 F)
BACKGROUND
Wetlands mitigation banking is the resto-
ration, creation, enhancement, or in certain cir-
cumstances, preservation of wetlands expressly
for the purpose of providing compensation in
advance of proposed or future wetland impacts
A wetlands mitigation bank is created when a
government agency, corporation or non-profit or-
ganLzatlon, under a formal agreement, acquires a
long-term interest in a degraded wetland or an
appropriate upland area and restores or creates
the site into a functional wetland ecosystem. The
value of a bank is determined by quantifying the
wetland values restored or created in terms of
“credits,” which may later be utilized to compen-
sate for wetland losses, or “debits,” associated
with a permitted discharge. Banking has the
potential to play a significant role in the Section
404 regulatory program by reducing uncertainty
and delays for qualified projects, especially when
the project is associated with a comprehensive
resource planning effort Agencies have received
comments noting both benefits and concerns about
mitigation banking, some of which are noted be-
low.
BENEFITS
With mitigation banking, compensatory
mitigation can be implemented and functioning
in advance of project impacts, thereby assuring
the success of compensation In addition, it elimi-
nates the temporal losses of aquatic functions and
values that typically occur when the compensa-
tion is intia ted during or after the time wetlands
impacts occur.
In addition, consolidation of mitigation
for impacts to numerous small, isolated or frag-
mented habitats into a single large parcel is often
more ecologically advantageous for maintarning
the integrity of the aquatic ecosystem
Development of a mitigation bank can
also bnng together financial resources, as well as
planning and scientific expertise not generally
practical for individual mitigation proposals,
thereby increasing the likelihood of success
CONCERNS/ISSUES
A pnmary concern with the use of mitiga-
tion banking in the Section 404 regulatory pro-
gram is that establishment of a bank may be
wrongfully construed as direct or implied autho-
rization of specific projects, regardless of the
avoidability of wetland impacts assoaated with
the proposed project Implementation of a bank-
ing agreement involves substantial admmistra-
tive and legal complexities. Moreover, the scien-
tific and technical expertise for creation and resto-
ration is limited for some wetland types.
STATUS
The 1990 EPA/Army Memorandum of
Agreement (MOA) on Mitigation identifies miti-
gation banking as “an acceptable form of compen-
satory mitigation under specific criteria designed
to ensure an environmentally successful bank.”
Approximately 100 mitigation banks are in opera-
tion or are proposed for construction in 34 States
across the country.
ADDITIONAL MATERIAL:
R “Mitigation Banking,” Fish and Wildlife Service Biological Report B8(4D, July 19 8.
FOR MORE INFORMATION: call the EPA Wetlands Hotline at 1-800-832-782& ‘ ‘
Cs
Environmental Protection
Agency
WETLANDS FACT SHEET #14
Wetlands Mifigation Bank ig
‘contractor operated
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‘e ’ .a P’c;ec’cn
Agerc’/
.ce c ‘ . ‘Ai’.arcs Ccears
and Wa;ers-acs A- 04 F;
WETLANDS’ FACT SHEET #12
Clean Water Act §404(c):
Veto Authority
- THE §404 (c) PROCESS
Section 404(c) of the Clean Water Act gives EPA the authority to “veto”
apcrnuf if the dishargeof dredgcdot fiI [ matierial wilihave nnacceptabie
adverse effects on he quatic or wetland ecosystem
Public Notice
Intent to Issue
EPA Regional Administrator states his/her intention to issue a public notice of
a Proposed Determination to withdraw, prohibit. deny, or restnct the specifica-
tion of a defined area for the disposal of dredged or fill material
Proposed Determination
Publication of Notice
If within Sdays, it has not been demonstrated to the satisfaction of the Regional
Administrator that no unacceptable adverse effects will occur, the Regional
Administrator publishes notice of the Proposed Determination The Proposed
Determination does not represent a judgment that discharges of dredged or fill
material will result in unacceptable adverse effects, it merely means that the
Regional Administrator believes that the issue should be explored
Public Comment Period
The public comment period for the Proposed Determinabon is longer than 30
days and less than 60 days. except under circumstances where a [ 
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Env ronmentaI Protection
Agency
In addition to jointly implementing the
Clean Water Act Section 404 program, EPA and
the U.S. Army Corps of Engineers (Corps) share
Section 404 enforcement authority. There are two
broad categories of Section 404 violations:
• failure to comply with the terms or
conditions of a Section 404 permit
• discharging dredged or fill material
to waters of the U.S. without first
obtaining a permit
In 1989, EPA and the Corps entered into a Memo-
randum of Agreement (MOA) on enforcement to
ensure efficient and effective implementation of
this shared authority. Under the MOA, the Corps,
as the Federal permitting agency, has the lead on
Corps-issued permit violation cases. For
unpermitted discharge cases, EPA and the Corps
determine the appropriate lead agency based on
criteria in the MOA.
ENFORCEMENT GOALS & TOOLS
The goals of EPA’s Section 404
enforcement are three-fold: environ-
mental protection; deterrence; and fair
and equitable treatment of the regu-
lated community. In addition to vol-
untary compliance, which plays an im-
portant role in the Section 404 enforce-
ment program, Sections 309 and 404 of
the Clean Water Act provide the agen-
cies with several formal enforcement
mechanisms to use in achieving these
goals.
In the administrative arena, un-
der Section 309(a), EPA can issue ad-
ministrative compliance orders requir-
ing a violator to stop any ongoing ille-
gal discharge activity and, where ap-
propriate, to remove the illegal dis-
charge and otherwise restore the site.
Section 309(g) authorizes EPA and the
Corps to assess administrative civil
penalties of no more than $125,000 per
violation.
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0
160
140
120
100.
80.
60.
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20.
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Oflice of Weflanas, Oceans,
and Watersheds (A-i 04 F)
Marcn ;;3
Turning to judicial enforcement, Sections
309(b) and (d) and 404(s) give EPA and the Corps
the authority to pursue civil judicial enforcerpent
actions seeking restoration and other types of
injunctive relief, as well as civil penalties. The
agencies also have authority under Section 309(c)
to bring criminal judicial enforcement actions for
knowing or negligent violations of Section 404.
CASE SELECTION
EPA and the Corps consider a wide vari-
ety of factors when deciding whether to exercise
our enforcement discretion and, if so, what type of
enforcement action to initiate. These factors in-
clude: the amount of fifi; the size of the waterbody,
including acres of wetlands filled and their envi-
ronmental significance; the discharger’s previous
experience with Section 404 requirements and the
discharger’s compliance history.
In general, EPA and the Corps prefer to
resolve Section 404 violations through voluntary
compliance or administrative enforcement.
EPA Section 404 enforcement actions (initiated)
FOR MORE INFORMATION: call the EPA.Weflands.Hofline ati 8OO 832 7828
EPA
WETLANDS FACT SHEET #13
Wetlands Enforcement
1990 1991 1992
Fiscal Year
‘contractor operated
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United States
Environmental Protection
Agency
Office cf Wate WH-556F;,
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EFAa43-F-;3-oo
March 193
WETLANDS FACT SHEET #15
Wetlands Categorization
There has been interest over many years
in revising the Section 404 regulatory program
to base decisions more on the relative values of
wetlands as determined in advance based on
the type or condition of the wetland. In re-
sponse, several approaches have been proposed
to classify or “categorize” wetlands based on
their relative value, with commensurate levels
of regulatory protection assigned to each wet-
land category.
Issues
Categorization proponents believe wet-
lands regulation would be improved by focus-
ing agency resources on protection of the most
valuable wetlands, by providing greater consis-
tency and predictability in the permit review
process, and by reducing regulatory burden for
activities in lower value wetlands. However,
some have raised concerns that a hierarchical
approach to wetlands protection may result in
“writing off” low value wetlands and increas-
ing the potential for wetlands “takings” claims
for high value wetlands. Additional concerns
include the inadequacy of objective methods
for identifying and evaluating wetland func-
tions and values, and the increased reliance that
some approaches place on mitigation techniques
(i.e., wetland restoration and creation), which
are still relatively new and unproven. State
experience also indicates that categorization pro-
grams require substantial time and financial
resources to implement.
Current Status
Wetland values are currently assessed
on a case-by-case basis in the Section 404 permit
review process. The.level of review an indi-
vidual permit application receives is commen-
surate with the significance of the environmen-
tal impact, considering both the relative value of
the wetland the impacts of the proposed
activity. For many in the regulated community,
however, such an approach does not provide
sufficient predictability and certainty. Efforts in
the mid-1980’s to categorize wetlands nation-
ally were abandoned because of scientific un-
certainties. A number of States (most notably,
New York, Maine, Vermont, and Delaware) have
applied or are considering a categorization ap-
proach within their wetlands protection pro-
grams. Alternatively, some states are establish-
ing wetland categories as they incorporate wet-
lands into their Water Quality Standards pro-
gram. Categorization has worked most effec-
tively in the context of local or regional water-
shed planning initiatives where the relative
value of wetlands within the context of a par-
ticular watershed can be more accurately as-
sessed.
For
Wet
more information: call the E PA
lands Hotline* at 1-800-832-7828.
EPA
contractor operated
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United States
Environmental Protection
Agency
Office of Water (WH-556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA8 i3-F 93-QOIP
March 1993
3EPA WETLANDS FACT SHEET #16
What About Takings?
The Issue : When does a government action affecting private
property amount to a “taking,” and what are the takings
implications of wetlands regulation?
Background
The Fifth Amendment prohibits the tak-
ing of private property by the government for a
public use without payment of just compensa-
tion. A body of law has been established by the
Supreme Court (and
lower courts) that is
used to determine
when government ac-
tions affecting use of
private property
amount to a “taking”
of that property by the
government. When
private property is
“taken” by the gov-
ernment, the prop-
erty owner must be
fairly compensated.
Initially, the courts recognized takings
claims based on governmental action that re-
sulted in a physical seizure or occupation of
private property. The courts subsequently ruled
that, in certain limited circumstances, govern-
ment regulation affecting private property also
may amount to a taking.
In reviewing these “regulatory” takings
cases, the courts generally apply a balancing
test, and examine the character of the
government’s action and its effect on the
property’s economic value. Government ac-
tions for the purpose of protecting public health
and safety, including many types of actions for
environmental protection, generally will not
constitute takings. The courts also look at the
extent to which the governments action inter-
feres with the reasonable, investment-backed
expectations of the property owner.
In the recent Lucas decision ( Lucas v
South Carolina Coastal Council) , the U. S. Su-
preme Court ruled that a State regulation that
deprives a property owner of ll economically
beneficial use of that property can be a taking.
However, even then a regulation will result
in a taking if the regulation is consistent with
‘restrictions that background principles of the
State’s law of property
and nuisance already
place upon land own-
ership ” Some com-
mentators have stated
that the Lucas ruling
is nQ.t likely to have a
significant effect on
environmental regula-
tion, because it is ex-
plicitly limited to
those relatively rare
situations where the
government action de-
flies Jj economically beneficial use of the prop-
erty.
Current Status
The presence of wetlands does not mean
that a property owner cannot undertake any
activity on the property. In fact, wetlands regu-
lation under Section 404 does not necessarily
even result in a restriction on use of the site For
example, many activities are either not regu-
lated at all, explicitly exempted from regulation,
or authorized under general permits Moreover,
in situations where individual permits are re-
quired, the Federal agencies can work with per-
mit applicants to design projects that meet the
requirements of the law and protect the environ-
ment and public safety, while accomplishing the
legitimate individual objectives and protecting
the property rights of the applicant Overall,
more than 95 percent of all projects are autho-
rized
The Fifth Amendment
to the Constitution of the
United States of America
No person shall...be deprived of...property
without due process of law, nor shall
private property be taken for public use,
without just compensation.
For more information, contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
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Uruted States
Envircnmerttal Protection
Agency
Office of Wa:ar WH-55 F)
Office of Wetlanos Oceans,
and Watershecs (A-104 F)
EFAa 3-F-e3-co ’ C
Marcn 19g3
EPA WETLANDS FACT SHEET #17
Wetland Acquisition and Restoration:
Funding and Technical Assistance
Seventy-four percent of the remaining wetlands
in the contiguous United States are located on pri-
vate property. As stewards of the land, pnvate
property owners have a tremendous opportunity to
safeguard the Nation’s wetlands resources through
wise land-use decisions. Many Federal, State, and
local programs as well as private and non-profit
organizations offer cost-sharing, technical, and often
direct payment assistance to pnvate landowners to
protect, restore, and create wetlands. Much of the
information and funding involves agricultural-re-
lated activities in wetlands, however, ample resources
also exist for landowners who engage in other activi-
ties Options for pnvate landowners include land
banks, transferrable development rights, deed re-
strictions, easements to conservation organizations-
-all of which can provide tax breaks—and leases of
rights to hunt, fish, harvest timber, and trap fur-
bearing animals on the property.
The EPA Wetlands Hotline, staffed by a contract-
ing company, can provide you with more informa-
tion about the agencies and program requirements
discussed in this fact sheet, as well as publications
and regional contacts in your area. In addition, your
local Soil Conservation Service office or County Ex-
tension Agent may know of additional State and
local programs.
Governmental Assistance
The U. S. Department of Agriculture (USDA) supports
many sources of assistance for wetland acquisition and
restoration through several offices’
The Agncultural Stabikzation and Conservation Service
( ASCS ) oversees programs such as the Agricultural Res-
toration Program (ARP), the Wetland Reserve Program
(WRP), the Water Bank Program, and the Agricultural
Conservation Program (ACP)
Con tact USDA ASCS, Conservation and
Environmental Protection Division, P. 0 Box 2415,
Washington, DC 20013.
The U S Forest Service (USFS) administers the Forestry
Incentives Program (FIP), the Stewardship incentives Pro-
gram (SIP), and the Forest Legacy Program.
Contact USDA USFS, Cooperative Forestry Staff,
Auditor’s Building, 201 14th St , SW,
Washington, DC 20250
The Farmers Home Administration (FmHA ) provides debt
reduction assistance on FmHA loans in exchange for con-
servation easements
•Contact USDA FmHA, Roorri 5449,
Washington, DC 20250-0700
The U. S. Department of the Interior (USD0!) helps pri-
vatelandowners through the U S Fish and WildlifeServ ice
( USFWS ) These programs include Partners for Wildlife
(Private Lands Assistance and Restoration Program), and
the North American Waterfowl Management Plan
(NAWMP) Joint Ventures
•Contact: USD0!, USFWS, North American
Waterfowl and Wetlands Office, 4401 N Fairfax Dr,
Arlington, VA 22203
The U. S. Environmental Protection Agency (US EPA),
through its Office of Wetlands. Oceans, and Watersheds.
Wetlands Division and the contractor-operated Wetlands
Hotline offers information on current EPA wetland conser-
vation, acquisition, and restoration initiatives
•Contact. US EPA, OWOW, Wetlands Division
(A-104 F), 401 M St , SW, Washington, DC 20460
Private/Non-Profit Assistance
in the private sector, Ducks Unlimited administers the
MARSH (Matching Aid to Restore States Habitat) Program
•Contad: MARSH Program Coordinator, 1155
Connecticut Aye, NW, #800, Washington, DC 20036
The Nature Conservancy provides help through the Natu-
ral Areas Registry
•Contad: 2 Wisconsin Aye,
Chevy Chase, MD 20815
The Izaak Walton League offers the Partners for Wetlands
program
•Contact: 1401 Wilson Bvd, Level B,
Arlington, VA 22209
Private Land Trusts assist landowners in acquiring and
restoring wetlands using a master planning process to
select a variety of programs based on the landowner’s
resource needs, goals, and opportunities
•Trust for Public Lands 312 Massachusetts Aye,
Washington, DC 20002
•Land Trust Alliance 900 17th St, NW,
Washington, DC 20006
•American Farmland Trust 1920 N St, NW,
Washington, DC 20036
For more information contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
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EPA WETLANDS FACT SHEET #18
Section 404 Regulatory Program:
Issues and Examples
ISSUES
In recent years, implementation of the
Section 404 regulatory program has received con-
siderable attention In addition to coverage in the
popular press, in late 1991 the Environmental
Protection Subcommittee of the Senate Environ-
ment and Public Works Committee requested
that EPA and the U S. Army Corps of Engineers
(Corps) review 108 cases submitted to the Sub-
committee which allegedly illustrated problems
in implementation of the Sec-
tion 404 regulatory program.
While it would be urimanage-
able to furnish the complete re-
sults of our review, it is useful
to review the type of issues fre-
quently raised. In general, it is
important to note that these
cases often reflected confusion,
misunderstanding, ormisinfor-
mation, rather than problems
with the actual implementation
of the program. In some cases,
it appeared that conimentors
equated the regulation of wetland areas with ad-
vance denial of authorization for any discharge or
activity or the loss of one’s ability to use that
property for any financial return In its most
extreme form, this perception prevented land-
owners from even applyinging for permits which
they believed would never be granted. This is
certainly the most unfortunate misperception re-
vealed in the case examples and simply does not
reflect actual implementation of the Section 404
regulatory program.
ACCURACY OF WETLANDS
DETERMINATIONS
Many case examples raised concerns about
what were believed to be inaccurate determina-
tions of the presence of wetlands on the property
In many of these cases, particularly in areas that
may not be wet year-round, the subject property
did not fit the landowners’ particular perception
of what constitutes a wetland These important
systems, nevertheless, are wetlands, and may be
junsdictional wetlands for the purposes of the
Clean Water Act.
REGULATORY REQUIREMENTS
Certain cases reflected a lack of under-
standing about regulatory requirements for ac-
tivities in wetlands because of different regula-
tory requirements from gov-
ernment agencies, including
State and local requirements.
This concern was particularly
evident in those cases mvolv-
ing farmers potentially affected
by the Swampbuster program
under the Food Secunties Act.
Many cases reflected the fear
that the mere presence of wet-
lands precluded any activity
and rendered the land unus-
able to the landowner.
TIMEFRAMES FOR THE §404
PERMIT PROCESS
Many of the case examples cited perceived
delays in the Section 404 permitting process It is
true that some delays do occur in the Section 404
program. To address this problem, EPA and the
Corps have been working to make the process
n ore efficient, and tQ ensure adequate staffing It
is’ also the case that some delays involve regula-
tory requirements of other State or Federal laws.
Additionally, in many cases the issues of concern
were related to enforcement actions on the part of
the Federal government for unauthonzed dis-
charges or requirements for processing of after-
the-fact permit applications. Because these cases
may involve illegal activities camed out without
required Section 404 permits, resolution of the
issues involved in these cases is, by the very
nature of the circumstances, time consuming and
controversial These circumstances, however, do
not represent normal processing requirements of
the Section 404 regulatory program
,jfl taG
Environmental Protection
Agency
.rC
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
Marcn 1993
...cases often re-
flected confusion,.
misunderstanding
or misinformation,
rather than prob-
lems with the actual
implementation of
the program....
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Section 404 Regulatory Program:
EXAMPLE S
ST. VINCENT DePAUL SOCIETY
HOMELESS SHELTER PARKING LOT
JUNEAU, ALASKA
In this case a farmer in Albion, Illinois,
cleared 3 acres of brush on his farm and straight-
ened a ditch (routine maintenance operations) to
prevent water from ponding on his land. Mr
Lorigbons has stated that he received conflicting
information regarding the regulation of his opera-
tions and that agencies have placed excessive
demands on him by requiring mitigation forditch-
ing activities He is concerned about losing the
right to continue normal farm management prac-
tices
Mr Longbons contacted the Soil Conser-
vation Service to assure the work would be consis-
tent with the Food Securities Act (Farm Bill) The
SCS responded that the work was allowable, but
that he should contact the Corps and EPA to
assure compliance with the Clean Water Act
However, Mr Longbons did not do so
Staff from the Environmental Protection
Agency, the Corps of Engineers, and Congress-
man Pouchard’s office conducted an inspection of
the site TheinspectionshowedthatMr Longbons
had cleared a ditch and 3 acres of bottomland
hardwood forest, and dug a new lateral ditch,
sidecasting the material into the wetlands It
should be noted that maintenance activities for
existing drainage ditches are exempted from the
Section 404 program Mr. Longbons’ clearing of
the old drainage ditch, the major component of
this project, was never regulated However, clear-
ing a bo ttomland hardwood forest, creating a new
lateral ditch, and disposing of materials into wet-
lands are regulated activities Therefore, Mr
Longbons’ actions constituted a violation of Sec-
tiOn 404 of theClean Water Act In light of the facts
of this case, EPA Region 5 recommended to the
Corps that an after-the-fact permit be issued with
a mitigation condition for the loss of the 3 acres of
bottomland hardwood forest The lateral ditch
has been stabilized with perennial grasses Under
the permit, Mr Longbons is able to plant crops in
the cleared area
This anecdote has appeared in several
places, including the Wall Street Journal and Con-
gressional testimony In general, the account
raises concerns regarding alleged delays in the
evaluation of a Section 404 permit application for
a homeless shelter in Juneau, Alaska
The Section 404 permit application was,
in fact, for construction of a parking lot The
public comment penod ended on January 26,
1990, and after interagency discussions, the per-
mit was issued on August 3, 1990
In 1989, the EPA and the Corps of Engi-
neers adopted an Advance Identification plan
identifying wetland areas generally suitable or
unsuitable for fill within the core service area of
the City/Borough of Juneau, Alaska. The Ad-
vance Identification program is designed to pro-
vide information to the regulated public of the
suitability of proposed discharges into designated
wetland areas The area targeted by the St Vincent
DePaul Society for future development was clas-
sified as “generally unsuitable” for the discharge
of fill material.
The final Section 404 permit application
was only for expansion of a parking lot adjacent
to the shelter The expansion was based upon
local zoning restrictions requinng facilities of a
designated size to have a requisite number of
parking spaces While the Society submitted the
permit application, it was noted by the Society
that a homeless shelter did not necessarily require
the number of parking spaces required by the
ordinance
EPA and the U S Fish and Wildlife Service
objected to the proposed project, expressing con-
cerns regarding the size and design of the parking
lot In response, the applicant made modifica-
tions to minimize potential impacts of erosion to
surrounding wetlands As previously stated, the
issues were mutually resolved and the permit was
issued about six months after the application was
submitted.
RANDY LONGBONS
FOR MORE INFORMATION call the EPA Wetlands HoUine at [ -8OO-83Z 7828
‘contractor operated
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Unriec States
Environmental Protection
Agency
Office ot Water tWH-556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EFAS43-F-;3-:c
Marcn 1993
EPA WETLANDS FACT SHEET #19
Agriculture and Wetlands:
§ 404 and Swampbuster
The two most important Federal wet-
lands programs that directly affect farmers are
the Section 404 permitting program and the
Swampbuster program. Section 404 of the Clean
Water Act requires that individuals must obtain
a U. S. Army Corps of Engineers (Corps) 404
permit before discharging dredged or fill mate-
rial into waters of the United States, including
most wetlands. The Swampbuster program of
the Food Security Act, administered by the U.S.
Department of Agriculture, is intended to dis-
courage the alteration of wetlands by withhold-
ing certain Federal farm program benefits from
farmers who convert or modify wetlands.
Section 404 permitting and Swampbuster
provision requirements are complex and can be
confusing. The Federal agencies involved are
actively working together to improve program
coordination, and to clarify the relationship be-
tween Section 404 and Swampbuster. For ex-
ample, “prior converted croplands” have been
excluded from regulation under Section 404 to
be consistent with Swampbuster.
Section 404 Provisions
Perhaps the most important informa-
tion for farmers regarding Section 404 is that
most routine, ongoing farming activities do
ncLt require individual Section 404 permits.
Section 404 permitting requirements apply only
to discharges of dredged or fill materials in
wetlands, streams, rivers, and “other waters of
the United States.” In general, farming activities
that occur in areas that are not wetlands or
waters of the U. S or that do not involve dis-
charges of dredged and fill material do not
require Section 404 permits
Many normal farming, silviculture and
ranching activities that involve discharges of
dredged or fill materials into waters of the United
States are exempted from Section 404, and do
not require notification or submission of a per-
mit application to the Corps In order to be
exempt, the farming activity must be part of an
ongoing farming operation and cannot be asso-
ciated with bringing a wetland into agriculture
production or converting an agricultural wet-
land to a non-wetland area.
Swampbuster Provisions
The Swampbuster provision of the 1985
Food Security Act, as amended by the Food,
Agriculture, Conservation, and Trade Act of
1990, withholds Federal farm program ben-
efits from any person who:
• plants an agricultural commodity on a
converted wetland that was converted by
drainage, dredging, leveling, or any other
means after December 23, 1985; or
• converts a wetland for the purpose of or to
make agricultural commodity production
possible after November 28, 1990.
Farmers are asked to report on whether
they plan to or have altered any ‘wet area”
when they apply for their farm benefits (Form
AD 1026). The Soil Conservation Service
assists farmers in making wetland determina-
tions with regard to the Swampbuster Pro-
gram.
To make sure farmers maintain
their benefits under the USDA farm
program 1 they should contact the Soil
Conservation Service before clearing
and stumping, draining, or manipu-
‘lating any wet areas on their land.
They should also check with the
local Corps district office if they are
unsure whether ongoing or planned
activities occurring in wetlands are
regulated under Section 404.
For more information, contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
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United States
Othca of Water (WH 55eF).
EPA2 3
F 92 00
Environmental Protection
Ofiice of Wetlands, Oceans,
Marcri 1993
Agency
and Watersheds (A-1C.4 F)
EPA WETLANDS FACT SHEET #20
Clean Water Act § 404(f) Exemptions
Section 404 of the Clean Water Act (Act)
requires permits for the discharge of dredged or
fill matenal into waters of the United States,
including wetlands
Exemptions
Section 404(f) of the Act generally ex-
empts discharges of dredged or fill matenal
associated with normal farming, ranching, and
forestry activities such as plowing, cultivating,
minor drainage, and harvesting for the produc-
tion of food, fiber, and forest products or upland
soil and water conservation practices. This ex-
emption pertains to normal farming and har-
vesting activities that are part of an established,
ongoing farming or forestry operation.
Activities Not Exempt
If an activity involving a discharge of
dredged or fill material represents a new use of
the wetland, and the activity would result in a
reduction in reach or impairment of flow or circula-
tion of regulated waters, including wetlands,
the activity is not exempt Both conditions must
be met in order for the activity to be considered
non-exempt.
Examples
Activities that bring a wetland into farm
production where that wetland has not previ-
ously been used for farming are not considered
part of an established operation, and therefore
are not exempt. In general, any discharge of
dredged or fill material associated with an activ-
ity that converts a wetland to upland is not
exempt, and requires a Section 404 permit.
However, introduction of a new cultiva-
tion technique such as discing between crop
rows for weed control may be a new farming
activity, but because the farm operation is ongo-
ing, the activity is exempt from permit require-
ments under Section 404. Planting different
crops as part of an established rotation, such as
soybeans to rice, is exempt. Discharges associ-
ated with ongoing rotations of rice and crawfish
production are also exempt To find out vhether
specific activities are exempt, contact the local
Corps or EPA office
Activities Exempt Under the
Clean WaterAct Sect àñ4O4 (f)
• Established (ongoing) normal farming,
ranching, and forestry activities:
- plowing
- seeding
- cultivating
- harvesting food, fiber, and
forest products
- minor drainage
-upland soil and water
conservation practices
• Maintenance (but not construction) of
drainage ditches
• Construction and maintenance of
irrigation ditches
• Construction and maintenance of farm
or stock ponds
• Construction and maintenance of farm
or forest roads, in accordance with best
management practices
• Maintenance of structures, such as
dams, dikes, and levees
The publication “Agriculture and Wetlands: A
Compilation of Factsheets” can be requested
[ ee of charge from the EPA Wetlands Hotline .
aricu1ture
‘Wet1ands
For more information, contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
I
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Unrted States
Ervironmentat Protection
Agency
Othce of Water (WH-556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA8 .13-F 93-OOiU
Marcn 1993
6EPA WETLANDS FACT SHEET #21
State, Tribal, Local and Regional
Roles in Wetlands Protection
Many of the factors that are attributed to
wetlands degradation and loss can be addressed
at the State or local level. States, Indian Tribes,
and local governments are becoming more in-
terested and active in comprehensive wetlands
protection through the authorities granted to
them in the Clean Water Act and existing State
legislation.
All levels of government must work together
to determine how to best protect wetland re-
sources and what the appropriate roles and
programs are for Federal, State, and local gov-
ernments. Thus, EPA is supporting the strength-
ening of State, Tribal, and local roles in wetlands
protection.
Current Opportunities
Section 404 Program
One of the ways States and Indian Tribes can
strengthen their role in wetlands protection is
by assuming permitting authority under the
Clean Water Act Section 404 program. To date,
only Michigan has assumed this program, which
regulates the discharge of dredged and fill ma-
terial in wetlands and other waters. Reasons
cited for limited State interest in program as-
sumption include:
• having to share jurisdiction with the Army
Corps of Engineers;
• the lack of Federal funding;
• the degree of Federal oversight allowed;
• burdensome program requirements;
• the lack of inland wetland protection
programs in all States; and
• the availability of other less controversial
opportunities for States to be involved in
wetlands protection.
Florida, New Jersey, and Delaware are cur-
rently pursuing Section 404 assumption. EPA is
workmg to assist these and other States inter-
ested in assumption.
Other Programs
Other strategies available to States and In-
dian Tnbes to strengthen their role in wetlands
protection include.
• undertaking comprehensive State Wetland
Conservation Plans;
• obtaining State Program General Permits
from the Corps for discharges of dredged
and fill material in wetlands;
• promulgating wetland water quality
standards;
• applying the Clean Water Act Section 401
Water Quality Certification program more
specifically to wetlands; and
• incorporating wetlands protection into other
State water programs.
Financial assistance is available from EPA to
pursue many of these activities through EPA’s
State Wetlands Protection Development Grant
Program. EPA also helps by providing informa-
tion and program guidance and by sponsoring
national forums on Stateprogram development.
Regional and local participation in wetland
protection can also be strengthened through
geographically-targeted comprehensive re-
source planning, such as multi-objective river
corridor management, watershed protection
approaches and advance identification of suit-
able and unsuitable sites for discharges
For further information, contact the EPA Wetlands Hotline: 1-800-832-7828 *
* contractor operated
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United States
Environmental Protection
Agency
Office of Water (WH-556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA243-F• j3-3C’
March 1 993
WETLANDS FACT SHEET #22
State Wetlands Grants Program
Background
States have been interested and involved
in wetlands protection for a long time. How-
ever, in many cases their efforts have been ham-
pered by the lack of fuiids to support State
wetlands protection programs.
In FY90 Congress first appropriated
funds for a grant program to support State wet-
lands protection efforts. This grant program
has provided an important opportunity for the
States to improve their wetland protection ef-
forts.
Current Program
These grant funds can be used to de-
velop State wetland protection programs that
enhance existing programs or develop new pro-
grams. However, grant funds cannot be used
for operational support of State wetland protec-
tion programs. Lack of funds to support opera-
tion of State wetlands programs will continue to
be a serious impediment to State involvement in
wetlands protection.
The State Wetlands Protection Develop-
ment Grant Program was initiated in FY90 with
$1 million appropriated to support the grant
program. In FY93 $10 million was appropriated
by Congress to support the grant program. State
interest in the grant program continues to grow.
States usually request more than double the
amount of grant funds available each year.
During FY92, EPA received approximately 160
applications from 43 States, 29 Tribes and two
Territories, and awarded 80 grants to 41 States,
9 Tribes and one Territory (see chart).
During the first three years of the grant
program, EPA has awarded a total of S14.5
million in grant funds to 48 States, 15 Tribes,
and one Territory.
4
z
App %catlons
Grants A*arded
Currently, the grant program is supporting:
• Section 404 assumption efforts in
Florida, Louisiana, and North Dakota;
• development of State Wetland Con-
servation Plans for the Tribal lands of the Red
Lake Band of ChippewaTribeand in New York,
Ohio, Delaware, New Jersey, Michigan, North
Dakota, Montana, and other States;
• Watershed Protection Approach Dem-
onstration Projects in Michigan (Grand Traverse
Bay), Delaware (Nanticoke River), and Oregon
(Willamette Valley);
• development of wetland water qual-
ity standards in Washington, Massachusetts,
Minnesota, North Carolina, Ohio and other
States;
• incorporation of wetlands into Sec-
tion 401 Water Quality Certification programs
in Arizona, Idaho, Indiana, Massachusetts, Ne-
braska, Texas, Utah, West Virginia, Minnesota,
South Carolina and other States.
- Yellow Perch
For More Information: Contact the EPA Wetlands Hotline* at 1-800-
832-7828 for copies of “Catalog of State Wetlands Protection Develop-
ment Grants,” available for Fiscal Years 1990, 1991, 1992.
EPA
FY g2
Examples
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Unrted States
Environmental Protect’on
Agency
Why Assume § 404?
Over a dozen States are currently
administering aquatic resources / wetlands
protection programs similar to the Federal
Section 404 program. State and Tribal
regulators are, in many cases, located closer
to the proposed activities and are often more
familiar with local resources, issues, and
needs than are Federal regulators. Formal
assumption of the regulatory program
eliminates unnecessary duplication between
State or Tribal and Federal programs. After
assumption, permit applicants will need only
a State or Tribal permit for dredged or fill
material discharges in certain waters.
What Waters are Assumable?
States and Tribes can assume the Federal
Section 404 program only in certain “non-
navigable” waters. The Army Corps of
Engineers retains jurisdiction in:
• tidal waters and their adjacent wetlands;
and
• navigable waters and their adjacent
wetlands.
In addition, the Corps continues to
regulate navigable waters under Section 10
of the Rivers and Harbors Act of 1899.
Requirements to Assume § 404
In order to assume the Section 404
program, States or Tribes need a wetlands
Office of Water (WH-556F),
Oifice of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA843-F-93-OO1 w
Marcri 1993
permit program that is similar to the Federal
program. Even for States or Tribes with an
existing wetlands regulatory program, this
can require the passage of new legislation.
In particular, the State’s or Tribe’s program
must:
• have an equivalent scope of jurisdiction;
• regulate at least the same activities;
• provide for sufficient public participation;
• ensure compliance with the § 404 (b) (1)
Guidelines, which provide environmental
criteria for permit decisions; and
• have adequate enforcement authority.
What Happens After Assumption?
After assumption, the Corps no longer
processes Section 404 permits in those
assumable waters under State or Tribal
jurisdiction. Instead, the State or Tribe
assumes responsibility for the program,
including determining what areas and
activities are regulated, processing the
individual permits, for specific proposed
activities, and enforcement. EPA reviews
the program annually, to ensure that the
State or Tribe is operating its program in
compliance with the requirements of the
law and regulations. In addition, for a small
subset of activities, generally larger
discharges with potentially serious impacts,
EPA and other Federal agencies review the
permit application and comment to the State
or Tribe; the State or Tribe cannot issue a
permit over EPA’s objection.
EPA WETLANDS FACT SHEET #23
State Assumption of the § 404
Permit Program
The Clean Water Act provides States, and Tribes with the option of
assuming the Federal Section 404 permit program in certain waters
within the State or Tribal jurisdiction.
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Status of State § 404 Assumption
To date, Michigan is the only State that
has assumed the Federal permit program.
However, other States and some Tribes are
working toward or investigating the
possibility of assuming the permit program.
New Jersey is seeking to assume the program
in 1993. Florida, North Dakota, and
Louisiana are investigating the feasibility
of program assumptian. Other States, such
as Wisconsin, Delaware, and some Tribes
have expressed interest in Section 404
assumption.
Several States have expressed a number
of reasons why they have not more actively
pursued assumption. These include:
• lack of available funding to run the
program;
• limit on State/Tribal assumption to “non-
navigable” waters;
• concerns regarding Federal
requirements and oversight;
• the availability of alternative
mechanisms for State/Tribal wetlands
protection; and
• the controversial nature of regulation
of wetlands and other aquatic
resources.
For More Information L
If a State or Tribe is interested in
investigating assumption of the Section 404
permit program, the appropriate EPA
Regional Office should be contacted. See
Wetlands Fact Sheet # 31, or call the EPA
Wetlands Hotline* for the appropriate
contact person. EPA can provide technical
assistance, and may also be able to provide
some financial assistance, through the State
Wetlands Grants Program, to help States
and Tribes develop the authority, capability,
and documentation needed to assume the
Federal permit program
State 404 Assumption Process
EPA is responsible for rev1e ng and appo ng/denysng a
States/Tribes request to assume the Federal Permit Program
within 120 days from receipt os the completed applicahon
EPA Receives Complete StateiTribal
Assumption Application
The Governor of the State oreq ivalent Tnbal entity submits
to EPA a full arid complete description of the program it
proposes to establish and administer under State law or under
an interstate compact In addition, the State submiti a state-
ment from the Attorney Cexieral that the laws provide ad-
equate authority to carry out the described program
Distribution of Application
for Public Comment
EPA distnoutesassumption app’ication toother Federal Agen-
cies (Corps, FWS, and MFS).
Public Hearing
EPA also makes the State’s/Tribe’s package available for pub-
lic review and comment and holds a public hearing(s) in the
State
EPA Decision
After reviewing the State s/Tribes application and consider-
ing the Agenci&and public comments, EPA makes a decision
on the request to assume the Federal permit program EPA s
decision Is based on whether or not the State or Tribe meets the
applicable statutory and regulatory requirements for an
approvable program
Assumption Approved Assumption Denied
---——- _____
NOTE Tribes are eli ble to apply to assume the Federal Pe mit
Program after they have met the requirements for ‘treati ’nent as a
State ‘ See the February 11, 1993, Regulations listed be’ow br
more information
Publications of Interest:
• Clean Water Act, Section 404 Program
Definition and Permit Exemptions; Section
404 State Program Regulations, June 6, 1988,
Federal Register, 40 CFR Parts 232 and 233
• Clean Water Act, Section 404
Regulations, February 11, l993
Register, 40 CFR Parts 232 and 233
For more information contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
Tribal
Federal
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United States
Erwironmental Protection
Agency
Under Section 401 of the Clean Water
Act (CWA), States and eligible Indian Tribes
have the authority to review and approve, con-
dition, or deny all Federal permits or licenses
that might result in a discharge to State waters,
including wetlands. The major Federal pro-
grams subject to §401 certification are: Section
404 and 402 permits (in non-delegated States);
Federal Energy Regulatory Commission (FERC)
hydropower licenses; and Rivers and Harbors
Act Section 9 and 10 permits. States may choose
to waive their §401 certification authority.
States make their decision to deny, cer-
tify or condition permits or licenses primarily
by ensuring that the activity will comply with
State water quality standards. In addition,
States look at whether the activity will violate
effluent limitations, new source performance
standards, toxic pollutants and other water re-
source requirements of State law or regulation.
EPA Assistance to States
Technical Guidance:
hi 1988, the National Wetlands Policy
Forum recommended that States “make more
aggressive use of their certification authorities
under Section 401 of the CWA to protect their
wetlands from chemical and other types of al-
terations”. In response, EPA issued guidance in
1989 to States on applying §401 certification to
protect wetlands. A year later, EPA followed
this up with guidance on developing water qual-
ity standards specifically for wetlands. Wet-
land water quality standards are important be-
cause they are the pnmary tool used in water
quality certification decisions
Financial Support:
Nineteen States and one Indian Tnbe
have been awarded State Wetlands Grants to
Oflice of Water (WH-556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA843-F-93-Oo
March 1993
tect wetlands . These grantees are: Arizona, Cali-
fornia, Hawaii, Idaho, Indiana, Maryland,Mas-
sachusetts, Michigan, Mille Lacs Tribe, Minne-
sota, Missouri, Nebraska, North Carolina, Or-
egon, South Carolina, Texas, Utah, Virginia,
West Virginia and Wyoming.
State Progress
Over the past several years, States have
made progress in applying §401 certification to
wetlands Some States rely on §401 certification
as their primary mechanism to protect wetlands
in the State. In addition, most States denied or
conditioned §401 certification for some §404 na-
tionwide general permits in order to reduce
certain problematic losses in their State In par-
ticular, many States de’nied certification of na-
tionwide 26 because they believe that individual
review of projects in isolated and headwater
wetlands is critical to achieving CWA goals in
their State.
EPA has asked States to develop or im-
prove their wetland water quality standards by
the end of September 1993. Wisconsin is using
continued on back
&EPA WETLANDS FACTSHEET#24
401 Certification and Wetlands
Opportunity for States
Does §401 certification add another
layer of bureaucracy or cause delays?
It shouldn’t . Instead, 401 certiflcati i
allows States to take a more active role in
wetland decisions . In most cases, 401
certification review is conducted at the
same time as the Federal agency review.
Many States have established joint per-
mit processing to ensure this. In addi-
tion, the 401 review allows for better
consideration of State-specific concerns.
support use of Section 401 Certification to pro -
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401 Certification and Wetlands...
its new standards in §401 certification decisions
on wetlands Other States are using their §401
authonty to condition some of the more than 300
dams that are coming up for rehcensing by FERC
§401 certification allows States to address asso-
ciated chemicaL physical and biological Lmpacts
such as low dissolved oxygen levels, turbidity,
inundation of habitat, stream volumes and fluc-
t-uations, filling of habitat, impacts on fish
migration and loss of aquatic species due to
habitat alterations.
Wood Stork
How can water quality standards protect wetlands?
(functions), maintenance of water quality of
highquality waters, anda prohibition against
lowenng water quality in outstanding re-
source waters. In addition, a States
antidegradation policy addresses fill activi-
ties in wetlands by ensunng that there is no
sigrtthcant degradation due to the fill activ-
ity.
Water quality standards have three
components: designated uses, cnteria to pro-
tect those uses; and an antidegradation policy
States designate uses based on the functions
and values of their wetlands At a minimum
these uses must meet the CWA goals to pro-
vide for the protection and propagation of
fish, shellfish, and wildlife and for recreation
in and on the water States n-tay also designate
uses associated with unique functions and
values of wetlands such as floodwater storage
and groundwater recharge.
States adopt criteria to protect those
uses. Criteria can be general narrative state-
ments such as “maintain natural hydrologic
conditions, including hydroperiod, hydrody-
narrucs, and natural water temperature vana-
tions necessary to support vegetation which
would be present naturally” Cntena may
also include specific numeric values such as a
dissolved oxygen concentration of 5.0 mg/I
State antidegradation policies include
provisions for full protection of existing uses
Narrative criteria in conjunction
with antidegradation policies, can provide
the basis for addressing hydrologic and
physical impacts to wetlands (not discerned
through numeric criteria) caused by
nonpoint source pollution, storm water dis-
charges, groundwater pumping, filling and
other sources of wetland degradation When
combined with a strong implementation
policy, wetland waterquality standards can
provide the basis for such tools as best man-
agement practices, monitoring programs,
and mitigation plans, as well as serve as the
pnmary basis for §401 certification deci-
sions.
For more information: contact the EPA Wetlands Hotline* at 1-800-832-7828 for copies
of: Wetlands and 401 Certification , 1989; Water Oualitv Standards for Wetlands , 1990,
Statement of Martha C Prothro May 1992
* Contractor operated
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Since wetlands are typically the lowest
points on the landscape, they often receive runoff
from surrounding land Runoff can be collected,
conveyed or discharged from conduits, pipes,
animal feedlots, waste treatment plants or float-
ing crafts In addition, precipitation, atmospheric
deposition, seepage, or hydrologic modifications
can result in runoff that moves over and through
the ground picking up natural or anthropogenic
pollutants, which then become deposited directly
into surface or groundwater In either case, as
runoff move across the land, water picks up and
carries with it pollutants which ultimately end up
in rivers, lakes, groundwater, and wetlands
TO USE OR NOT TO USE?
Because wetlands have a natural
waxer quality improvement function, there
has been a tremendous amount of interest in
using wetlands to treat runoff from urban
areas agricultural lands, and other pollut-
ant sources. There are significant opportu-
nities to protect and restore wetlands and
riparian areas as one patt of programs ad-
dressingrunoff. However, the critical ques.
don is: “What can wetlands safely handle
before they are contaminated or their
functions degraded?” While wetlands do
provide valuable water quality protection
for downstream rivers, lakes, and estuaries,
the quality of the wetlands, as waters -of the
United States, should also be protected.
Decisions that route runoff into wetlands,
either inadvertently or by design, should be
carefully evaluated and adequate wetlands
protection should be provided, including
use of best management practices (‘BMPs)
and monitoring how well they worL
Clean Water Act §402(p)
Section4O2(p) requires stormwater permits
for four major classes of stormwater dis-
charges (1) a discharge with respect to
which a permit has been issued under Sec-
tion 402 before the date of the enactment of
this subsection, (2) a discharge associated
with industrial activity, (3) adischarge from
a municipal separate stormwater sewer
system serving an incorporated or unincor-
porated, urbanized population greater than
100,000, and (4) a discharge that contnb-
utes to a violation of a water quality stan-
dard or is a significant contributor of pol-
lutants to waters of the United States. This
program has issued guidance for prepara-
tion of permit applications for regulated
municipal and industnal stormwater dis-
charges In addition, it stresses the use of
best management practices (BMPs) to mini-
mize or eliminate the contribution of pol-
lutants to stormwater discharges to waters
of the United States, including wetlands.
Clean Water Act §319
EPA supports a national program to con-
trol nonpoint sources of pollution. EPA
stresses a watershed based approach to
nonpoint source management which can
include protection or restoration of wet-
lands and npanan areas to reduce nonpoint
source pollution EPA has funded a num-
ber of these projects under Section 319(h).
Coastal Zone Act Reauthorization
Amendments (CZARA) of 1990 §6217
EPA and the National Oceanic and Atmo-
spheric Administration have developed
guidance specifying management measures
for nonpoint source pollution affecting
coastal waters. Included in the guidance
(released January 1993) is a chapter on pro-
tection and restoration of wetlands and
riparian areas, and use of vegetated treat-
ment systems for nonpoint source control
FOR MORE INFORMATION: call the EPA Wetlands Hotline* at 1-800-83Z-7828,
S a as
Envrc ri entaI P-otec:cn
? g enc’/
EPA
CTc ’ ci ‘ilater -i 55SF
C f ce cf We?Iards, Oceans
and Watersheds (A-1C4 F)
Marcn ‘992
WETLANDS FACT SHEET #25
Wetlands and Runoff
EPA. PROG .•:
‘contractor operated
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United States
Environrnontat Prctection
Agency
Of’ce ci V1a e VIH 55cF),
Office or yVerlanas, Oceans,
and Watersh€ds (A-104 F)
EFAE- .3
Marci 193
6EPA WETLANDS FACT SHEET#26
Wetlands and Watersheds
Water resource protection measures
need to be better coordinated to reflect the inter-
connected nature of water resources and to make
current efforts more efficient and more effec-
tive. Wetlands and traditional surface and
ground water quality protection programs
should be integrated with each other as well as
with other resource management programs, such
as flood control, water supply, protection of fish
and wildlife, recreation, control of stormwater,
and nonpoint source pollution
Background
The quality of the waters of the United
States, including wetlands and other aquatic
resources, is related to the quality of the envi-
ronment adjacent to these waters. Current pro-
grams have historically been organized around
separate goals Given that the larger point
A watershed, also called a drainage
basin, is the area in which all water,
sediments, and dissolved materials flow
or drain from the land into a common
river, lake, ocean or other body of water
also the surrounding land from which the water
drains. This can be an area as large as the
Mississippi River drainage basin, or as small as
a backyard
Current Activities
EPA’s Office of Wetlands, Oceans, and
Watersheds (OWOW) is actively pursuing a Wa-
tershed Protection Approach within the Office
of Water and with other Federal agencies One
of OWOW’s activities was to convene a national
conference in March, 1993, bringing watershed
management experts from across the nation to-
gether to discuss methods and directions for
watershed approaches. OWOW’s Wetlands Di-
vision incorporates a watershed approach in
much of its work with other agencies, States, and
organizations. Current activities include inte-
grating a watershed approach into Federal flood-
plain management activities, funding State wa-
tershed projects through State Wetland Protec-
tion Grants and Nonpoint Source Grants, and
supporting a senes of national and regional
meetings on wetlands and regional watershed
planning.
sources of water pollution are now identified
and controlled to some degree, remaining wa-
ter quality problems require an approach which
addresses the interconnections between water
resources and the land, air, and water environ-
ment surrounding the resources A watershed
based approach to water and wetlands protec-
tionconsiders the wholesystem, including other
resource management programs addressing
land, air, and water, to successfully manage
problems or solutions for a given aquatic re-
source. It should be noted that a watershed
encompasses not only the water resource, but
For more information, contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
WATERS H ED
• An Integrated, Holistic Approach
?ROTECTION
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&EPA
United States
Office of Water (WH-556F),
EPA84
3-F 3-O31 aa
Environmental Protection
Office of Wetlands, Oceans,
March
1 993
Agency
and Watersheds (A-i 04 F)
WETLANDS FACT SHEET #27
What is a State Wetland
Conservation Plan?
A new tool that States are using to pro-
tect wetlands is the State Wetland Conservation
Plan (SWCP). A State Wetland Conservation
Plan is not meant to create a new level of bureau-
cracy. Instead, it improves government and
private sector effectiven ss and efficiency by
identifying gaps in wetland protection programs
and finding opportunities to make wetlands
programs work even better.
SWCP’s are strategies for States to
achieve no net loss and other wetland
management goals by integrating both
regulatory and cooperative approaches
to protecting wetlands.
What are States doing?
Currently, nineteen States are at various
stages of developing an SWCP and have re-
ceived financial assistance from EPA.
Advantages
A large number of land and water-based
activities impact wetlands. These activities are
not addressed by any single Federal, State or
local agency program. While many public and
private programs and activities protect wet-
lands, these programs are often limited in scope
and not well coordinated. Neither do these
programs address all of the problems affecting
wetlands.
States are well positioned between Fed-
eral and local government to take the lead in
integrating and expanding wetland protection
and management programs. They are experi-
enced in managing Federally mandated envi-
ronmental programs under the Clean Water Act
and the Coastal Zone Management Act. They
are uniquely equipped to help resolve local and
regional conflicts and identify the local eco-
nomic and geographic factors that may influ-
ence wetlands protection.
• Michigan’s SWCP will focus primarily on
non-regulatory aspects of wetlands manage-
ment to complement their regulatory programs.
Initiatives will be developed for wetland water
quality, reclamation of valuable wetland func-
tions, coordination of existing wetland protec-
tion and management efforts, and wetland edu-
cation and outreach.
• California plans through its SWCP to inven-
tory its wetlands, identify crucial wetlands, de-
velop a statewide strategy to plan wetlands
protection and restoration, and take a crucial
role in overall wetland regulation.
• New York will work towards a “no net loss!
net gain” goal under its SWCP. Because one
purpose of an SWCP is to integrate wetlands
protection into other programs, wetland issues
and references to the SWCP have been inte-
grated into several State programs.
Other States working on SWCP’s include: MO,
TN, DE, NJ, ND, OH, OK, OR, TX, AL, AR, IL,
MT. NE, VT, WA.
FOR MORE INFORMATION:
• See the Statewide Wetlands Strategies guidebook, which is available from Island Press
(1-800-828-1302).
• Call the EPA Wetlands Hotline* at 1-800-832-7828.
• Ask for copies of the SWCP brochure “Why Develop a State Wetland Conservation Plan?”
from the hotline*.
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Advance Identification of disposal areas
(ADID) is an advance planning process under
which EPA, in cooperation with the Corps of
Engineers and after consultation with the State,
may identify wetlands and other
waters which are either gener-
ally suitable or unsuitable for
the discharge of dredged and
fill matenal prior to the receipt
of a Section 404 permit applica-
tion. The ADID process gener-
ally involves collection and dis-
tribution of information on the
values and functions of wetland
areas. This information pro-
vides the local community with
information on the values of
wetland areas that may be af-
fected by their activities as well
as a preliminary indication of
factors which are likely to be
nsidered dunng review of a
ection 404 permit application.
The ADID process is in-
tended to add predictability to
the wetlands permitting pro-
cess as well as better account
for the impacts of losses from
multiple projects within a geo-
graphic area The process also
serves to inform the local popu-
lation of the values and func-
tions of wetlands in their area,
and it generates environmental
information valuable for other
purposes
While an ADID study generally classifies
wetland areas as suitable or unsuitable for the
discharge of dredged or fill matenal, the classifi-
cation does not constitute either a permit ap-
proval or denial and should
_____________ be used only as a guide by
landowners and project pro-
ponents in the planning of fu-
ture activities. The nature of
the classification is stnctly ad-
visory.
As of December1992, there
were 35 completed ADID
projects, and 36 are ongoing
ADID projects have ranged in
size from less than 100 acres to
greater that 4,000 square miles,
and are located from Alaska to
Flonda. Advance Identifica-
tion projects can be resource
intensive activities, although
some have been completed in
as little as 6 months. Regional
expenence seems to indicate
that the smaller or more local
the ADID project boundanes,
the more complete and effec-
tive the ADID analysis and re-
sults EPA has seen an in-
crease in interest in ADID, and
expects more States, localities,
and private organizations to
become involved in providing
funds and otherwise support-
ing ADID or other comprehen-
sive planning efforts.
CASE STUDY: In the West Eugene Wetlands Special Axea Study, local ADID efforts
did lead to a SectIon 404 general permit. Because the ADID was Incorporated Into the —
City of Eugene t s general comprehensive plan, and due to the fact that Oregon land use
policies have the effect of local land use law, the ADID effort streamlined the
regulatory process.
FOR MORE INFORMATION: call the EPA Wetlands Hotlme* at 1-800-832-7828
United Sta’es
Environmental Protection
Agency
Otice t Water WH-556F).
Office of Wetlands, Oceans,
ano Watersheds (A-104 F)
EPAa42-F ;3- c o
Marcn 1993
WETLANDS FACT SHEET #28
Advance Identification (ADID)
FACTS
Experience shows that
local cooperation and sup-
port are vital to the suc-
cess of the ADID project.
Recently, ADID’s have.
been initiated by local en-
tities in order to facilitate
local planning efforts.
These efforts have proven
to be the most successful
way for generating sup-
port for wetlands protec-
tion.
R Because they are usu-
ally based on watershed
planning, ADlDeffortsare..
extreinely compatible.
with geographic and eco-..
system initiatives such as..
EPA’s Watershed Protec-
tion Approach
contractor operated
Prznt d on Recycled Paper
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Status of EPA
Wetlands Advance Identification
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Wate, , OWOW, Wetlands Division
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United States
Environmenta’ Protection
Agency
Office of Water (WH•556F),
Office of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA843-F-93-OOi cc
March 1993
EPA WETLANDS FACT SHEET#29
EPA’s Outreach Efforts
EPA’s Wetlands Division marshals •American Wetlands Month—Across the
a variety of tools to protect wetlands effec- country each May, Federal agencies, State
tively. One of the primary tools is outreach, and local governments, and private and
including fostering public and private part- non-profit organizations come together vol-
nerships, providing technical assistance, and untarily to increase public awareness of the
educating the public. The Wetlands Divi- values and productivity of wetlands, en-
sion and EPA’s Regional Offices are actively courage people to enjoy these. resources,
involved in outreach initiatives that include: and to protect, recognize, enhance, com-
memorate, and restore our Nation’s wet-
• creating partnerships with the agricul- lands.
tural community, private landowners,
State and local governments, and other •Audubon’s America: A program to pro-
Federal agencies; tect, conserve, restore, en-
hance and interpret the
• educating the public, children, and
natural and cultural re
adults; and
source values of the land
• providing technical assistance to State and water areas in the.35
and local governments as well as pri- States where John James Audubon lived,
vate, and non-profit organizations. traveled, wrote, painted, and observed. This
will be accomplished by recognizing and
BACKGROUND
establishing a system of connected public
In order to increase long-term wet- and privately owned natural areas in the
lands conservation and management, it is mid-western and eastern United States.
necessary to enhance public understanding • Sponsorship of Workshops and Confer-
of the value of wetlands as well as support ences: EPA sponsors a van-
innovative programs that encourage pri- ety of forums encouraging in-
vate, State and local actions to conserve formed discussion on wet-
wetlands.
lands issues including State
OUTREACH INITIATIVES programs, wetlands and wa-
tershed management, categorization, miti-
• EPA Wetlands Protection Hotline: gation, altered wetlands, and education.
(1-800- 832-7828): A toll free telephone ser-
vice, operated by a contrac- • Available Publications: Private
tor to EPA, that is respon- Landowner’s Wetlands Assistance Guide; ‘
—— sive to public interest, ques- Agriculture and Wetlands: a Compjlatib t
tions, and requests for in- of Factsheets; Beyond t1 Es-
— formation about wetlands. tuary: ThelmportanceofUp-
In its first year of operation (March 1991.- streamWetlandsinEstuarine
February 1992), the Hotline received and Processes; and Am rica’s
responded to over 14,100 calls, an average of Wetlands: Our Vital Link Be-
more than 1,100 per month. tween Land and Water.
For more information, contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
S -
Printed on Recycled Pa-per
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Untec S:atos
Env rcnmenta Protection
Agency
n.cec a. H-:: r-.,
Otfce of Veuancs, Oca:ns.
and Watersheds (A- 04 F 1
Ma
WETLANDS FACT SHEET #30
Partnerships with Landowners
All ethics so far evolved rest upon a single premise: that the
individual is a member of a community of interdependent parts. His
instincts prompt him to compete for his place in the community, but his
ethics prompt him also to co-operate (perhaps in order that there may
be a place to compete for). The land ethic simply enlarges the bound-
aries of the co nmunity to include soils, waters, plants, animals, or
collectively, the land.
- Aldo Leopold, A Sand County Almanac
There is a real and increasingly popular
opportunity to strengthen wetlands protection
by fostering innovative public/private partner-
ships and promoting landowner participation
in voluntary wetlands stewardship programs.
These programs address individual and
community economic and quality of life issues.
Wetlands conservation has positive, long term
impacts on the environment, commerce, and
quality of life. In contrast, continued wetland
loss has negative impacts on water quality,
biodiversity, the economy, and human health
and safety.
Ownership of Wetlands in US o Private
Public
75%
Source: USFWS, 1989
Approximately 75% of the remaining
wetlands in the lower 48 States are privately
owned. Recently, much of the national focus on
wetlands protection has been on regulatory pro-
grams. However, regulatory programs only
provide partial protection. In contrast, there are
numerous voluntary programs in the public
and private sector that provide educational,
technical, and financial assistance to private
landowners.
Private landowner assistance and part-
nership programs among government, non-
profit and private interest groups are areas of
growing national interest. The potential for
voluntary programs to protect wetland resources
is being-recognized by Federal, State, and local
governments. EPA has actively promoted land-
owner assistance and partnership programs
through activities such as American Wetlands
Month, Audubon’s America, the EPA Wetlands
Hotline t , and a multiagency pilot project pro-
moting voluntary wetlands programs in the
State of Maryland.
Other States and regions have indicated
a strong interest in initiating a program similar
to the Maryland program, including EPA Re-
gion VI, and the States of Arizona and Oregon.
EPA is also participating in the initiation of an
interagency wetlands marketing initiative by
the USDA Soil Conservation Service. EPA is
developing a strategy to publicize and coordi-
nate programs that assist private landowners in
conserving and managing wetlands nationwide.
FOR MORE INFORMATION: • Private Landowners Wetlands Assistance Guide: Volun-
tary Options for Wetlands Stewardship in Maryland available from the EPA Wetlands
Hotline* at 1-800-832-7828
EPA
contractor operated
ca Printed on Rec.icLed P zper
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V. MODEL COMPLAINTS AND PLEADINGS
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