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.
2

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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.
2

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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.
3

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tO
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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(bJ
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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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

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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.

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• 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%

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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.

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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

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‘,. ‘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.

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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

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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

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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

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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.

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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.

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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.

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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:

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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
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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 ‘ -
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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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Federal -Register / Vol. 51,
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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41216 Federal Register / Vol. 51.
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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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.
No 219 / Thursday, November 13, 1986 I Rules and Regulations 41233
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 P