33 U.S.C. 1412 and 1418.
(a)
(1) No person shall transport from the United States any material for the purpose of dumping it into ocean waters;
(2) In the case of a vessel or aircraft registered in the United States or flying the United States flag or in the case of a United States department, agency, or instrumentality, no person shall transport from any location any material for the purpose of dumping it into ocean waters; and
(3) No person shall dump any material transported from a location outside the United States:
(i) Into the territorial sea of the United States; or
(ii) Into a zone contiguous to the territorial sea of the United States, extending to a line twelve nautical miles seaward from the base line from which the breadth of the territorial sea is measured, to the extent that it may affect the territorial sea or the territory of the United States.
(b)
(c)
(i) Harbors or other protected or enclosed coastal waters; or
(ii) Any other location where the Administrator finds that such dumping may reasonably be anticipated to endanger health, the environment or ecological systems.
(2)
(3)
(i) Routine discharges of effluent incidental to the propulsion of vessels or the operation of motor-driven equipment on vessels; or
(ii) Construction of any fixed structure or artificial island, or the intentional placement of any device in ocean waters or on or in the submerged
(4)
As used in this subchapter H:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i) Unless the context otherwise requires, all other terms shall have the meanings assigned to them by the Act.
This § 220.3 provides for the issuance of general, special, emergency, interim and research permits for ocean dumping under section 102 of the Act.
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(1) The dumping of material in those portions of the territorial sea which are subject to the jurisdiction of any State within their respective Regions, and in those portions of the contiguous zone immediately adjacent to such parts of the territorial sea; and in the oceans with respect to approved waste disposal sites designated pursuant to part 228 of this subchapter H, and
(2) Where transportation for dumping is to originate in one Region and dumping is to occur at a location within another Region's jurisdiction conferred by order of the Administrator, the Region in which transportation is to originate shall be responsible for review of the application and shall prepare the technical evaluation of the need for dumping and alternatives to ocean dumping. The Region having jurisdiction over the proposed dump site shall take all other actions required by this subchapter H with respect to the permit application, including without limitation, determining to issue or deny the permit, specifying the conditions to be imposed, and giving public notice. If both Regions do not concur in the disposition of the permit application, the Administrator will make the final decision on all issues with respect to the permit application, including without limitation, issuance or denial of the permit and the conditions to be imposed.
(c)
33 U.S.C. 1412 and 1418.
Applications for general, special, emergency, interim and research permits under section 102 of the Act may be filed with the Administrator or the appropriate Regional Administrator, as the case may be, authorized by § 220.4 to act on the application. Applications shall be made in writing and shall contain, in addition to any other material which may be required, the following:
(a) Name and address of applicant;
(b) Name of the person or firm transporting the material for dumping, the name of the person(s) or firm(s) producing or processing all materials to be transported for dumping, and the name or other identification, and usual location, of the conveyance to be used in the transportation and dumping of the material to be dumped, including information on the transporting vessel's communications and navigation equipment;
(c) Adequate physical and chemical description of material to be dumped, including results of tests necessary to apply the Criteria, and the number, size, and physical configuration of any containers to be dumped;
(d) Quantity of material to be dumped;
(e) Proposed dates and times of disposal;
(f) Proposed dump site, and in the event such proposed dump site is not a dump site designated in this subchapter H, detailed physical, chemical and biological information relating to the proposed dump site and sufficient to support its designation as a site according to the procedures of part 228 of this subchapter H;
(g) Proposed method of releasing the material at the dump site and means by which the disposal rate can be controlled and modified as required;
(h) Identification of the specific process or activity giving rise to the production of the material;
(i) Description of the manner in which the type of material proposed to be dumped has been previously disposed of by or on behalf of the person(s) or firm(s) producing such material;
(j) A statement of the need for the proposed dumping and an evaluation of short and long term alternative means of disposal, treatment or recycle of the material. Means of disposal shall include without limitation, landfill, well injection, incineration, spread of material over open ground; biological, chemical or physical treatment; recovery and recycle of material within the plant or at other plants which may use the material, and storage. The statement shall also include an analysis of the availability and environmental impact of such alternatives; and
(k) An assessment of the anticipated environmental impact of the proposed dumping, including without limitation, the relative duration of the effect of the proposed dumping on the marine environment, navigation, living and non-living marine resource exploitation, scientific study, recreation and other uses of the ocean.
In the event the Administrator, Regional Administrator, or a person designated by either to review permit applications, determines that additional information is needed in order to apply the Criteria, he shall so advise the applicant in writing. All additional information requested pursuant to this § 221.2 shall be deemed part of the application and for purposes of applying the time limitation of § 222.1, the application will not be considered complete until such information has been filed.
Any person may apply for a permit under this subchapter H even though the proposed dumping may be carried on by a permittee who is not the applicant; provided however, that the Administrator or the Regional Administrator, as the case may be, may, in his discretion, require that an application be filed by the person or firm producing or processing the material proposed to be dumped. Issuance of a permit will not excuse the permittee from any civil or criminal liability which may attach by virtue of his having transported or dumped materials in violation of the terms or conditions of a permit, notwithstanding that the permittee may not have been the applicant.
No permit issued under this subchapter H will be valid for the transportation or dumping of any material which is not accurately and adequately described in the application. No permittee shall be relieved of any liability which may arise as a result of the transportation or dumping of material which does not conform to information provided in the application solely by
(a) A processing fee of $1,000 will be charged in connection with each application for a permit for dumping in an existing dump site designated in this subchapter H.
(b) A processing fee of an additional $3,000 will be charged in connection with each application for a permit for dumping in a dump site other than a dump site designated in this subchapter H.
(c) Notwithstanding any other provision of this § 221.5, no agency or instrumentality of the United States or of a State or local government will be required to pay the processing fees specified in paragraphs (a) and (b) of this section.
33 U.S.C. 1412 and 1418.
Decisions as to the issuance, denial, or imposition of conditions on general, special, emergency, interim and research permits under section 102 of the Act will be made by application of the criteria of parts 227 and 228. Final action on any application for a permit will, to the extent practicable, be taken within 180 days from the date a complete application is filed.
(a) Within 30 days of the receipt of his initial application, an applicant shall be issued notification of whether his application is complete and what, if any, additional information is required. No such notification shall be deemed to foreclose the Administrator or the Regional Administrator, as the case may be, from requiring additional information at any time pursuant to § 221.2.
(b) Within 30 days after receipt of a completed permit application, the Administrator or the Regional Administrator, as the case may be, shall publish notice of such application including a tentative determination with respect to issuance or denial of the permit. If such tentative determination is to issue the permit, the following additional tentative determinations will be made:
(1) Proposed time limitations, if any;
(2) Proposed rate of discharge from the barge or vessel transporting the waste;
(3) Proposed dumping site; and
(4) A brief description of any other proposed conditions determined to be appropriate for inclusion in the permit in question.
(a)
(1) A summary of the information included in the permit application;
(2) Any tentative determinations made pursuant to paragraph (b) of § 222.2;
(3) A brief description of the procedures set forth in § 222.5 for requesting a public hearing on the application including specification of the date by which requests for a public hearing must be filed;
(4) A brief statement of the factors considered in reaching the tentative determination with respect to the permit and, in the case of a tentative determination to issue the permit, the reasons for the choice of the particular permit conditions selected; and
(5) The location at which interested persons may obtain further information on the proposed dumping, including copies of any relevant documents.
(b)
(i) Publication in a daily newspaper of general circulation in the State in closest proximity to the proposed dump site; and
(ii) Publication in a daily newspaper of general circulation in the city in which is located the office of the Administrator or the Regional Administrator, as the case may be, giving notice of the permit application.
(2)
(3)
(i) That an emergency, as defined in paragraph (c) of § 220.3 exists;
(ii) That the emergency poses an unacceptable risk relating to human health;
(iii) That the emergency admits of no other feasible solution; and
(iv) That the public interest requires the issuance of an emergency permit as soon as possible.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(a) In the case of any permit application for which public notice in advance of permit issuance is required in accordance with paragraph (b) of § 222.3, any person may, within 30 days of the date on which all provisions of paragraph (b) of § 222.3 have been complied with, request a public hearing to consider the issuance or denial of, or the conditions to be imposed upon, such permit. Any such request for a public hearing shall be in writing, shall identify the person requesting the hearing, shall state with particularity any objections to the issuance or denial of, or to the conditions to be imposed upon, the proposed permit, and shall state the issues which are proposed to be raised by such person for consideration at a hearing.
(b) Whenever (1) a written request satisfying the requirements of paragraph (a) of this section has been received and the Administrator or Regional Administrator, as the case may be, determines that such request presents genuine issues, or (2) the Administrator or Regional Administrator, as the case may be, determines in his discretion that a public hearing is necessary or appropriate, the Administrator or the Regional Administrator, as the case may be, will set a time and place for a public hearing in accordance with § 222.5, and will give notice of such hearing by publication in accordance with § 222.3.
(c) In the event the Administrator or the Regional Administrator, as the case may be, determines that a request filed pursuant to paragraph (a) of this section does not comply with the requirements of such paragraph (a) of this section or that such request does not present substantial issues of public interest, he shall advise, in writing, the person requesting the hearing of his determination.
Hearings shall be held in the State in closest proximity to the proposed dump site, whenever practicable, and shall be set for the earliest practicable date no less than 30 days after the receipt of an appropriate request for a hearing or a determination by the Administrator or the Regional Administrator, as the case may be, to hold such a hearing without such a request.
A hearing convened pursuant to this subchapter H shall be conducted by a Presiding Officer. The Administrator or Regional Administrator, as the case may be, may designate a Presiding Officer. For adjudicatory hearings held pursuant to § 222.11, the Presiding Officer shall be an EPA employee who has had no prior connection with the permit application in question, including without limitation, the performance of investigative or prosecuting functions or any other functions, and who is not employed in the Enforcement Division or any Regional enforcement office.
The Presiding Officer shall be responsible for the expeditious conduct of the hearing. The hearing shall be an informal public hearing, not an adversary proceeding, and shall be conducted so as to allow the presentation of public comments. When the Presiding Officer determines that it is necessary or appropriate, he shall cause a suitable record, which may include a verbatim
Within 30 days following the adjournment of a public hearing convened pursuant to § 222.5, or within such additional period as the Administrator or the Regional Administrator, as the case may be, may grant to the Presiding Officer for good cause shown, and after full consideration of the comments received at the hearing, the Presiding Officer will prepare and forward to the Administrator or to the Regional Administrator, as the case may be, written recommendations relating to the issuance or denial of, or conditions to be imposed upon, the proposed permit and the record of the hearing, if any. Such recommendations shall contain a brief statement of the basis for the recommendations including a description of evidence relied upon. Copies of the Presiding Officer's recommendations shall be provided to any interested person on request, without charge. Copies of the record will be -provided in accordance with 40 CFR -Part 2.
(a) Within 30 days following receipt of the Presiding Officer's recommendations or, where no hearing has been held, following the close of the 30-day period for requesting a hearing as provided in § 222.4, the Administrator or the Regional Administrator, as the case may be, shall make a determination with respect to the issuance, denial, or imposition of conditions on, any permit applied for under this Subchapter H and shall give notice to the applicant and to all persons who registered their attendance at the hearing by providing their name and mailing address, if any, by mailing a letter stating the determination and stating the basis therefor in terms of the Criteria.
(b) Any determination to issue or deny any permit after a hearing held pursuant to § 222.7 shall take effect no sooner than:
(1) 10 days after notice of such determination is given if no request for an adjudicatory hearing is filed in accordance with § 222.10(a); or
(2) 20 days after notice of such determination is given if a request for an adjudicatory hearing is filed in accordance with paragraph (a) of § 222.10 and the Administrator or the Regional Administrator, as the case may be, denies such request in accordance with paragraph (c) of § 222.10; or
(3) The date on which a final determination has been made following an adjudicatory hearing held pursuant to § 222.11.
(c) The Administrator or Regional Administrator, as the case may be, may extend the term of a previously issued permit pending the conclusion of the proceedings held pursuant to §§ 222.7 through 222.9.
(d) A copy of each permit issued shall be sent to the appropriate District Office of the U.S. Coast Guard.
(a) Within 10 days following the receipt of notice of the issuance or denial of any permit pursuant to § 222.9 after a hearing held pursuant to § 222.7, any interested person who participated in such hearing may request that an adjudicatory hearing be held pursuant to § 222.11 for the purpose of reviewing such determination, or any part thereof. Any such request for an adjudicatory hearing shall be filed with the Administrator or the Regional Administrator, as the case may be, and shall be in writing, shall identify the person requesting the adjudicatory hearing and shall state with particularity the -objections to the determination, the -basis therefor and the modification -requested.
(b) Whenever a written request satisfying the requirements of paragraph (a) of this section has been received and the Administrator or Regional Administrator, as the case may be, determines that an adjudicatory hearing is warranted, the Administrator or the Regional Administrator, as the case may be, will set a time and place for an adjudicatory hearing in accordance with § 222.5, and will give notice of such hearing by publication in accordance with § 222.3.
(c) Prior to the conclusion of the adjudicatory hearing and appeal process, the Administrator or the Regional Administrator, as the case may be, in his discretion may extend the duration of a previously issued permit until a final determination has been made pursuant to § 222.11 or § 222.12.
(d) In the event the Administrator or the Regional Administrator, as the case may be, determines that a request filed pursuant to paragraph (a) of this section does not comply with the requirements of such paragraph (a) of this section or that such request does not present substantial issues of public interest, he shall advise, in writing, the person requesting the adjudicatory hearing of his determination.
(e) Any person requesting an adjudicatory hearing or requesting admission as a party to an adjudicatory hearing shall state in his written request, and shall by filing such request consent, that he and his employees and agents shall submit themselves to direct and cross-examination at any such hearing and to the taking of an oath administered by the Presiding Officer.
(a)
(b)
(2) Copies of all documents and papers filed with the Presiding Officer shall be served upon all other parties to the adjudicatory hearing.
(c)
(d)
(1) Stipulations and admissions;
(2) Disputed issues of fact;
(3) Disputed issues of law;
(4) Admissibility of any evidence;
(5) Hearing procedures including submission of oral or written direct testimony, conduct of cross-examination, and the opportunity for oral arguments;
(6) Any other matter which may expedite the hearing or aid in disposition of any issues raised therein.
(e)
(i) In the case of any adjudicatory hearing held pursuant to § 222.10(b)(1), be on the person filing a request under
(ii) In the case of any adjudicatory hearing held pursuant to § 223.2 or pursuant to part 226, be on the Environmental Protection Agency.
(2) The Presiding Officer shall have the duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of proceedings, and to maintain order. He shall have all powers necessary or appropriate to that end, including without limitation, the following:
(i) To administer oaths and affirmations;
(ii) To rule upon offers of proof and receive relevant evidence;
(iii) To regulate the course of the hearing and the conduct of the parties and their counsel;
(iv) To consider and rule upon all procedural and other motions appropriate to the proceedings; and
(v) To take any action authorized by these regulations and in conformance with law.
(3) Parties shall have the right to cross-examine a witness who appears at an adjudicatory hearing to the extent that such cross-examination is necessary or appropriate for a full disclosure of the facts. In multi-party proceedings the Presiding Officer may limit cross-examination to one party on each side if he is satisfied that the cross-examination by one party will adequately protect the interests of other parties.
(4) When a party will not be unfairly prejudiced thereby, the Presiding Officer may order all or part of the evidence to be submitted in written form.
(5) Rulings of the Presiding Officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters, shall be final and shall appear in the record.
(6) Interlocutory appeals may not be taken.
(7) Parties shall be presumed to have taken exception to an adverse ruling.
(8) The proceedings of all hearings shall be recorded by such means as the Presiding Officer may determine. The original transcript of the hearing shall be a part of the record and the sole official transcript. Copies of the transcript shall be available from the Environmental Protection Agency in accordance with 40 CFR part 2.
(9) The rules of evidence shall not apply.
(f)
(2) Within 20 days following submission of the Presiding Officer's proposed findings of fact, conclusions of law and recommendations, any party may submit written exceptions, no more than 30 pages in length, to such proposed findings, conclusions and recommendations and within 30 days following the submission of the Presiding Officer's proposed findings, conclusions and recommendations any party may file written comments, no more than 30 pages in length, on another party's exceptions. Within 45 days following the submission of the Presiding Officer's proposed findings, conclusions and recommendations, the Administrator or the Regional Administrator, as the case may be, shall make a determination with respect to all issues raised at such hearing and shall affirm, reverse or modify the previous or proposed determination, as the case may be. Notice of such determination shall set forth the determination for each such issue, shall briefly state the basis therefor and shall be given by mail to all parties to the adjudicatory hearing.
(a)(1) The Administrator delegates to the Environmental Appeals Board authority to issue final decisions in appeals filed under this part. An appeal directed to the Administrator, rather than to the Environmental Appeals Board, will not be considered. This delegation of authority to the Environmental Appeals Board does not preclude the Environmental Appeals Board from referring an appeal or a motion filed under this part to the Administrator for decision when the Environmental Appeals Board, in its discretion, deems it appropriate to do so. When an appeal or motion to referred to the Administrator, all parties shall be so notified and the rules in this section referring to the Environmental Appeals Board shall be interpreted as referring to the Administrator.
(2) Within 10 days following receipt of the determination of the Regional Administrator pursuant to paragraph (f)(2) of § 222.11, any party to an adjudicatory hearing held in accordance with § 222.11 may appeal such determination to the Environmental Appeals Board by filing a written notice of appeal, or the Environmental Appeals Board may, on its own initiative, review any prior determination.
(b) The notice of appeal shall be no more than 40 pages in length and shall contain:
(1) The name and address of the person filing the notice of appeal;
(2) A concise statement of the facts on which the person relies and appropriate citations to the record of the adjudicatory hearing;
(3) A concise statement of the legal basis on which the person relies;
(4) A concise statement setting forth the action which the person proposes that the Environmental Appeals Board take; and
(5) A certificate of service of the notice of appeal on all other parties to the adjudicatory hearing.
(c) The effective date of any determination made pursuant to paragraph (f)(2) of § 222.11 may be stayed by the Environmental Appeals Board pending final determination by it pursuant to this section upon the filing of a notice of appeal which satisfies the requirements of paragraph (b) of this section or upon initiation by the Environmental Appeals Board of review of any determination in the absence of such notice of appeal.
(d) Within 20 days following the filing of a notice of appeal in accordance with this section, any party to the adjudicatory hearing may file a written memorandum, no more than 40 pages in length, in response thereto.
(e) Within 45 days following the filing of a notice of appeal in accordance with this section, the Environmental Appeals Board shall render its final determination with respect to all issues raised in the appeal to the Environmental Appeals Board and shall affirm, reverse, or modify the previous determination and briefly state the basis for its determination.
(f) In accordance with 5 U.S.C. section 704, the filing of an appeal to the Environmental Appeals Board pursuant to this section shall be a prerequisite to judicial review of any determination to issue or impose conditions upon any permit, or to modify, revoke or suspend any permit, or to take any other -enforcement action, under this subchapter H.
In computing any period of time prescribed or allowed in this part, except unless otherwise provided, the day on which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or a legal holiday in which the Environmental Protection Agency is not open for business, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Intermediate Saturdays, Sundays and legal holidays shall be excluded from the computation when the period of time prescribed or allowed is seven days or less.
Secs. 102, 104, 107, 108, Marine Protection Research, and Sanctuaries Act of 1972, as amended (33 U.S.C. 1412, 1414, 1417, 1418)
(a) All special, interim, emergency and research permits shall be displayed on the vessel engaged in dumping and shall include the following:
(1) Name of permittee;
(2) Means of conveyance and methods and procedures for release of the materials to be dumped;
(3) The port through or from which such material will be transported for dumping;
(4) A description of relevant physical and chemical properties of the materials to be dumped;
(5) The quantity of the material to be dumped expressed in tons;
(6) The disposal site;
(7) The times at which the permitted dumping may occur and the effective date and expiration date of the permit;
(8) Special provisions which, after consultation with the Coast Guard, are deemed necessary for monitoring or surveillance of the transportation or dumping;
(9) Such monitoring relevant to the assessment of the impact of permitted dumping activities on the marine environment at the disposal site as the Administrator or Regional Administrator, as the case may be, determine to be necessary or appropriate; and
(10) Any other terms and conditions determined by the Administrator, or Regional Administrator, as the case may be, to be necessary or appropriate, including, without limitation, release procedures and requirements for the continued investigation or development of alternatives to ocean dumping.
(b) General permits shall contain such terms and conditions as the Administrator deems necessary or appropriate.
(c) Interim permits shall, in addition to the information required or permitted to be included in the permit pursuant to paragraph (a) of this section, include terms and conditions which satisfy the requirements of §§ 220.3(d) and 227.8.
(a) These rules of practice shall govern all proceedings under section 104(d) of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (33 U.S.C. 1414(d)), to revise, revoke or limit the terms and conditions of any permit issued pursuant to section 102 of the Act. Section 104(d) provides that “the Administrator * * * may limit or deny the issuance of permits, or he may alter or revoke partially or entirely the terms of permits issued by him under this title, for the transportation for dumping, or for the dumping, or both of specified materials or classes of materials, where he finds that such
(b) In the absence of specific provisions in these rules, and where appropriate, questions arising at any stage of the proceedings shall be resolved at the discretion of the Presiding Officer, the Regional Administrator, or the Administrator, as appropriate.
(a)
(1) The cumulative impact of the permittee's dumping activities or the aggregate impact of all dumping activities at the dump site designated in the permit should be categorized as Impact Category I, as defined in § 228.10(c)(1) of this subchapter; or
(2) There has been a change in circumstances relating to the management of the disposal site designated in the permit; or
(3) The dumping authorized by the permit would violate applicable water quality standards; or
(4) The dumping authorized by the permit can no longer be carried out consistent with the criteria set forth in parts 227 and 228.
(b)
(c)
(d)
(1) A brief description of the contents of the permit, as set forth in § 223.1;
(2) A description of the proposed revision, revocation, or limitation;
(3) A statement of the reason for such proposed revision, revocation, or limitation; and
(4) A statement that within thirty (30) days of the date of dissemination of the notice, any person may request a public hearing on the proposed revision, revocation or limitation.
(a)
(1) Identification of the person requesting the hearing and his interest in the proceeding;
(2) A statement of any objections to the proposed revision, revocation or limitation or to any facts or reasons identified as supporting such revision, revocation or limitation; and
(3) A statement of the issues which such person proposes to raise for consideration at such hearing.
(b)
(c)
(d)
(e)
(f)
(g)
Within ten (10) days following the receipt of the Administrator's or Regional Administrator's determination issued pursuant to § 223.4(g), any person who participated in the public hearing held pursuant to § 223.4 may request that an adjudicatory hearing be held for the purpose of reviewing such determination or any part thereof. Such request shall be submitted and disposed of, and any adjudicatory hearing convened shall be conducted in accordance with the procedures set forth in §§ 222.10 (a), (b), (d), and (e) and 222.11.
33 U.S.C. 1412 and 1418.
Each permittee named in a special, interim, emergency or research permit under section 102 of the Act and each person availing himself of the privilege conferred by a general permit, shall maintain complete records of the following information, which will be available for inspection by the Administrator, Regional Administrator, the Commandant of the U.S. Coast Guard, or their respective designees:
(a) The physical and chemical characteristics of the material dumped pursuant to the permit;
(b) The precise times and locations of dumping;
(c) Any other information required as a condition of a permit by the Administrator or the Regional Administrator, as the case may be.
(a)
(1) For each six-month period, if any, following the effective date of the permit;
(2) For any other period of less than six months ending on the expiration date of the permit; and
(3) As otherwise required in the conditions of the permit.
(b)
33 U.S.C. 1412 and 1418.
Applications and authorizations for Dredged Material Permits under section 103 of the Act for the transportation of dredged material for the purpose of dumping it in ocean waters will be evaluated by the U.S. Army Corps of Engineers in accordance with the criteria set forth in part 227 and processed in accordance with 33 CFR 209.120 with special attention to § 209.120(g)(17) and 33 CFR 209.145.
(a) The District Engineer shall send a copy of the public notice to the appropriate Regional Administrator, and set forth in writing all of the following information:
(1) The location of the proposed disposal site and its physical boundaries;
(2) A statement as to whether the site has been designated for use by the Administrator pursuant to section 102(c) of the Act;
(3) If the proposed disposal site has not been designated by the Administrator, a statement of the basis for the proposed determination why no previously designated site is feasible and a description of the characteristics of the proposed disposal site necessary for its designation pursuant to part 228 of this subchapter H;
(4) The known historical uses of the proposed disposal site;
(5) Existence and documented effects of other authorized dumpings that have been made in the dumping area (e.g., heavy metal background reading and organic carbon content);
(6) An estimate of the length of time during which disposal will continue at the proposed site;
(7) Characteristics and composition of the dredged material; and
(8) A statement concerning a preliminary determination of the need for and/or availability of an environmental impact statement.
(b) The Regional Administrator will within 15 days of the date the public notice and other information required to be submitted by paragraph (a) of § 225.2 are received by him, review the information submitted and request from the District Engineer any additional information he deems necessary or appropriate to evaluate the proposed dumping.
(c) Using the information submitted by the District Engineer, and any other information available to him, the Regional Administrator will within 15 days after receipt of all requested information, make an independent evaluation of the proposed dumping in accordance with the criteria and respond to the District Engineer pursuant to paragraph (d) or (e) of this section. The Regional Administrator may request an extension of this 15 day period to 30 days from the District Engineer.
(d) When the Regional Administrator determines that the proposed dumping will comply with the criteria, he will so inform the District Engineer in writing.
(e) When the Regional Administrator determines that the proposed dumping will not comply with the criteria he shall so inform the District Engineer in writing. In such cases, no Dredged Material Permit for such dumping shall be issued unless and until the provisions of § 225.3 are followed and the Administrator grants a waiver of the criteria pursuant to § 225.4.
(a) When a District Engineer's determination to issue a Dredged Material Permit for the dumping of dredged material into ocean waters has been rejected by a Regional Administrator upon application of the Criteria, the District Engineer may determine
(b) If the decision of the Chief of Engineers is that ocean dumping at the designated site is required because of the unavailability of feasible alternatives, he shall so certify and request that the Secretary of the Army seek a waiver from the Administrator of the Criteria or of the critical site designation in accordance with § 225.4.
The Administrator shall grant the requested waiver unless within 30 days of his receipt of the notice, certificate and request in accordance with paragraph (b) of § 225.3 he determines in accordance with this section that the proposed dumping will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Notice of the Administrator's final determination under this section shall be given to the Secretary of the Army.
33 U.S.C. 1412 and 1418.
(a) Section 102 of the Act requires that criteria for the issuance of ocean disposal permits be promulgated after consideration of the environmental effect of the proposed dumping operation, the need for ocean dumping, alternatives to ocean dumping, and the effect of the proposed action on esthetic, recreational and economic values and on other uses of the ocean. These parts 227 and 228 of this subchapter H together constitute the criteria established pursuant to section 102 of the Act. The decision of the Administrator, Regional Administrator or the District Engineer, as the case may be, to issue or deny a permit and to impose specific conditions on any permit issued will be based on an evaluation of the permit application pursuant to -the criteria set forth in this part 227 -and upon the requirements for disposal -site management pursuant to the cri-teria set forth in part 228 of this sub-chapter H.
(b) With respect to the criteria to be used in evaluating disposal of dredged materials, this section and subparts C, D, E, and G apply in their entirety. To determine whether the proposed dumping of dredged material complies with subpart B, only §§ 227.4, 227.5, 227.6, 227.9, 227.10 and 227.13 apply. An applicant for a permit to dump dredged material must comply with all of subparts C, D, E, G and applicable sections of B, to be deemed to have met the EPA criteria for dredged material dumping promulgated pursuant to section 102(a) of the Act. If, in any case, the Chief of Engineers finds that, in the disposition of dredged material, there is no economically feasible method or site available other than a dumping site, the utilization of which would result in noncompliance with the criteria established pursuant to subpart B relating to the effects of dumping or with the restrictions established pursuant to section 102(c) of the Act relating to critical areas, he shall so certify and request that the Secretary of the Army seek a waiver from the Administrator pursuant to part 225.
(c) The Criteria of this part 227 are established pursuant to section 102 of the Act and apply to the evaluation of proposed dumping of materials under title I of the Act. The Criteria of this part 227 deal with the evaluation of proposed dumping of materials on a case-by-case basis from information supplied by the applicant or otherwise available to EPA or the Corps of Engineers concerning the characteristics of the waste and other considerations relating to the proposed dumping.
(d) After consideration of the provisions of §§ 227.28 and 227.29, no permit will be issued when the dumping would result in a violation of applicable water quality standards.
(a) If the applicant satisfactorily demonstrates that the material proposed for ocean dumping satisfies the environmental impact criteria set forth in subpart B, a permit for ocean dumping will be issued unless:
(1) There is no need for the dumping, and alternative means of disposal are available, as determined in accordance with the criteria set forth in subpart C; or
(2) There are unacceptable adverse effects on esthetic, recreational or economic values as determined in accordance with the criteria set forth in subpart D; or
(3) There are unacceptable adverse effects on other uses of the ocean as determined in accordance with the criteria set forth in subpart E.
(b) If the material proposed for ocean dumping satisfies the environmental impact criteria set forth in subpart B, but the Administrator or the Regional Administrator, as the case may be, determines that any one of the considerations set forth in paragraph (a)(1), (2) or (3) of this section applies, he will deny the permit application; provided however, that he may issue an interim permit for ocean dumping pursuant to paragraph (d) of § 220.3 and subpart F of this part 227 when he determines that:
(1) The material proposed for ocean dumping does not contain any of the materials listed in § 227.5 or listed in § 227.6, except as trace contaminants; and
(2) In accordance with subpart C there is a need to ocean dump the material and no alternatives are available to such dumping; and
(3) The need for the dumping and the unavailability of alternatives, as determined in accordance with subpart C, are of greater significance to the public interest than the potential for adverse effect on esthetic, recreational or economic values, or on other uses of the ocean, as determined in accordance with subparts D and E, respectively.
If the material proposed for ocean dumping does not satisfy the environmental impact criteria of subpart B, the Administrator or the Regional Administrator, as the case may be, will deny the permit application; provided however, that he may issue an interim permit pursuant to paragraph (d) of § 220.3 and subpart F of this part 227 when he determines that:
(a) The material proposed for dumping does not contain any of the materials listed in § 227.6 except as trace contaminants, or any of the materials listed in § 227.5;
(b) In accordance with subpart C there is a need to ocean dump the material; and
(c) Any one of the following factors is of greater significance to the public interest than the potential for adverse impact on the marine environment, as determined in accordance with Subpart B:
(1) The need for the dumping, as determined in accordance with subpart C; or
(2) The adverse effects of denial of the permit on recreational or economic values as determined in accordance with subpart D; or
(3) The adverse effects of denial of the permit on other uses of the ocean, as determined in accordance with subpart E.
This subpart B sets specific environmental impact prohibitions, limits, and conditions for the dumping of materials into ocean waters. If the applicable prohibitions, limits, and conditions are satisfied, it is the determination of EPA that the proposed disposal will not unduly degrade or endanger the marine environment and that the disposal will present:
(a) No unacceptable adverse effects on human health and no significant damage to the resources of the marine environment;
(b) No unacceptable adverse effect on the marine ecosystem;
(c) No unacceptable adverse persistent or permanent effects due to the dumping of the particular volumes or concentrations of these materials; and
(d) No unacceptable adverse effect on the ocean for other uses as a result of direct environmental impact.
The ocean dumping of the following materials will not be approved by EPA or the Corps of Engineers under any circumstances:
(a) High-level radioactive wastes as defined in § 227.30;
(b) Materials in whatever form (including without limitation, solids, liquids, semi-liquids, gases or organisms) produced or used for radiological, chemical or biological warfare;
(c) Materials insufficiently described by the applicant in terms of their compositions and properties to permit application of the environmental impact criteria of this subpart B;
(d) Persistent inert synthetic or natural materials which may float or remain in suspension in the ocean in such a manner that they may interfere materially with fishing, navigation, or other legitimate uses of the ocean.
(a) Subject to the exclusions of paragraphs (f), (g) and (h) of this section, the ocean dumping, or transportation for dumping, of materials containing the following constituents as other than trace contaminants will not be approved on other than an emergency basis:
(1) Organohalogen compounds;
(2) Mercury and mercury compounds;
(3) Cadmium and cadmium compounds;
(4) Oil of any kind or in any form, including but not limited to petroleum, oil sludge, oil refuse, crude oil, fuel oil, heavy diesel oil, lubricating oils, hydraulic fluids, and any mixtures containing these, transported for the purpose of dumping insofar as these are not regulated under the FWPCA;
(5) Known carcinogens, mutagens, or teratogens or materials suspected to be carcinogens, mutagens, or teratogens by responsible scientific opinion.
(b) These constituents will be considered to be present as trace contaminants only when they are present in materials otherwise acceptable for ocean dumping in such forms and amounts in liquid, suspended particulate, and solid phases that the dumping of the materials will not cause sig-nificant undesirable effects, including -the possibility of danger associated -with their bioaccumulation in marine -organisms.
(c) The potential for significant undesirable effects due to the presence of these constituents shall be determined by application of results of bioassays on liquid, suspended particulate, and solid phases of wastes according to procedures acceptable to EPA, and for dredged material, acceptable to EPA and the Corps of Engineers. Materials shall be deemed environmentally acceptable for ocean dumping only when the following conditions are met:
(1) The liquid phase does not contain any of these constituents in concentrations which will exceed applicable marine water quality criteria after allowance for initial mixing; provided that mercury concentrations in the disposal site, after allowance for initial mixing, may exceed the average normal ambient concentrations of mercury in ocean waters at or near the dumping site which would be present in the absence of dumping, by not more than 50 percent; and
(2) Bioassay results on the suspended particulate phase of the waste do not indicate occurrence of significant mortality or significant adverse sublethal effects due to the dumping of wastes containing the constituents listed in paragraph (a) of this section. These bioassays shall be conducted with appropriate sensitive marine organisms as defined in § 227.27(c) using procedures for suspended particulate phase bioassays approved by EPA, or, for dredged material, approved by EPA and the Corps of Engineers. Procedures approved for bioassays under this section will require exposure of organisms for a sufficient period of time and under appropriate conditions to provide reasonable assurance, based on consideration of the statistical significance of effects at the 95 percent confidence level, that, when the materials are dumped, no significant undesirable effects will occur due to chronic toxicity of the constituents listed in paragraph (a) of this section; and
(3) Bioassay results on the solid phase of the wastes do not indicate occurrence of significant mortality or significant adverse sublethal effects due to the dumping of wastes containing the constituents listed in paragraph (a) of this section. These bioassays shall be conducted with appropriate sensitive benthic marine organisms using benthic bioassay procedures approved by EPA, or, for dredged material, approved by EPA and the Corps of Engineers. Procedures approved for bioassays under this section will require exposure of organisms for a sufficient period of time to provide reasonable assurance, based on considerations of statistical significance of effects at the 95 percent confidence level, that, when the materials are dumped, no significant undesirable effects will occur due either to chronic toxicity or to bioaccumulation of the constituents listed in paragraph (a) of this section; and
(4) For persistent organohalogens not included in the applicable marine water quality criteria, bioassay results on the liquid phase of the waste show that such compounds are not present -in concentrations large enough to -cause significant undesirable effects due -either to chronic toxicity or to bio-ac-cumu-la-tion in marine organisms after allowance for initial mixing.
(d) When the Administrator, Regional Administrator or District Engineer, as the case may be, has reasonable cause to believe that a material proposed for ocean dumping contains compounds identified as carcinogens,
(e) The criteria stated in paragraphs (c)(2) and (3) of this section will become mandatory as soon as announcement of the availability of acceptable procedures is made in the
(1) Mercury and its compounds are present in any solid phase of a material in concentrations less than 0.75 mg/kg, or less than 50 percent greater than the average total mercury content of natural sediments of similar lithologic characteristics as those at the disposal site; and
(2) Cadmium and its compounds are present in any solid phase of a material in concentrations less than 0.6 mg/kg, or less than 50 percent greater than the average total cadmium content of natural sediments of similar lithologic characteristics as those at the disposal site; and
(3) The total concentration of organohalogen constituents in the waste as transported for dumping is less than a concentration of such constituents known to be toxic to marine organisms. In calculating the concentration of organohalogens, the applicant shall consider that these constituents are all biologically available. The determination of the toxicity value will be based on existing scientific data or developed by the use of bioassays conducted in accordance with approved EPA procedures; and
(4) The total amounts of oils and greases as identified in paragraph (a)(4) of this section do not produce a visible surface sheen in an undisturbed water sample when added at a ratio of one part waste material to 100 parts of water.
(f) The prohibitions and limitations of this section do not apply to the constituents identified in paragraph (a) of this section when the applicant can demonstrate that such constituents are (1) present in the material only as chemical compounds or forms (e.g., inert insoluble solid materials) non-toxic to marine life and non-bioaccumulative in the marine environment upon disposal and thereafter, or (2) present in the material only as chemical compounds or forms which, at the time of dumping and thereafter, will be rapidly rendered non-toxic to marine life and non-bioaccumulative in the marine environment by chemical or biological degradation in the sea; provided they will not make edible marine organisms unpalatable; or will not endanger human health or that of domestic animals, fish, shellfish, or wildlife.
(g) The prohibitions and limitations of this section do not apply to the constituents identified in paragraph (a) of this section for the granting of research permits if the substances are rapidly rendered harmless by physical, chemical or biological processes in the sea; provided they will not make edible marine organisms unpalatable and will not endanger human health or that of domestic animals.
(h) The prohibitions and limitations of this section do not apply to the constituents identified in paragraph (a) of this section for the granting of permits for the transport of these substances for the purpose of incineration at sea if the applicant can demonstrate that the stack emissions consist of substances which are rapidly rendered harmless by physical, chemical or biological processes in the sea. Incinerator operations shall comply with requirements which
Materials containing the following constituents must meet the additional limitations specified in this section to be deemed acceptable for ocean dumping:
(a) Liquid waste constituents immiscible with or slightly soluble in seawater, such as benzene, xylene, carbon disulfide and toluene, may be dumped only when they are present in the waste in concentrations below their solubility limits in seawater. This provision does not apply to materials which may interact with ocean water to form insoluble materials;
(b) Radioactive materials, other than those prohibited by § 227.5, must be contained in accordance with the provisions of § 227.11 to prevent their direct dispersion or dilution in ocean waters;
(c) Wastes containing living organisms may not be dumped if the organisms present would endanger human health or that of domestic animals, fish, shellfish and wildlife by:
(1) Extending the range of biological pests, viruses, pathogenic microorganisms or other agents capable of infesting, infecting or extensively and permanently altering the normal populations of organisms;
(2) Degrading uninfected areas; or
(3) Introducing viable species not indigenous to an area.
(d) In the dumping of wastes of highly acidic or alkaline nature into the ocean, consideration shall be given to:
(1) The effects of any change in acidity or alkalinity of the water at the disposal site; and
(2) The potential for synergistic effects or for the formation of toxic compounds at or near the disposal site. Allowance may be made in the permit conditions for the capability of ocean waters to neutralize acid or alkaline wastes; provided, however, that dumping conditions must be such that the average total alkalinity or total acidity of the ocean water after allowance for initial mixing, as defined in § 227.29, may be changed, based on stoichiometric calculations, by no more than 10 percent during all dumping operations at a site to neutralize acid or alkaline wastes.
(e) Wastes containing biodegradable constituents, or constituents which consume oxygen in any fashion, may be dumped in the ocean only under conditions in which the dissolved oxygen after allowance for initial mixing, as defined in § 227.29, will not be depressed by more than 25 percent below the normally anticipated ambient conditions in the disposal area at the time of dumping.
No wastes will be deemed acceptable for ocean dumping unless such wastes can be dumped so as not to exceed the limiting permissible concentration as defined in § 227.27;
Substances which may damage the ocean environment due to the quantities in which they are dumped, or which may seriously reduce amenities, may be dumped only when the quantities to be dumped at a single time and place are controlled to prevent long-term damage to the environment or to amenities.
(a) Wastes which may present a serious obstacle to fishing or navigation may be dumped only at disposal sites and under conditions which will insure no unacceptable interference with fishing or navigation.
(b) Wastes which may present a hazard to shorelines or beaches may be dumped only at sites and under conditions which will insure no unacceptable danger to shorelines or beaches.
(a) Wastes containerized solely for transport to the dumping site and expected to rupture or leak on impact or shortly thereafter must meet the appropriate requirements of §§ 227.6, 227.7, 227.8, 227.9, and 227.10.
(b) Other containerized wastes will be approved for dumping only under the following conditions:
(1) The materials to be disposed of decay, decompose or radiodecay to environmentally innocuous materials within the life expectancy of the containers and/or their inert matrix; and
(2) Materials to be dumped are present in such quantities and are of such nature that only short-term localized adverse effects will occur should the containers rupture at any time; and
(3) Containers are dumped at depths and locations where they will cause no threat to navigation, fishing, shorelines, or beaches.
(a) Solid wastes consisting of inert natural minerals or materials compatible with the ocean environment may be generally approved for ocean dumping provided they are insoluble above the applicable trace or limiting permissible concentrations and are rapidly and completely settleable, and they are of a particle size and density that they would be deposited or rapidly dispersed without damage to benthic, demersal, or pelagic biota.
(b) Persistent inert synthetic or natural materials which may float or remain in suspension in the ocean as prohibited in paragraph (d) of § 227.5 may be dumped in the ocean only when they have been processed in such a fashion that they will sink to the bottom and remain in place.
(a) Dredged materials are bottom sediments or materials that have been dredged or excavated from the navigable waters of the United States, and their disposal into ocean waters is regulated by the U.S. Army Corps of Engineers using the criteria of applicable sections of parts 227 and 228. Dredged material consists primarily of natural sediments or materials which may be contaminated by municipal or industrial wastes or by runoff from terrestrial sources such as agricultural lands.
(b) Dredged material which meets the criteria set forth in the following paragraphs (b)(1), (2), or (3) of this section is environmentally acceptable for ocean dumping without further testing under this section:
(1) Dredged material is composed predominantly of sand, gravel, rock, or any other naturally occurring bottom material with particle sizes larger than silt, and the material is found in areas of high current or wave energy such as streams with large bed loads or coastal areas with shifting bars and channels; or
(2) Dredged material is for beach nourishment or restoration and is composed predominantly of sand, gravel or shell with particle sizes compatible with material on the receiving beaches; or
(3)
(ii) The site from which the material proposed for dumping is to be taken is far removed from known existing and historical sources of pollution so as to provide reasonable assurance that such material has not been contaminated by such pollution.
(c) When dredged material proposed for ocean dumping does not meet the criteria of paragraph (b) of this section, further testing of the liquid, suspended particulate, and solid phases, as defined in § 227.32, is required. Based on the results of such testing, dredged material can be considered to be environmentally acceptable for ocean dumping only under the following conditions:
(1) The material is in compliance with the requirements of § 227.6; and
(2)(i) All major constituents of the liquid phase are in compliance with the applicable marine water quality criteria after allowance for initial mixing; or
(ii) When the liquid phase contains major constituents not included in the applicable marine water quality criteria, or there is reason to suspect synergistic effects of certain contaminants, bioassays on the liquid phase of
(3) Bioassays on the suspended particulate and solid phases show that it can be discharged so as not to exceed the limiting permissible concentration as defined in paragraph (b) of § 227.27.
(d) For the purposes of paragraph (c)(2) of this section, major constituents to be analyzed in the liquid phase are those deemed critical by the District Engineer, after evaluating and considering any comments received from the Regional Administrator, and considering known sources of discharges in the area.
This subpart C states the basis on which an evaluation will be made of the need for ocean dumping, and alternatives to ocean dumping. The nature of these factors does not permit the promulgation of specific quantitative criteria of each permit application. These factors will therefore be evaluated if applicable for each proposed dumping on an individual basis using the guidelines specified in this subpart C.
The need for dumping will be determined by evaluation of the following factors:
(a) Degree of treatment useful and feasible for the waste to be dumped, and whether or not the waste material has been or will be treated to this degree before dumping;
(b) Raw materials and manufacturing or other processes resulting in the waste, and whether or not these materials or processes are essential to the provision of the applicant's goods or services, or if other less polluting materials or processes could be used;
(c) The relative environmental risks, impact and cost for ocean dumping as opposed to other feasible alternatives including but not limited to:
(1) Land fill;
(2) Well injection;
(3) Incineration;
(4) Spread of material over open ground;
(5) Recycling of material for reuse;
(6) Additional biological, chemical, or physical treatment of intermediate or final waste streams;
(7) Storage.
(d) Irreversible or irretrievable consequences of the use of alternatives to ocean dumping.
(a) A need for ocean dumping will be considered to have been demonstrated when a thorough evaluation of the factors listed in § 227.15 has been made, and the Administrator, Regional Administrator or District Engineer, as the case may be, has determined that the following conditions exist where applicable:
(1) There are no practicable improvements which can be made in process technology or in overall waste treatment to reduce the adverse impacts of the waste on the total environment;
(2) There are no practicable alternative locations and methods of disposal or recycling available, including without limitation, storage until treatment facilities are completed, which have less adverse environmental impact or potential risk to other parts of the environment than ocean dumping.
(b) For purposes of paragraph (a) of this section, waste treatment or improvements in processes and alternative methods of disposal are practicable when they are available at reasonable incremental cost and energy expenditures, which need not be competitive with the costs of ocean dumping, taking into account the environmental benefits derived from such activity, including the relative adverse environmental impacts associated with the use of alternatives to ocean dumping.
(c) The duration of permits issued under subchapter H and other terms and conditions imposed in those permits shall be determined after taking into account the factors set forth in this section. Notwithstanding compliance with subparts B, D, and E of this part 227 permittees may, on the basis
(a) The impact of dumping on esthetic, recreational and economic values will be evaluated on an individual basis using the following considerations:
(1) Potential for affecting recreational use and values of ocean waters, inshore waters, beaches, or shorelines;
(2) Potential for affecting the recreational and commercial values of living marine resources.
(b) For all proposed dumping, full consideration will be given to such nonquantifiable aspects of esthetic, recreational and economic impact as:
(1) Responsible public concern for the consequences of the proposed dumping;
(2) Consequences of not authorizing the dumping including without limitation, the impact on esthetic, recreational and economic values with respect to the municipalities and industries involved.
The assessment of the potential for impacts on esthetic, recreational and economic values will be based on an evaluation of the appropriate characteristics of the material to be dumped, allowing for conservative rates of dilution, dispersion, and biochemical degradation during movement of the materials from a disposal site to an area of significant recreational or commercial value. The following specific factors will be considered in making such an assessment:
(a) Nature and extent of present and potential recreational and commercial use of areas which might be affected by the proposed dumping;
(b) Existing water quality, and nature and extent of disposal activities, in the areas which might be affected by the proposed dumping;
(c) Applicable water quality standards;
(d) Visible characteristics of the materials (e.g., color, suspended particulates) which result in an unacceptable estetic nuisance in recreational areas;
(e) Presence in the material of pathogenic organisms which may cause a public health hazard either directly or through contamination of fisheries or shellfisheries;
(f) Presence in the material of toxic chemical constituents released in volumes which may affect humans directly;
(g) Presence in the material of chemical constituents which may be bioaccumulated or persistent and may have an adverse effect on humans directly or through food chain interactions;
(h) Presence in the material of any constituents which might significantly affect living marine resources of recreational or commercial value.
An overall assessment of the proposed dumping and possible alternative methods of disposal or recycling will be made based on the effect on esthetic, recreational and economic values based on the factors set forth in this subpart D, including where applicable, enhancement of these values, and the results of the assessment will be expressed, where possible, on a quantitative basis, such as percentage of a resource lost, reduction in use days of recreational areas, or dollars lost in commercial fishery profits or the profitability of other commercial enterprises.
(a) Based on current state of the art, consideration must be given to any possible long-range effects of even the most innocuous substances when dumped in the ocean on a continuing basis. Such a consideration is made in evaluating the relationship of each proposed disposal activity in relationship to its potential for long-range impact on other uses of the ocean.
(b) An evaluation will be made on an individual basis for each proposed dumping of material of the potential for effects on uses of the ocean for purposes other than material disposal. The factors to be considered in this evaluation include those stated in subpart D, but the evaluation of this subpart E will be based on the impact of the proposed dumping on specific uses of the ocean rather than on overall esthetic, recreational and economic values.
An appraisal will be made of the nature and extent of existing and potential uses of the disposal site itself and of any areas which might reasonably be expected to be affected by the proposed dumping, and a quantitative and qualitative evaluation made, where feasible, of the impact of the proposed dumping on each use. The uses considered shall include, but not be limited to:
(a) Commercial fishing in open ocean areas;
(b) Commercial fishing in coastal areas;
(c) Commercial fishing in estuarine areas;
(d) Recreational fishing in open ocean areas;
(e) Recreational fishing in coastal areas;
(f) Recreational fishing in estuarine areas;
(g) Recreational use of shorelines and beaches;
(h) Commercial navigation;
(i) Recreational navigation;
(j) Actual or anticipated exploitation of living marine resources;
(k) Actual or anticipated exploitation of non-living resources, including without limitation, sand and gravel places and other mineral deposits, oil and gas exploration and development and offshore marine terminal or other structure development; and
(l) Scientific research and study.
The assessment of impact on other uses of the ocean will consider both temporary and long-range effects within the state of the art, but particular emphasis will be placed on any irreversible or irretrievable commitment of resources that would result from the proposed dumping.
Each interim permit issued under section 102 of the Act will include a requirement for the development and implementation, as soon as practicable, of a plan which requires, at the discretion of the Administrator or Regional Administrator, as the case may be, either:
(a) Elimination of ocean disposal of the waste, or
(b) Bringing the waste into compliance with all the criteria for acceptable ocean disposal.
A plan developed pursuant to this subpart F must include an environmental assessment of the proposed action, including without limitation:
(a) Description of the proposed action;
(b) A thorough review of the actual need for dumping;
(c) Environmental impact of the proposed action;
(d) Adverse impacts which cannot be avoided should the proposal be implemented;
(e) Alternatives to the proposed action;
(f) Relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity;
(g) Irreversible and irretrievable commitments of resources which would
(h) A discussion of problems and objections raised by other Federal, State and local agencies and by interested persons in the review process.
In addition to the environmental assessment required by § 227.24, a plan developed pursuant to this subpart F must include a schedule for eliminating ocean dumping or bringing the wastes into compliance with the environmental impact criteria of subpart B, including without limitation, the following:
(a) If the waste is treated to the degree necessary to bring it into compliance with the ocean dumping criteria, the applicant should provide a description of the treatment and a scheduled program for treatment and a subsequent analysis of treated material to prove the effectiveness of the process.
(b) If treatment cannot be effected by post-process techniques the applicant should, determining the offending constituents, examine his raw materials and his total process to determine the origin of the pollutant. If the offending constituents are found in the raw material the applicant should consider a new supplier and provide an analysis of the new material to prove compliance. Raw materials are to include all water used in the process. Water from municipal sources complying with drinking water standards is acceptable. Water from other sources such as private wells should be analyzed for contaminants. Water that has been used in the process should be considered for treatment and recycling as an additional source of process water.
(c) If offending constituents are a result of the process, the applicant should investigate and describe the source of the constituents. A report of this information will be submitted to EPA and the applicant will then submit a proposal describing possible alternatives to the existing process or processes and level of cost and effectiveness.
(d) If an acceptable alternative to ocean dumping or additional control technology is required, a schedule and documentation for implementation of the alternative or approved control process shall be submitted and shall include, without limitation:
(1) Engineering plan;
(2) Financing approval;
(3) Starting date for change;
(4) Completion date;
(5) Operation starting date.
(e) If an acceptable alternative does not exist at the time the application is submitted, the applicant will submit an acceptable in-house research program or employ a competent research institution to study the problem. The program of research must be approved by the Administrator or Regional Administrator, as the case may be, before the initiation of the research. The schedule and documentation for implementation of a research program will include, without limitation:
(1) Approaches;
(2) Experimental design;
(3) Starting date;
(4) Reporting intervals;
(5) Proposed completion date;
(6) Date for submission of final -report.
Implementation of each phase of a plan shall be initiated as soon as it -is approved by the Administrator or -Regional Administrator, as the case may be.
(a) The limiting permissible concentration of the liquid phase of a material is:
(1) That concentration of a constituent which, after allowance for initial mixing as provided in § 227.29, does not exceed applicable marine water quality criteria; or, when there are no applicable marine water quality criteria,
(2) That concentration of waste or dredged material in the receiving water which, after allowance for initial mixing, as specified in § 227.29, will not exceed a toxicity threshold defined as 0.01 of a concentration shown to be acutely toxic to appropriate sensitive marine organisms in a bioassay carried
(3) When there is reasonable scientific evidence on a specific waste material to justify the use of an application factor other than 0.01 as specified in paragraph (a)(2) of this section, such alternative application factor shall be used in calculating the LPC.
(b) The limiting permissible concentration of the suspended particulate and solid phases of a material means that concentration which will not cause unreasonable acute or chronic toxicity or other sublethal adverse effects based on bioassay results using appropriate sensitive marine organisms in the case of the suspended particulate phase, or appropriate sensitive benthic marine organisms in the case of the solid phase; and which will not cause accumulation of toxic materials in the human food chain. Suspended particulate phase bioaccumulation testing is not required. These bioassays are to be conducted in accordance with procedures approved by EPA, or, in the case of dredged material, approved by EPA and the Corps of Engineers.
(c)
(d)
The release zone is the area swept out by the locus of points constantly 100 meters from the perimeter of the conveyance engaged in dumping activities, beginning at the first moment in which dumping is scheduled to occur and ending at the last moment in which dumping is scheduled to occur. No release zone shall exceed the total surface area of the dumpsite.
(a) Initial mixing is defined to be that dispersion or diffusion of liquid, suspended particulate, and solid phases of a waste which occurs within four hours after dumping. The limiting permissible concentration shall not be exceeded beyond the boundaries of the disposal site during initial mixing, and shall not be exceeded at any point in the marine environment after initial mixing. The maximum concentration of the liquid, suspended particulate, and solid phases of a dumped material after initial mixing shall be estimated by one of these methods, in order of preference:
(1) When field data on the proposed dumping are adequate to predict initial dispersion and diffusion of the waste, these shall be used, if necessary, in
(2) When field data on the dispersion and diffusion of a waste of characteristics similar to that proposed for discharge are available, these shall be used in conjunction with an appropriate mathematical model acceptable to EPA or the District Engineer, as appropriate.
(3) When no field data are available, theoretical oceanic turbulent diffusion relationships may be applied to known characteristics of the waste and the disposal site.
(b) When no other means of estimation are feasible.
(1) The liquid and suspended particulate phases of the dumped waste may be assumed to be evenly distributed after four hours over a column of water bounded on the surface by the release zone and extending to the ocean floor, thermocline, or halocline if one exists, or to a depth of 20 meters, whichever is shallower, and
(2) The solid phase of a dumped waste may be assumed to settle rapidly to the ocean bottom and to be distributed evenly over the ocean bottom in an area equal to that of the release zone as defined in § 227.28.
(c) When there is reasonable scientific evidence to demonstrate that other methods of estimating a reasonable allowance for initial mixing are appropriate for a specific material, such methods may be used with the concurrence of EPA after appropriate scientific review.
High-level radioactive waste means the aqueous waste resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated waste from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuels or irradiated fuel from nuclear power reactors.
Applicable marine water quality criteria means the criteria given for marine waters in the EPA publication “Quality Criteria for Water” as published in 1976 and amended by subsequent supplements or additions.
(a) For the purposes of these regulations, the liquid phase of a material, subject to the exclusions of paragraph (b) of this section, is the supernatant remaining after one hour undisturbed settling, after centrifugation and filtration through a 0.45 micron filter. The suspended particulate phase is the supernatant as obtained above prior to centrifugation and filtration. The solid phase includes all material settling to the bottom in one hour. Settling shall be conducted according to procedures approved by EPA.
(b) For dredged material, other material containing large proportions of insoluble matter, materials which may interact with ocean water to form insoluble matter or new toxic compounds, or materials which may release toxic compounds upon deposition, the Administrator, Regional Administrator, or the District Engineer, as the case may be, may require that the separation of liquid, suspended particulate, and solid phases of the material be performed upon a mixture of the waste with ocean water rather than on the material itself. In such cases the following procedures shall be used:
(1) For dredged material, the liquid phase is considered to be the centrifuged and 0.45 micron filtered supernatant remaining after one hour undisturbed settling of the mixture resulting from a vigorous 30-minute agitation of one part bottom sediment from the dredging site with four parts water (vol/vol) collected from the dredging site or from the disposal site, as appropriate for the type of dredging operation. The suspended particulate phase is the supernatant as obtained above prior to centrifugation and filtration. The solid phase is considered to be all material settling to the bottom within one hour. Settling shall be conducted by procedures approved by EPA and the Corps of Engineers.
(2) For other materials, the proportion of ocean water used shall be the minimum amount necessary to produce the anticipated effect (e.g., complete neutralization of an acid or alkaline
33 U.S.C. 1412 and 1418.
The criteria of this part 228 are established pursuant to section 102 of the Act and apply to the evaluation of proposed ocean dumping under title I of the Act. The criteria of this part 228 deal with the evaluation of the proposed dumping of material in ocean waters in relation to continuing requirements for effective management of ocean disposal sites to prevent unreasonable degradation of the marine environment from all wastes being dumped in the ocean. This part 228 is applicable to dredged material disposal sites only as specified in §§ 228.4(e), 228.9, and 228.12.
(a) The term
(b) The term
(c) The term
(d) The term
(e) The term
(f)
(g)
(h)
(a) Management of a site consists of regulating times, rates, and methods of disposal and quantities and types of materials disposed of; developing and maintaining effective ambient monitoring programs for the site; conducting disposal site evaluation and designation studies; and recommending modifications in site use and/or designation (e.g., termination of use of the site for general use or for disposal of specific wastes).
(b) Each site, upon interim or final designation, will be assigned to either an EPA Regional office or to EPA Headquarters for management. These designations will be consistent with the delegation of authority in § 220.4. The designated management authority is fully responsible for all aspects of the management of sites within the general requirements specified in § 220.4 and this section. Specific requirements for meeting the management responsibilities assigned to the designated management authority for each site are outlined in §§ 228.5 and 228.6.
(a)
(b)
(c)
(d)
(e)
(i) Baseline or trend assessment requirements may be developed on a case-by-case basis from the results of research, including that now in progress by the Corps of Engineers.
(ii) An environmental impact assessment for all sites within a particular geographic area may be prepared based on complete disposal site designation or evaluation studies on a typical site or sites in that area. In such cases, sufficient studies to demonstrate the generic similarity of all sites within such a geographic area will be conducted.
(2) In those cases where a recommended disposal site has not been designated by the Administrator, or where it is not feasible to utilize a recommended disposal site that has been designated by the Administrator, the District Engineer shall, in consultation with EPA, select a site in accordance with the requirements of §§ 228.5 and 228.6(a). Concurrence by EPA in permits issued for the use of such site for the dumping of dredged material at the site will constitute EPA approval of the use of the site for dredged material disposal only.
(3) Sites designated for the ocean dumping of dredged material in accordance with the procedures of paragraph (e) (1) or (2) of this section shall be used only for the ocean dumping of dredged material under permits issued by the U.S. Army Corps of Engineers.
(a) The dumping of materials into the ocean will be permitted only at sites or in areas selected to minimize the interference of disposal activities with other activities in the marine environment, particularly avoiding areas of existing fisheries or shellfisheries, and regions of heavy commercial or recreational navigation.
(b) Locations and boundaries of disposal sites will be so chosen that temporary perturbations in water quality or other environmental conditions during initial mixing caused by disposal operations anywhere within the site can be expected to be reduced to normal ambient seawater levels or to undetectable contaminant concentrations or effects before reaching any beach, shoreline, marine sanctuary, or known geographically limited fishery or shellfishery.
(c) If at any time during or after disposal site evaluation studies, it is determined that existing disposal sites presently approved on an interim basis for ocean dumping do not meet the criteria for site selection set forth in §§ 228.5 through 228.6, the use of such sites will be terminated as soon as suitable alternate disposal sites can be designated.
(d) The sizes of ocean disposal sites will be limited in order to localize for identification and control any immediate adverse impacts and permit the implementation of effective monitoring and surveilance programs to prevent adverse long-range impacts. The size, configuration, and location of any disposal site will be determined as a part of the disposal site evaluation or designation study.
(e) EPA will, wherever feasible, designate ocean dumping sites beyond the edge of the continental shelf and other such sites that have been historically used.
(a) In the selection of disposal sites, in addition to other necessary or appropriate factors determined by the Administrator, the following factors will be considered:
(1) Geographical position, depth of water, bottom topography and distance from coast;
(2) Location in relation to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or -juvenile phases;
(3) Location in relation to beaches and other amenity areas;
(4) Types and quantities of wastes proposed to be disposed of, and proposed methods of release, including methods of packing the waste, if any;
(5) Feasibility of surveillance and monitoring;
(6) Dispersal, horizontal transport and vertical mixing characteristics of the area, including prevailing current direction and velocity, if any;
(7) Existence and effects of current and previous discharges and dump-ing in the area (including cumulative -effects);
(8) Interference with shipping, fishing, recreation, mineral extraction, desalination, fish and shellfish culture, areas of special scientific importance and other legitimate uses of the ocean;
(9) The existing water quality and ecology of the site as determined by available data or by trend assessment or baseline surveys;
(10) Potentiality for the development or recruitment of nuisance species in the disposal site;
(11) Existence at or in close proximity to the site of any significant natural or cultural features of historical importance.
(b) The results of a disposal site evaluation and/or designation study based on the criteria stated in paragraphs (b)(1) through (11) of this section will be presented in support of the site designation promulgation as an environmental assessment of the impact of the use of the site for disposal, and will be used in the preparation of an environmental impact statement for each site where such a statement is required by EPA policy. By publication of a notice in accordance with this part 228, an environmental impact statement, in draft form, will be made available for public comment not later than the time of publication of the site designation as proposed rulemaking, and a final EIS will be made available at the time of final rulemaking.
Where necessary, disposal site use will be regulated by setting limitations on times of dumping and rates of discharge, and establishing a disposal site monitoring program.
Limitations as to time for and rates of dumping may be stated as part of the promulgation of site designation. The times and the quantities of permitted material disposal will be regulated by the EPA management authority so that the limits for the site as specified in the site designation are not exceeded. This will be accomplished by the denial of permits for the disposal of some materials, by the imposition of appropriate conditions on other permits and, if necessary, the designation of new disposal sites under the procedures of § 228.4. In no case may the total volume of material disposed of at any site under special or interim permits cause the concentration of the total materials or any constituent of any of the materials being disposed of at the site to exceed limits specified in the site designation.
(a) The monitoring program, if deemed necessary by the Regional Administrator or the District Engineer, as appropriate, may include baseline or trend assessment surveys by EPA, NOAA, other Federal agencies, or contractors, special studies by permittees, and the analysis and interpretation of data from remote or automatic sampling and/or sensing devices. The primary purpose of the monitoring program is to evaluate the impact of disposal on the marine environment by referencing the monitoring results to a set of baseline conditions. When disposal sites are being used on a continuing basis, such programs may consist of the following components:
(1) Trend assessment surveys conducted at intervals frequent enough to assess the extent and trends of environmental impact. Until survey data or other information are adequate to show that changes in frequency or scope are necessary or desirable, trend assessment and baseline surveys should generally conform to the applicable -requirements of § 228.13. These sur-veys shall be the responsibility of the -Federal government.
(2) Special studies conducted by the permittee to identify immediate and
(b) These surveys may be supplemented, where feasible and useful, by data collected from the use of automatic sampling buoys, satellites or in situ platforms, and from experimental programs.
(c) EPA will require the full participation of permittees, and encourage the full participation of other Federal and State and local agencies in the development and implementation of disposal site monitoring programs. The monitoring and research programs presently supported by permittees may be incorporated into the overall monitoring program insofar as feasible.
(a) Impact of the disposal at each site designated under section 102 of the Act will be evaluated periodically and a report will be submitted as appropriate as part of the Annual Report to Congress. Such reports will be prepared by or under the direction of the EPA management authority for a specific site and will be based on an evaluation of all data available from baseline and trend assessment surveys, monitoring surveys, and other data pertinent to conditions at and near a site.
(b) The following types of effects, in addition to other necessary or appropriate considerations, will be considered in determining to what extent the marine environment has been impacted by materials disposed of at an ocean disposal site:
(1) Movement of materials into estuaries or marine sanctuaries, or onto oceanfront beaches, or shorelines;
(2) Movement of materials toward productive fishery or shellfishery areas;
(3) Absence from the disposal site of pollution-sensitive biota characteristic of the general area;
(4) Progressive, non-seasonal, changes in water quality or sediment composition at the disposal site, when these changes are attributable to materials disposed of at the site;
(5) Progressive, non-seasonal, changes in composition or numbers of pelagic, demersal, or benthic biota at or near the disposal site, when these changes can be attributed to the effects of materials disposed of at the site;
(6) Accumulation of material constituents (including without limitation, human pathogens) in marine biota at or near the site.
(c) The determination of the overall severity of disposal at the site on the marine environment, including without limitation, the disposal site and adjacent areas, will be based on the evaluation of the entire body of pertinent data using appropriate methods of data analysis for the quantity and type of data available. Impacts will be categorized according to the overall condition of the environment of the disposal site and adjacent areas based on the determination by the EPA management authority assessing the nature and extent of the effects identified in paragraph (b) of this section in addition to other necessary or appropriate considerations. The following categories shall be used:
(1)
(i) There is identifiable progressive movement or accumulation, in detectable concentrations above normal ambient values, of any waste or waste constituent from the disposal site within 12 nautical miles of any shoreline, marine sanctuary designated under title III of the Act, or critical area designated under section 102(c) of the Act; or
(ii) The biota, sediments, or water column of the disposal site, or of any area outside the disposal site where any waste or waste constituent from the disposal site is present in detectable concentrations above normal ambient values, are adversely affected by the toxicity of such waste or waste constituent to the extent that there are statistically significant decreases in the populations of valuable commercial or recreational species, or of specific species of biota essential to the propagation of such species, within the disposal site and such other area as compared to populations of the same organisms in comparable locations outside such site and area; or
(iii) Solid waste material disposed of at the site has accumulated at the site or in areas adjacent to it, to such an extent that major uses of the site or of adjacent areas are significantly impaired and the Federal or State agency responsible for regulating such uses certifies that such significant impairment has occurred and states in its certificate the basis for its determination of such impairment; or
(iv) There are adverse effects on the taste or odor of valuable commercial or recreational species as a result of disposal activities; or
(v) When any toxic waste, toxic waste constituent, or toxic byproduct of waste interaction, is consistently identified in toxic concentrations above normal ambient values outside the disposal site more than 4 hours after disposal.
(2)
(a) Modifications in disposal site use which involve the withdrawal of designated disposal sites from use or permanent changes in the total specified quantities or types of wastes permitted to be discharged to a specific disposal site will be made through promulgation of an amendment to the disposal site designation set forth in this part 228 and will be based on the results of the analyses of impact described in § 228.10 or upon changed circumstances concerning use of the site.
(b) Modifications in disposal site use promulgated pursuant to paragraph (a) of this section shall not automatically modify conditions of any outstanding permit issued pursuant to this subchapter H, and provided further that unless the EPA management authority for such site modifies, revokes or suspends such permit or any of the terms or conditions of such permit in accordance with the provisions of § 232.2 based on the results of impact analyses as described in § 228.10 or upon changed circumstances concerning use of the site, such permit will remain in force until its expiration date.
(c) When the EPA management authority determines that activities at a disposal site have placed the site in Impact Category I, the Administrator or the Regional Administrator, as the case may be, shall place such limitations on the use of the site as are necessary to reduce the impacts to acceptable levels.
(d) The determination of the Administrator as to whether to terminate or limit use of a disposal site will be based on the impact of disposal at the site itself and on the Criteria.
The purpose of a baseline or trend assessment survey is to determine the physical, chemical, geological, and biological structure of a proposed or existing disposal site at the time of the survey. A baseline or trend assessment survey is to be regarded as a comprehensive synoptic and representative picture of existing conditions; each such survey is to be planned as part -of a continual monitoring program through which changes in conditions at a disposal site can be documented and assessed. Surveys will be planned in coordination with the ongoing programs of NOAA and other Federal, State, local, or private agencies with missions in the marine environment. The field survey data collection phase of a disposal site evaluation or designation study shall be planned and conducted to obtain a body of information both representative of the site at the time of study and obtained by techniques reproducible in precision and accuracy in future studies. A full plan of study which will provide a record of sampling, analytical, and data reduction procedures must be developed, documented and approved by the EPA management authority. Plans for all surveys which will produce information to be used in the preparation of environmental impact statements will be approved by the Administrator or his designee. This plan of study also shall be
(a)
(1) Where disposal sites are near large riverine inflows to the ocean, surveys will be done with due regard for the seasonal variation in river flow. In some cases several surveys at various river flows may be necessary before a site can be approved.
(2) When initial surveys show that seasonal variation is not significant and surveys at greater than seasonable intervals are adequate for characterizing a site, resurveys shall be carried out in climatic conditions as similar to those of the original surveys as possible, particularly in depths less than 200 meters.
(b)
(c)
(d)
(i) At one station near the center of the disposal site, samples of the water column shall be taken for the analysis of the following parameters: Mercury, cadmium, copper, chromium, zinc, lead, arsenic, selenium, vanadium, beryllium, nickel, pesticides, petroleum hydrocarbons, and persistent organoha--logens. These samples shall be preserved for subsequent analysis by or under the direct supervision of EPA laboratories in accordance with the approved plan of study.
(ii) These parameters are the basic requirements for all sites. For the evaluation of any specific disposal site additional measurements may be required, depending on the present or intended use of the site. Additional parameters may be selected based on the materials likely to be in wastes dumped at the site, and on parameters likely to be affected by constituents of such wastes. Analysis for other constituents characteristic of wastes discharged to a particular disposal site, or of the impact of such wastes on water quality, will be included in accordance with the approved plan of study.
(2)
(i) Surface, below interference from surface waves;
(ii) Middle of the surface layer;
(iii) Bottom of the surface layer;
(iv) Middle of the thermocline or halocline, or both if present;
(v) Near the top of the stable layer beneath a thermocline or halocline;
(vi) Near the middle of a stable layer;
(vii) As near the bottom as feasible;
(viii) Near the center of any zone showing pronounced biological activity or lack thereof.
(3)
(e)
(i) At each station sampling may consist of core samples, grab samples, dredge samples, trawls, and bottom photography or television, where available and feasible, depending on the nature of the bottom and the type of disposal site. Each type of sampling shall be replicated sufficiently to obtain a representative set of samples. The minimum numbers of replicates of successful samples at each continental shelf station for each type of device mentioned above are as follows:
(ii) Selection of bottom stations will be based to a large extent on the bottom topography and hydrography as determined by the bathymetric survey. On the continental shelf, where the bottom has no significant discontinuities, a bottom station density of at least three times the water column stations is recommended, depending on the type of site being evaluated. Where there are significant differences in bottom topography, additional stations shall be occupied near the discontinuity and on each side of it. Beyond the continental shelf, lesser densities may be used.
(2)
(3)
(i) At several stations near the center of the disposal site, samples of sediments shall be taken for the analysis of the following parameters: Mercury, cadmium, copper, chromium, zinc, lead, arsenic, selenium, vanadium, beryllium, nickel, pesticides, persistent organohalogens, and petroleum hydrocarbons. These samples shall be preserved for subsequent analysis by or under the direct supervision of EPA laboratories in accordance with the approved plan of study.
(ii) These parameters are the basic requirements for all sites. For the evaluation of any specific disposal site additional measurements may be required, depending on the present or intended use of the site. Additional parameters may be selected based on the materials likely to be in wastes dumped at the site, and on parameters likely to be affected by constituents of such wastes. Such additional parameters will be selected by the EPA management authority.
(4)
(i) A predominant species of demersal fish;
(ii) The most abundant macro-in-faunal species; and
(iii) A dominant epifaunal species, with particular preference for a species of economic importance.
(f)
(i)
(ii)
(2)
(3)
(g)
(h)
(a)(1) The sites identified in this section are approved for dumping the indicated materials on an interim basis pending completion of baseline or trend assessment surveys and final designation or termination of use. Unless otherwise specifically provided in the entry for a particular site, such interim use sites are available indefinitely pending completion of the present studies and determination of the need for the continuing use of these sites, the completion of any necessary studies, and evaluation of their suitability. Designation studies for particular sites within this group will begin as soon as feasible after the completion of nearby sites presently being studied. The sizes and use specifications are based on historical usage and do not necessarily meet the criteria stated in this part.
(2) Unless otherwise specifically noted, site management authority for each site set forth in this section is delegated to the EPA Regional office under which the site entry is listed.
(3) Unless otherwise specifically noted, all ocean dumping site coordinates are based upon the North American Datum of 1927.
(b) Region I Interim Dredged Material Sites.
(1) Cape Arundel, ME.
(i)
(ii) [Reserved]
(c) Region I Interim Other Wastes Sites.
(1) No interim sites.
(2) [Reserved]
(d) Region II Interim Dredged Material Sites.
(1) No interim sites.
(2) [Reserved]
(e) Region II Interim Other Wastes Sites.
(1) Incineration of Wood, NY/NJ.
(i)
(ii) [Reserved]
(2) [Reserved]
(f) Region III Interim Dredged Material Sites.
(1) No interim sites.
(2) [Reserved]
(g) Region III Interim Other Wastes Sites.
(1) No interim sites.
(2) [Reserved]
(h) Region IV Interim Dredged Material Sites.
(1) Port Royal Harbor North, SC.
(i)
(ii) [Reserved]
(2) Port Royal Harbor South, SC.
(i)
(ii) [Reserved]
(3)-(6) [Reserved]
(7) Charlotte Harbor, FL.
(i)
(ii) [Reserved]
(8) Port St. Joe South, FL.
(i)
(ii) [Reserved]
(9) Port St. Joe North, FL.
(i)
(ii) [Reserved]
(10) Panama City, FL.
(i)
(ii) [Reserved]
(i) Region IV Interim Other Wastes Sites.
(1) No interim sites.
(2) [Reserved]
(j) Region VI Interim Dredged Material Sites.
(1) Mississippi River, Baton Rouge to the Gulf of Mexico, LA—South Pass.
(1)
(ii) [Reserved]
(2) Mississippi River Outlets, Venice, LA—Tiger Pass.
(i)
(ii) [Reserved]
(3) Waterway from Empire, LA to the Gulf of Mexico—Bar channel.
(i)
(ii) [Reserved]
(4) Bayou Lafourche and Lafourche—Jump Waterway, LA—Bell Pass.
(i)
(ii) [Reserved]
(5) [Reserved]
(6) Mermentau River, LA, Disposal Area “A”.
(i)
(ii) [Reserved]
(7) Mermentau River, LA, Disposal Area “B”.
(i)
(ii) [Reserved]
(8) Freshwater Bayou, LA—Bar channel.
(i)
(ii) [Reserved]
(k) Region VI Interim Other Wastes Sites.
(1) No interim sites.
(2) [Reserved]
(l) Region IX Interim Dredged Material Sites.
(1) Newport Beach, CA (LA-3).
(i)
(ii) [Reserved]
(2) Port Hueneme, CA (LA-1).
(i)
(ii) [Reserved]
(3) Crescent City Harbor, CA (SF-1).
(i)
(ii) [Reserved]
(4) Noyo River, CA (SF-5).
(i)
(ii) [Reserved]
(5) Guam—Apra Harbor.
(i)
(ii) [Reserved]
(m) Region IX Interim Other Wastes Sites.
(1) No interim sites.
(2) [Reserved]
(n) Region X Interim Dredged Material Sites.
(1) Rogue River Entrance, OR.
(i)
(ii) [Reserved]
(2) Port Orford, OR.
(i)
(ii) [Reserved]
(3) Umpqua River Entrance, OR.
(i)
(ii) [Reserved]
(4) Siuslaw River Entrance, OR.
(i)
(ii) [Reserved]
(5) Yaquina Bay and Harbor Entrance, OR.
(i)
(ii) [Reserved]
(6) Tillamook Bay Entrance, OR.
(i)
(ii) [Reserved]
(7) Willapa Bay, WA.
(i)
(ii) [Reserved]
(o) Region X Interim Other Wastes Sites.
(1) No interim sites.
(2) [Reserved]
(a)(1) The sites identified in this section are approved for dumping the indicated materials. Designation of these sites was based on environmental studies conducted in accordance with the provisions of this part 228, and the sites listed in this section have been found to meet the site designation criteria of §§ 228.5 and 228.6.
(2) Unless otherwise specifically noted, site management authority for each site set forth in this section is delegated to the EPA Regional office under which the site entry is listed.
(3) Unless otherwise specifically noted, all ocean dumping site coordinates are based upon the North American Datum of 1927.
(b) Region I Final Dredged Material Sites.
(1) Portland, Maine, Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) Massachusetts Bay Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(3) Rhode Island Sound Disposal Site (RISDS).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4) Central Long Island Sound Dredged Material Disposal Site (CLIS).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(A) Disposal shall be limited to dredged material from Long Island Sound and vicinity.
(B) Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.
(C) Except as provided in paragraphs (b)(4)(vi)(D) and (E) of this section, the disposal of dredged material at the CLIS and WLIS sites pursuant to this designation shall not be allowed beginning eight (8) years after July 5, 2005 unless a regional dredged material management plan (DMMP) for Long Island Sound has been completed by the North Atlantic Division of the USACE, in consultation with the State of New York, State of Connecticut and EPA, with a goal of reducing or eliminating the disposal of dredged material in
(D) The EPA may extend the eight-year deadline in paragraph (b)(4)(vi)(C) of this section for any reasonable period (on one or more occasions) if it obtains the written agreement of the USACE, the State of Connecticut (Department of Environmental Protection) and the State of New York (Department of State).
(E) The EPA may extend the eight-year deadline in paragraph (b)(4)(vi)(C) of this section by up to one year (on one occasion only) if it determines in writing that the parties participating in the development of the DMMP have attempted in good faith to meet the deadline, but that the deadline has not been met due to factors beyond the parties' control (including funding). Such an extension may be in addition to any extension(s) granted under paragraph (b)(4)(vi)(D) of this section.
(F) The EPA will conduct an annual review of progress in developing the DMMP. If the EPA finds that the DMMP is being unreasonably delayed by one or more parties, the EPA reserves the right to take the following actions as appropriate: (
(G) Upon completion of the DMMP, disposal of dredged material at the designated sites pursuant to the designation in this paragraph (b)(4) shall be allowed only from permittees that comply with procedures and standards consistent with the recommendations of the DMMP, and consistent with applicable law, for the use of the sites and for the use of practicable alternatives to open-water disposal, so as to reduce or eliminate the disposal of dredged material in Long Island Sound. Upon the completion of the DMMP, the EPA will within 60 days propose and within 120 days (subject to consideration of public comments) issue a legally binding amendment to the designation in this paragraph (b)(4) describing all such procedures and standards and specifying that they must be complied with as part of this designation.
(H) Disposal not subject to the restrictions in paragraphs (b)(4)(vi)(C) through (G) or (b)(4)(vi)(I) of this section shall be permitted only for materials resulting from currently authorized or permitted dredging projects at Norwalk, Rye and New Rochelle. Such disposal must meet all applicable statutory and regulatory requirements. All phases of any of these project must be initiated within four (4) years from the date of the designation, or the project will become subject to paragraph (b)(4)(vi)(I) of this section.
(I) Except for the projects covered by paragraph (b)(4)(vi)(H) of this section and until completion of the DMMP, disposal of dredged material at the designated sites pursuant to the designation in this paragraph (b)(4) shall be allowed only if, after full consideration of recommendations provided by an established Regional Dredging Team
(1) There are no practicable alternatives (as defined in 40 CFR 227.16(b)) to open-water disposal in Long Island Sound and that any available practicable alternative to open-water disposal will be fully utilized for the maximum volume of dredged material practicable;
(2) Determinations relating to paragraph (b)(4)(vi)(I)(1) of this section will recognize that any alternative to open-water disposal may add additional costs. Disposal of dredged material at the designated sites pursuant to this paragraph (b)(4) shall not be allowed if a practicable alternative is available. Any project subject to this restriction must be permitted or authorized prior to the completion of the DMMP and completed within two years after the completion of the DMMP.
(J) Disposal shall be limited to dredged sediments that comply with the Ocean Dumping Regulations.
(K) Disposal of dredged material at the designated sites pursuant to the designation in this paragraph (b)(4) shall not be allowed for any materials subject to a waiver under 33 U.S.C. 1413(d) unless, for any project where a waiver is sought, the New England or New York District of the USACE provides notification, by certified mail at least thirty (30) days before making the waiver request, to the Governors of the states of Connecticut and New York and the North Atlantic Division of the USACE that it will be requesting a waiver.
(L) Transportation of dredged material to the sites shall only be allowed when weather and sea conditions will not interfere with safe transportation and will not create risk of spillage, leak or other loss of dredged material in transit. No disposal trips shall be initiated when the National Weather Service has issued a gale warning for local waters during the time period necessary to complete dumping operations.
(M) The parties participating in the DMMP will need to seek additional funding in order to develop the DMMP. Nothing in the designation in this paragraph (b)(4) or elsewhere guarantees that any agency will be able to obtain funding for the DMMP. This designation shall not be interpreted as or constitute a commitment that the United States will obligate or expend funds in contravention of the Anti-Deficiency Act, 31 U.S.C. 1341. Rather, the sole remedy for any failure to meet the conditions specified in this paragraph (b)(4)(vi) shall be the restriction of the authority to dispose of dredged material, as provided in this paragraph (b)(4).
(N) Nothing in the designation in this paragraph (b)(4) or elsewhere precludes the EPA from exercising its statutory
(5) Western Long Island Sound Dredged Material Disposal Site (WLIS).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(c) Region I Final Other Wastes Sites.
(1) No final sites.
(2) [Reserved]
(d) Region II Final Dredged Material Sites.
(1) Fire Island Inlet, Long Island, New York Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) Jones Inlet, Long Island, New York Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(3) East Rockaway Inlet, Long Island NY Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4) Rockaway Inlet, Long Island, New York Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(5) Shark River, New Jersey Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(6) Historical Area Remediation Site (HARS) Designation/Mud Dump Site Termination.
(i) Status of Former Mud Dump Site: The Mud Dump Site, designated as an Impact Category I site on May 4, 1984, is terminated.
(ii) Location: (A) The HARS (which includes the 2.2 square nautical mile area of the former Mud Dump Site) is a 15.7 square nautical mile area located approximately 3.5 nautical miles east of Highlands, New Jersey and 7.7 nautical miles south of Rockaway, Long Island. The HARS consists of a Primary Remediation Area (PRA), a Buffer Zone, and a No Discharge Zone. The HARS is bounded by the following coordinates:
(B) The PRA, is a 9.0 square nautical mile area to be remediated with at least a 1 meter cap of the Material for Remediation. The PRA is bounded by the following coordinates:
(iii) Size: 15.7 square nautical miles.
(iv) Depth: Ranges from 12 to 42 meters.
(v) Restrictions on Use:
(A) The site will be managed so as to reduce impacts within the PRA to acceptable levels in accordance with 40 CFR 228.11(c). Use of the site will be restricted to dredged material suitable for use as the Material for Remediation. This material shall be selected so as to ensure it will not cause significant undesirable effects including through bioaccumulation or unacceptable toxicity, in accordance with 40 CFR 227.6.
(B) Placement of Material for Remediation will be limited to the PRA. Placement of Material for Remediation within the PRA is not allowed in a 0.27 nautical mile radius around the following coordinates due to the presence of shipwrecks: 40° 25.30′ W, 73° 52.80′ N; 40° 25.27′ W, 73° 52.13′ N; 40° 25.07′ W, 73° 50.05′ N; 40° 22.46′ W, 73° 53.27′ N.
(C) No placement of material may take place within the Buffer Zone, although this zone may receive material that incidentally spreads out of the PRA. The Buffer Zone is an approximately 5.7 square nautical mile area (0.27 nautical mile wide band around the PRA), which is bounded by the following coordinates:
(D) No placement or incidental spread of the material is allowed within the No Discharge Zone, an approximately 1.0 square nautical mile area, bounded by the following coordinates:
(E) HARS-specific Polychlorinated Biphenyl (PCB) Tissue Criterion: Total PCB bioaccumulation worm test results for dredged material approved for placement at the HARS as Material for Remediation shall not exceed the HARS-specific PCB tissue criterion of 113 ppb. This HARS-specific PCB tissue criterion will be applied to the arithmetic mean concentration reported for the analyses of the worm tissue replicates exposed to the tested sediments, without the use of statistical confidence limits.
(vi) Period of Use: Continuing use until EPA determines that the PRA has been sufficiently capped with at least 1 meter of the Material for Remediation. At that time, EPA will undertake any necessary rulemaking to de-designate the HARS.
(7) Manasquan, New Jersey Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(8) Absecon Inlet, NJ Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(9) Cold Spring Inlet, NJ Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(10) San Juan Harbor, PR, Dredged Material Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(11) Arecibo Harbor, PR Dredged Material Disposal Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(12) Mayaguez Harbor, PR Dredged Material Disposal Site.
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(ii)
(iii)
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(v)
(vi)
(13) Ponce Harbor, PR Dredged Material Disposal Site.
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(v)
(vi)
(14) Yabucoa Harbor, PR Dredged Material Disposal Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(e) Region II Final Other Wastes Sites.
(1) No final sites.
(2) [Reserved]
(f) Region III Final Dredged Material Sites.
(1) Dam Neck, Virginia, Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) Norfolk, VA, Dredged Material Disposal Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(g) Region III Final Other Wastes Sites.
(1) No final sites.
(2) [Reserved]
(h) Region IV Final Dredged Material Sites.
(1) Morehead City, NC Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) Wilmington, NC Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(3) Georgetown Harbor; Georgetown, South Carolina: Ocean Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4) [Reserved]
(5) Charleston, SC, Ocean Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v) Period of Use: Continued use.
(vi) Restriction: Disposal shall be limited to dredged material from the Charleston Harbor area. All dredged materials must be placed within the box defined by the following four corner coordinates (NAD83): 32.65663° N, 79.75716° W; 32.64257° N, 79.72733° W; 32.61733° N, 79.74381° W; and 32.63142° N, 79.77367° W. Additionally, all disposals shall be in accordance with all provisions of disposal placement as specified by the Site Management Plan, which is periodically updated.
(6) Savannah, GA Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(7) Brunswick Harbor, Brunswick, Georgia Ocean Dredged Material Disposal Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(8) Fernandina Beach, FL Dredged Material Disposal Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(9) Jacksonville, FL Dredged Material Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(10) Canaveral Harbor, FL, Dredged Material Dumpsite.
(i)
Center coordinates: 28°18′44″N., 80°31′00″W. (NAD 27).
(ii)
(iii)
(iv)
(v)
(vi)
(11) Fort Pierce Harbor, FL, Fort Pierce, FL, Ocean Dredged material Disposal Site.
(i) Location: 27°28′00″ N., 80°12′33″ W.; 27°28′00″ N., 80°11′27″ W.; 27°27′00″ N., 80°11′27″ W.; and 27°27′00″ N., 80°12′33″ W.
(ii)
(iii)
(iv)
(v)
(vi)
(12) Pensacola Nearshore, FL Dredged Material Disposal Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(13) Pensacola, Florida Ocean Dredged Material Disposal Site, i.e. the Pensacola (Offshore) Ocean Dredged Material Disposal Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(14) Mobile, Alabama Dredged Material Disposal Site.
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(ii)
(iii)
(iv)
(v)
(vi)
(15) Pascagoula, MS, Ocean Dredged Material Dumpsite.
(i)
30°11′42″N., 88°33′24″W.; 30°08′30″N., 88°37′00″W.; and 30°08′18″N., 88°41′54″W.
Center coordinates: 30°10′09″N., 88°39′12″W.
(ii)
(iii)
(iv)
(v)
(vi)
(16) Gulfport, Mississippi Dredged Material Disposal Site—Eastern Site
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(17) Gulfport, MS Dredged Material Disposal Site—Western Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi) Disposal shall be limited to dredged material which meets the Ocean Dumping Criteria.
(18) Tampa, Florida; Ocean Dredged Material Disposal Site ____ Region IV.
(i) Location: 27°32′27″N.; 83°06′02″W; 27°32′27″N.; 83°03′46″W.; 27°30′27″N.; 83°06′02″W.; 27°30′27″N.; 83°03′46″W.
(ii) Size: Approximately 4 square nautical miles.
(iii) Depth: Approximately 22 meters.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged material from the greater Tampa, Florida vicinity. Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.
(19) Miami, Florida; Ocean Dredged Material Disposal Site.
(i) Location: 25°45′30″N.; 80°03′54″W.; 25°45′30″N.; 80°02′50″W.; 25°44′30″N.; 80°03′54″W.; 25°44′30″N.; 80°02′50″W.
Center coordinates are 25°45′00″ N and 80°03′22″ W.
(ii) Size: Approximately 1 square nautical mile.
(iii) Depth: Ranges from 130 to 240 meters.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged material from the greater Miami, Florida vicinity. Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.
(20) New Wilmington, NC; Ocean Dredged Material Disposal Site.
(i) Location:
(ii) Size: Approximately 9.4 square nautical miles.
(iii) Depth: Ranges from 35-52 feet.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged material from the greater Wilmington, North Carolina vicinity. Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.
(21) Palm Beach Harbor, FL Ocean Dredged Material Disposal Site.
(i) Location (NAD83): 26°47′30″ N., 79°57′09″ W.; 26°47′30″ N., 79°56′02″ W.; 26°46′30″ N., 79°57′09″ W.; 26°46′30″ N., 79°56′02″ W. Center coordinates are 26°47′00″ N and 79°56′35″ W.
(ii) Size: Approximately 1 square nautical mile.
(iii) Depth: Ranges from 525 to 625 feet.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged material. Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.
(22) Port Everglades Harbor, FL Ocean Dredged Material Disposal Site.
(i) Location (NAD83): 26°07′30″ N., 80°02′00″ W.; 26°07′30″ N., 80°01′00″ W.; 26°06′30″ N., 80°02′00″ W.; 26°06′30″ N., 80°01′00″ W. Center coordinates are 26°07′00″ N and 80°01′30″ W.
(ii) Size: Approximately 1 square nautical mile.
(iii) Depth: Ranges from 640 to 705 feet.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged material. Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.
(23) Port Royal, SC; Ocean Dredged Material Disposal Site.
(i) Location (NAD83): 32°05.00′ N., 80°36.47′ W.; 32°05.00′ N., 80°35.30′ W.; 32°04.00′ N., 80°35.30′ W.; 32°04.00′ N., 80°36.47′ W.
(ii) Size: Approximately 1.0 square nautical miles.
(iii) Depth: Averages 36 feet.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged material from the greater Port Royal, South Carolina, vicinity. Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.
(i) Region IV Final Other Wastes Sites.
(1) No final sites.
(2) [Reserved]
(j) Region VI Final Dredged Material Sites.
(1) Mississippi River Gulf Outlet, LA.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) Southwest Pass—Mississippi River, LA.
(i)
(ii)
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(v)
(vi)
(3) Barataria Bay Waterway, LA.
(i)
(ii)
(iii)
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(v)
(vi)
(4) Houma Navigation Canal, Louisiana.
(i)
(ii)
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(iv)
(v)
(vi)
(5) Calcasieu, LA Dredged Material Site 1.
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(vi)
(6) Calcasieu, LA Dredged Material Site 2.
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(ii)
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(vi)
(7) Calcasieu, LA Dredged Material Site 3.
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(vi)
(8) Sabine-Neches, TX Dredged Material Site 1.
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(ii)
(iii)
(iv)
(v)
(vi)
(9) Sabine-Neches, TX Dredged Material Site 2.
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(ii)
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(vi)
(10) Sabine-Neches, TX Dredged Material Site 3.
(i)
(ii)
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(iv)
(v)
(vi)
(11) Sabine-Neches, TX, Dredged Material Site 4.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(12) Galveston, TX Dredged Material Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(13) Freeport Harbor, TX, New Work (45 Foot Project).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(14) Freeport Harbor, TX, Maintenance (45 Foot Project).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(15) Matagorda Ship Channel, TX.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(16) Homeport Project, Port Aransas, TX.
(i)
(ii)
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(iv)
(v)
(vi)
(17) Corpus Christi Ship Channel, TX.
(i)
(ii)
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(v)
(vi)
(18) Port Mansfield, TX.
(i)
(ii)
(iii)
(iv)
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(vi)
(19) Brazos Island Harbor, TX.
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(ii)
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(iv)
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(vi)
(20) Brazos Island Harbor (42-Foot Project), TX.
(i)
(ii)
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(vi)
(21) Atchafalaya River and Bayous Chene, Boeuf, and Black, LA
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(k) Region VI Final Other Wastes Sites.
(1) No final sites.
(2) [Reserved]
(l) Region IX Final Dredged Material Sites.
(1) San Diego, CA (LA-5).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) Los Angeles/Long Beach, CA (LA-2).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(3) San Francisco Deepwater Ocean Site (SF-DODS) Ocean Dredged Material Disposal Site—Region IX.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(C)
(ix)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(C)
(
(
(
(
(
(
(D)
(x)
(A)
(
(
The Regional Administrator may employ Tier 2 monitoring when available evidence indicates that a significant amount of dredged material as defined in paragraph (l)(3)(x)(A)(
(
(
(
(
(B)
(
(
(
(
(
(
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(
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(
(
(
(4) Channel Bar Site, San Francisco, CA (SF-8).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(5) Hilo, HI.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(6) Kahului, HI.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(7) South Oahu, HI.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(8) Nawiliwili, HI.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(9) Port Allen, HI.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(10) Humboldt Open Ocean Disposal Site (HOODS) Ocean Dredged Material Disposal Site—Region IX.
(i) Location: The coordinates of the corners of the square site are: 40°48′25″ North latitude (N) by 124°16′22″ West longitude (W); 40°49′03″ N by 124°17′22″ W; 40°47′38″ N by 124°17′22″ N; and 40°48′17″ N by 124°18′12″ W (North American Datum from 1983).
(ii) Size: 1 square nautical mile (3 square kilometers).
(iii) Depth: Water depths within the area range between approximately 160 to 180 feet (49 to 55 meters).
(iv) Use Restricted to Disposal of: Dredged materials.
(v) Period of Use: Continuing use over 50 years from date of site designation, subject to restrictions and provisions set forth in paragraph (l)(10)(vi) of this section.
(vi) Restrictions/Provisions: Site management and monitoring activities shall be implemented during the period of site use and in accordance with the Site Management and Monitoring Plan (SMMP) for the HOODS as incorporated in the Final EIS, and summarized in Section D of this final rule. All disposal activities shall be terminated if monitoring, as described in the SMMP, is not implemented. The SMMP may be periodically revised as necessary; proposed substantive revisions to the SMMP shall be made following opportunity for public review and comment.
(11) Newport Beach, CA, (LA-3) Ocean Dredged Material Disposal Site—Region IX.
(i) Location: Center coordinates of the circle-shaped site are: 33°31′00″ North Latitude by 117°53′30″ West Longitude (North American Datum from 1983), with a radius of 3,000 feet (915 meters).
(ii) Size: 0.77 square nautical miles.
(iii) Depth: 1,500 to 1,675 feet (460 to 510 meters).
(iv) Use Restricted to Disposal of: Dredged materials.
(v) Period of Use: Continuing use.
(vi) Restrictions: Disposal shall be limited to dredged materials that comply with EPA's Ocean Dumping Regulations.
(m) Region IX Final Other Wastes Sites.
(1) Fish Processing Waste Disposal Site, American Samoa.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) [Reserved]
(n) Region X Final Dredged Material Sites.
(1) Chetco, OR, Dredged Material Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2) Coos Bay, OR Dredged Material Site E.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(3) Coos Bay, OR Dredged Material Site F.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4) Coos Bay, OR Dredged Material Site H.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(5) Coquille River Entrance, OR.
(i)
Centroid: 43°08′08″ N., 124°26′34″ W.
(ii)
(iii)
(iv)
(v)
(6)—(7) [Reserved]
(8) Mouth of the Columbia River, OR/WA Dredged Material Shallow Water site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(9) Mouth of the Columbia River, OR/WA Dredged Material Deep Water site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(10) Grays Harbor Eight Mile Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(11) Grays Harbor Southwest Navigation Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(12) Nome, AK—East Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(13) Nome, AK—West Site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(o) Region X Final Other Wastes Sites.
(1) No final sites.
(2) [Reserved]
For
33 U.S.C. 1412 and 1418.
(a) All persons subject to title I of the Act are hereby granted a general permit to transport human remains from the United States and all persons owning or operating a vessel or aircraft
(1) Except as herein otherwise provided, human remains shall be prepared for burial at sea and shall be buried in accordance with accepted practices and requirements as may be deemed appropriate and desirable by the United States Navy, United States Coast Guard, or civil authority charged with the responsibility for making such arrangements;
(2) Burial at sea of human remains which are not cremated shall take place no closer than 3 nautical miles from land and in water no less than one hundred fathoms (six hundred feet) deep and in no less than three hundred fathoms (eighteen hundred feet) from (i) 27°30′00″ to 31°00′00″ North Latitude off St. Augustine and Cape Canaveral, Florida; (ii) 82°20′00″ to 84°00′00″ West Longitude off Dry Tortugas, Florida; and (iii) 87°15′00″ to 89°50′00″ West Longitude off the Mississippi River Delta, Louisiana, to Pensacola, Florida. All necessary measures shall be taken to ensure that the remains sink to the bottom rapidly and permanently; and
(3) Cremated remains shall be buried in or on ocean waters without regard to the depth limitations specified in paragraph (a)(2) of this section provided that such burial shall take place no closer than 3 nautical miles from land.
(b) For purposes of this section and §§ 229.2 and 229.3,
(c) Flowers and wreaths consisting of materials which are readily de-com-pos-a-ble in the marine environment may be disposed of under the general permit set forth in this section at the site at which disposal of human remains is authorized.
(d) All burials conducted under this general permit shall be reported within 30 days to the Regional Administrator of the Region from which the vessel carrying the remains departed.
(a) The U.S. Navy is hereby granted a general permit to transport vessels from the United States or from any other location for the purpose of sinking such vessels in ocean waters in testing ordnance and providing related data subject to the following conditions:
(1) Such vessels may be sunk at times determined by the appropriate Navy -official;
(2) Necessary measures shall be taken to insure that the vessel sinks to the bottom rapidly and permanently, and that marine navigation is not otherwise impaired by the sunk vessel;
(3) All such vessel sinkings shall be conducted in water at least 1,000 fathoms (6,000 feet) deep and at least 50 nautical miles from land, as defined in § 229.1(b); and
(4) Before sinking, appropriate measures shall be taken by qualified personnel at a Navy or other certified facility to remove to the maximum extent practicable all materials which may degrade the marine environment, -including without limitation (i) emptying of all fuel tanks and fuel lines to the lowest point practicable, flushing of such tanks and lines with water, and again emptying such tanks and lines to the lowest point practicable so that such tanks and lines are essentially free of petroleum, and (ii) removing from the hulls other pollutants and all readily detachable material capable of creating debris or contributing to chemical pollution.
(b) An annual report will be made to the Administrator of the Environmental Protection Agency setting forth the name of each vessel used as a target vessel, its approximate tonnage, and the location and date of sinking.
(a) All persons subject to title I of the Act are hereby granted a general permit to transport vessels from the United States, and all departments, agencies, or instrumentalities of the United States are hereby granted a
(1) Except in emergency situations, as determined by the U.S. Army Corps of Engineers and/or the U.S. Coast Guard, the person desiring to dispose of a vessel under this general permit shall, no later than 1 month prior to the proposed disposal date, provide the following information in writing to the EPA Regional Administrator for the Region in which the proposed disposal will take place:
(i) A statement detailing the need for the disposal of the vessel;
(ii) Type and description of vessel to be disposed of and type of cargo normally carried;
(iii) Detailed description of the proposed disposal procedures;
(iv) Information on the potential effect of the vessel disposal on the marine environment; and
(v) Documentation of an adequate evaluation of alternatives to ocean disposal (i.e., scrap, salvage, and reclamation).
(2) Transportation for the purpose of ocean disposal may be accomplished under the supervision of the District Commander of the U.S. Coast Guard or his designee.
(3) Except in emergency situations, as determined by the U.S. Army Corps of Engineers and/or the District Commander of the U.S. Coast Guard, appropriate measures shall be taken, prior to disposal, by qualified personnel to remove to the maximum extent practicable all materials which may degrade the marine environment, including without limitation (i) emptying of all fuel lines and fuel tanks to the lowest point practicable, flushing of such lines and tanks with water, and again emptying such lines and tanks to the lowest point practicable so that such lines and tanks are essentially free of petroleum, and (ii) removing from the hulls other pollutants and all readily detachable material capable of creating debris or contributing to chemical pollution.
(4) Except in emergency situations, as determined by the U.S. Army Corps of Engineers and/or the U.S. Coast Guard, the dumper shall, no later than 10 days prior to the proposed disposal date, notify the EPA Regional Administrator and the District Commander of the U.S. Coast Guard that the vessel has been cleaned and is available for inspection; the vessel may be transported for dumping only after EPA and the Coast Guard agree that the requirements of paragraph (a)(3) of this section have been met.
(5) Disposal of these vessels shall take place in a site designated on current nautical charts for the disposal of wrecks or no closer than 22 kilometers (12 miles) from the nearest land and in water no less than 50 fathoms (300 feet) deep, and all necessary measures shall be taken to insure that the vessels sink to the bottom rapidly and that marine navigation is not otherwise impaired.
(6) Disposal shall not take place in established shipping lanes unless at a designated wreck site, nor in a designated marine sanctuary, nor in a location where the hulk may present a hazard to commercial trawling or national defense (see 33 CFR part 205).
(7) Except in emergency situations, as determined by the U.S. Army Corps of Engineers and/or the U.S. Coast Guard, disposal of these vessels shall be performed during daylight hours only.
(8) Except in emergency situations, as determined by the U.S. Army Corps of Engineers and/or the District Commander of the U.S. Coast Guard, the Captain-of-the-Port (COTP), U.S. Coast Guard, and the EPA Regional Administrator shall be notified forty-eight (48) hours in advance of the proposed disposal. In addition, the COTP and the EPA Regional Administrator shall be notified by telephone at least twelve (12) hours in advance of the vessel's departure from port with such details as the proposed departure time and place, disposal site location, estimated time of arrival on site, and the name and communication capability of the towing vessel. Schedule changes are to be reported to the COTP as rapidly as possible.
(9) The National Ocean Survey, NOAA, 6010 Executive Blvd., Rockville, MD 20852, shall be notified in writing, within 1 week, of the exact coordinates of the disposal site so that it may be marked on appropriate charts.
Secs. 404(b) and 501(a) of the Clean Water Act of 1977 (33 U.S.C. 1344(b) and 1361(a)).
(a) The purpose of these Guidelines is to restore and maintain the chemical, physical, and biological integrity of waters of the United States through the control of discharges of dredged or fill material.
(b) Congress has expressed a number of policies in the Clean Water Act. These Guidelines are intended to be consistent with and to implement those policies.
(c) Fundamental to these Guidelines is the precept that dredged or fill material should not be discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.
(d) From a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines. The guiding principle should be that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources.
(a) These Guidelines have been developed by the Administrator of the Environmental Protection Agency in conjunction with the Secretary of the Army acting through the Chief of Engineers under section 404(b)(1) of the Clean Water Act (33 U.S.C. 1344). The Guidelines are applicable to the specification of disposal sites for discharges of dredged or fill material into waters of the United States. Sites may be specified through:
(1) The regulatory program of the U.S. Army Corps of Engineers under sections 404(a) and (e) of the Act (see 33 CFR Parts 320, 323 and 325);
(2) The civil works program of the U.S. Army Corps of Engineers (see 33 CFR 209.145 and section 150 of Pub. L. 94-587, Water Resources Development Act of 1976);
(3) Permit programs of States approved by the Administrator of the Environmental Protection Agency in -accordance with section 404(g) and (h) -of the Act (see 40 CFR parts 122, 123 -and 124);
(4) Statewide dredged or fill material regulatory programs with best management practices approved under section 208(b)(4)(B) and (C) of the Act (see 40 CFR 35.1560);
(5) Federal construction projects which meet criteria specified in section 404(r) of the Act.
(b) These Guidelines will be applied in the review of proposed discharges of dredged or fill material into navigable waters which lie inside the baseline from which the territorial sea is measured, and the discharge of fill material into the territorial sea, pursuant to the procedures referred to in paragraphs (a)(1) and (2) of this section. The discharge of dredged material into the territorial sea is governed by the Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. 92-532, and regulations and criteria issued pursuant thereto (40 CFR parts 220 through 228).
(c) Guidance on interpreting and implementing these Guidelines may be prepared jointly by EPA and the Corps at the national or regional level from time to time. No modifications to the basic application, meaning, or intent of these Guidelines will be made without rulemaking by the Administrator under the Administrative Procedure Act (5 U.S.C. 551
For purposes of this part, the following terms shall have the meanings indicated:
(a) The term
(b) The term
(c) The terms
(d) The term
(e) The term
(f)-(g) [Reserved]
(h) The term
(i) The term
(j) [Reserved]
(k) The term
(l) [Reserved]
(m) The term
(n) The term
(o) The term
(p) The term
(q) The term
(q-1)
(r) The term
(s) The term
(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purposes by industries in interstate commerce;
(4) All impoundments of waters otherwise defined as waters of the United States under this definition;
(5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
(6) The territorial sea;
(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
(t) The term
The Guidelines are divided into eight subparts. Subpart A presents those provisions of general applicability, such as purpose and definitions. Subpart B establishes the four conditions which must be satisfied in order to make a finding that a proposed discharge of dredged or fill material complies with the Guidelines. Section 230.11 of subpart B, sets forth factual determinations which are to be considered in determining whether or not a proposed discharge satisfies the subpart B conditions of compliance. Subpart C describes the physical and chemical components of a site and provides guidance as to how proposed discharges of dredged or fill material may affect these components. Subparts D through F detail the special characteristics of particular aquatic ecosystems in terms of their values, and the possible loss of these values due to discharges of dredged or fill material. Subpart G prescribes a number of physical, chemical, and biological evaluations and testing procedures to be used in reaching the required factual determinations. Subpart H details the means to prevent or mimimize adverse effects. Subpart I concerns advanced identification of disposal areas.
In evaluating whether a particular discharge site may be specified, the permitting authority should use these Guidelines in the following sequence:
(a) In order to obtain an overview of the principal regulatory provisions of the Guidelines, review the restrictions on discharge in § 230.10(a) through (d), the measures to mimimize adverse impact of subpart H, and the required factual determinations of § 230.11.
(b) Determine if a General permit (§ 230.7) is applicable; if so, the applicant needs merely to comply with its terms, and no further action by the permitting authority is necessary. Special conditions for evaluation of proposed General permits are contained in § 230.7. If the discharge is not covered by a General permit:
(c) Examine practicable alternatives to the proposed discharge, that is, not discharging into the waters of the U.S. or discharging into an alternative aquatic site with potentially less damaging consequences (§ 230.10(a)).
(d) Delineate the candidate disposal site consistent with the criteria and evaluations of § 230.11(f).
(e) Evaluate the various physical and chemical components which characterize the non-living environment of the candidate site, the substrate and the water including its dynamic characteristics (subpart C).
(f) Identify and evaluate any special or critical characteristics of the candidate disposal site, and surrounding areas which might be affected by use of such site, related to their living communities or human uses (subparts D, E, and F).
(g) Review Factual Determinations in § 230.11 to determine whether the information in the project file is sufficient to provide the documentation required by § 230.11 or to perform the pre-testing evaluation described in § 230.60, or other information is necessary.
(h) Evaluate the material to be discharged to determine the possibility of chemical contamination or physical incompatibility of the material to be discharged (§ 230.60).
(i) If there is a reasonable probability of chemical contamination, conduct the appropriate tests according to the section on Evaluation and Testing (§ 230.61).
(j) Identify appropriate and practicable changes to the project plan to minimize the environmental impact of the discharge, based upon the specialized methods of minimization of impacts in subpart H.
(k) Make and document Factual Determinations in § 230.11.
(l) Make and document Findings of Compliance (§ 230.12) by comparing Factual Determinations with the requirements for discharge of § 230.10.
(a) The manner in which these Guidelines are used depends on the physical, biological, and chemical nature of the proposed extraction site, the material to be discharged, and the candidate disposal site, including any other important components of the ecosystem being evaluated. Documentation to demonstrate knowledge about the extraction site, materials to be extracted, and the candidate disposal site is an essential component of guideline application. These Guidelines allow evaluation and documentation for a variety of activities, ranging from those with large, complex impacts on the aquatic environment to those for which the impact is likely to be innocuous. It is unlikely that the Guidelines will apply in their entirety to any one activity, no matter how complex. It is anticipated that substantial numbers of permit applications will be for minor, routine activities that have little, if any, potential for significant degradation of the aquatic environment. It generally is not intended or expected that extensive testing, evaluation or analysis will be needed to make findings of compliance in such routine cases. Where the conditions for General permits are met, and where numerous applications for similar activities are likely, the use of General permits will eliminate repetitive evaluation and documentation for individual discharges.
(b) The Guidelines user, including the agency or agencies responsible for implementing the Guidelines, must recognize the different levels of effort that should be associated with varying degrees of impact and require or prepare commensurate documentation. The level of documentation should reflect the significance and complexity of the discharge activity.
(c) An essential part of the evaluation process involves making determinations as to the relevance of any portion(s) of the Guidelines and conducting further evaluation only as needed. However, where portions of the Guidelines review procedure are “short form” evaluations, there still must be sufficient information (including consideration of both individual and cumulative impacts) to support the decision of whether to specify the site for disposal of dredged or fill material and to support the decision to curtail or abbreviate the evaluation process. The presumption against the discharge in § 230.1 applies to this decision-making.
(d) In the case of activities covered by General permits or section 208(b)(4)(B) and (C) Best Management Practices, the analysis and documentation required by the Guidelines will be performed at the time of General permit issuance or section 208(b)(4)(B) and (C) Best Management Practices promulgation and will not be repeated when activities are conducted under a General permit or section 208(b)(4)(B) and (C) Best Management Practices
(a)
(1) The activities in such category are similar in nature and similar in their impact upon water quality and the aquatic environment;
(2) The activities in such category will have only minimal adverse effects when performed separately; and
(3) The activities in such category will have only minimal cumulative adverse effects on water quality and the aquatic environment.
(b)
(1) This evaluation shall be based upon consideration of the prohibitions listed in § 230.10(b) and the factors listed in § 230.10(c), and shall include documented information supporting each factual determination in § 230.11 of the Guidelines (consideration of alternatives in § 230.10(a) are not directly applicable to General permits);
(2) The evaluation shall include a precise description of the activities to be permitted under the General permit, explaining why they are sufficiently similar in nature and in environmental impact to warrant regulation under a single General permit based on subparts C through F of the Guidelines. Allowable differences between activities which will be regulated under the same General permit shall be specified. Activities otherwise similar in nature may differ in environmental impact due to their location in or near ecologically sensitive areas, areas with unique chemical or physical characteristics, areas containing concentrations of toxic substances, or areas regulated for specific human uses or by specific land or water management plans (e.g., areas regulated under an approved Coastal Zone Management Plan). If there are specific geographic areas within the purview of a proposed General permit (called a draft General permit under a State 404 program), which are more appropriately regulated by individual permit due to the considerations cited in this paragraph, they shall be clearly delineated in the evaluation and excluded from the permit. In addition, the permitting authority may require an individual permit for any proposed activity under a General permit where the nature or location of the activity makes an individual permit more appropriate.
(3) To predict cumulative effects, the evaluation shall include the number of individual discharge activities likely to be regulated under a General permit until its expiration, including repetitions of individual discharge activities at a single location.
Because other laws may apply to particular discharges and because the Corps of Engineers or State 404 agency may have additional procedural and substantive requirements, a discharge complying with the requirement of these Guidelines will not automatically receive a permit.
Although all requirements in § 230.10 must be met, the compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities.
(a) Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.
(1) For the purpose of this requirement, practicable alternatives include, but are not limited to:
(i) Activities which do not involve a discharge of dredged or fill material into the waters of the United States or ocean waters;
(ii) Discharges of dredged or fill material at other locations in waters of the United States or ocean waters;
(2) An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose -of the proposed activity may be con-sidered.
(3) Where the activity associated with a discharge which is proposed for a special aquatic site (as defined in subpart E) does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not “water dependent”), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise. In addition, where a discharge is proposed for a special aquatic site, all practicable alternatives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise.
(4) For actions subject to NEPA, where the Corps of Engineers is the permitting agency, the analysis of alternatives required for NEPA environmental documents, including supplemental Corps NEPA documents, will in most cases provide the information for the evaluation of alternatives under these Guidelines. On occasion, these NEPA documents may address a broader range of alternatives than required to be considered under this paragraph or may not have considered the alternatives in sufficient detail to respond to the requirements of these Guidelines. In the latter case, it may be necessary to supplement these NEPA documents with this additional information.
(5) To the extent that practicable alternatives have been identified and evaluated under a Coastal Zone Management program, a section 208 program, or other planning process, such evaluation shall be considered by the permitting authority as part of the consideration of alternatives under the Guidelines. Where such evaluation is less complete than that contemplated under this subsection, it must be supplemented accordingly.
(b) No discharge of dredged or fill material shall be permitted if it:
(1) Causes or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard;
(2) Violates any applicable toxic effluent standard or prohibition under section 307 of the Act;
(3) Jeopardizes the continued existence of species listed as endangered or threatened under the Endangered Species Act of 1973, as amended, or results in likelihood of the destruction or adverse modification of a habitat which is determined by the Secretary of Interior or Commerce, as appropriate, to be a critical habitat under the Endangered Species Act of 1973, as amended. If an exemption has been granted by the Endangered Species Committee, the terms of such exemption shall apply in lieu of this subparagraph;
(4) Violates any requirement imposed by the Secretary of Commerce to protect any marine sanctuary designated under title III of the Marine Protection, Research, and Sanctuaries Act -of 1972.
(c) Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States. Findings of significant degradation related to the proposed discharge shall be based upon appropriate factual
(1) Significantly adverse effects of the discharge of pollutants on human health or welfare, including but not limited to effects on municipal water supplies, plankton, fish, shellfish, wildlife, and special aquatic sites.
(2) Significantly adverse effects of the discharge of pollutants on life stages of aquatic life and other wildlife dependent on aquatic ecosystems, including the transfer, concentration, and spread of pollutants or their byproducts outside of the disposal site through biological, physical, and chemical processes;
(3) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem diversity, productivity, and stability. Such effects may include, but are not limited to, loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients, purify water, or reduce wave energy; or
(4) Significantly adverse effects of discharge of pollutants on recreational, aesthetic, and economic values.
(d) Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem. Subpart H identifies such possible steps.
The permitting authority shall determine in writing the potential short-term or long-term effects of a proposed discharge of dredged or fill material on the physical, chemical, and biological components of the aquatic environment in light of subparts C through F. Such factual determinations shall be used in § 230.12 in making findings of compliance or non-compliance with the restrictions on discharge in § 230.10. The evaluation and testing procedures described in § 230.60 and § 230.61 of subpart G shall be used as necessary to make, and shall be described in, such determination. The determinations of effects of each proposed discharge shall include the following:
(a)
(b)
(c)
(d)
(e)
(f)
(2) The permitting authority and the Regional Administrator shall consider the following factors in determining the acceptability of a proposed mixing zone:
(i) Depth of water at the disposal site;
(ii) Current velocity, direction, and variability at the disposal site;
(iii) Degree of turbulence;
(iv) Stratification attributable to causes such as obstructions, salinity or density profiles at the disposal site;
(v) Discharge vessel speed and direction, if appropriate;
(vi) Rate of discharge;
(vii) Ambient concentration of constituents of interest;
(viii) Dredged material characteristics, particularly concentrations of constituents, amount of material, type of material (sand, silt, clay, etc.) and settling velocities;
(ix) Number of discharge actions per unit of time;
(x) Other factors of the disposal site that affect the rates and patterns of mixing.
(g)
(2) Cumulative effects attributable to the discharge of dredged or fill material in waters of the United States should be predicted to the extent reasonable and practical. The permitting authority shall collect information and solicit information from other sources about the cumulative impacts on the aquatic ecosystem. This information shall be documented and considered during the decision-making process concerning the evaluation of individual permit applications, the issuance of a General permit, and monitoring and enforcement of existing permits.
(h)
(2) Some examples of secondary effects on an aquatic ecosystem are fluctuating water levels in an impoundment and downstream associated with the operation of a dam, septic tank leaching and surface runoff from residential or commercial developments on fill, and leachate and runoff from a sanitary landfill located in waters of the U.S. Activities to be conducted on fast land created by the discharge of dredged or fill material in waters of the United States may have secondary impacts within those waters which should be considered in evaluating the impact of creating those fast lands.
(a) On the basis of these Guidelines (subparts C through G) the proposed disposal sites for the discharge of dredged or fill material must be:
(1) Specified as complying with the requirements of these Guidelines; or
(2) Specified as complying with the requirements of these Guidelines with the inclusion of appropriate and practicable discharge conditions (see subpart H) to minimize pollution or adverse effects to the affected aquatic ecosystems; or
(3) Specified as failing to comply with the requirements of these Guidelines where:
(i) There is a practicable alternative to the proposed discharge that would have less adverse effect on the aquatic ecosystem, so long as such alternative does not have other significant adverse environmental consequences; or
(ii) The proposed discharge will result in significant degradation of the aquatic ecosystem under § 230.10(b) or (c); or
(iii) The proposed discharge does not include all appropriate and practicable measures to minimize potential harm to the aquatic ecosystem; or
(iv) There does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with these Guidelines.
(b) Findings under this section shall be set forth in writing by the permitting authority for each proposed discharge and made available to the permit applicant. These findings shall include the factual determinations required by § 230.11, and a brief explanation of any adaptation of these Guidelines to the activity under consideration. In the case of a General permit, such findings shall be prepared at the time of issuance of that permit rather than for each subsequent discharge under the authority of that permit.
The effects described in this subpart should be considered in making the factual determinations and the findings of compliance or non-compliance in subpart B.
(a) The substrate of the aquatic ecosystem underlies open waters of the United States and constitutes the surface of wetlands. It consists of organic and inorganic solid materials and includes water and other liquids or gases that fill the spaces between solid -particles.
(b) Possible loss of environmental characteristics and values: The discharge of dredged or fill material can result in varying degrees of change in the complex physical, chemical, and biological characteristics of the substrate. Discharges which alter substrate elevation or contours can result in changes in water circulation, depth, current pattern, water fluctuation and water temperature. Discharges may adversely affect bottom-dwelling organisms at the site by smothering immobile forms or forcing mobile forms to migrate. Benthic forms present prior to a discharge are unlikely to recolonize on the discharged material if it is very dissimilar from that of the discharge site. Erosion, slumping, or lateral displacement of surrounding bottom of such deposits can adversely affect areas of the substrate outside the perimeters of the disposal site by changing or destroying habitat. The bulk and composition of the discharged material and the location, method, and timing of discharges may all influence the degree of impact on the substrate.
(a) Suspended particulates in the aquatic ecosystem consist of fine-grained mineral particles, usually smaller than silt, and organic particles. Suspended particulates may enter water bodies as a result of land runoff, flooding, vegetative and planktonic breakdown, resuspension of bottom sediments, and man's activities including dredging and filling. Particulates may remain suspended in the water column for variable periods of time as a result of such factors as agitation of the water mass, particulate specific gravity, particle shape, and physical and chemical properties of particle surfaces.
(b) Possible loss of environmental characteristics and values: The discharge of dredged or fill material can result in greatly elevated levels of suspended particulates in the water column for varying lengths of time. These new levels may reduce light penetration and lower the rate of photosynthesis and the primary productivity of an aquatic area if they last long enough. Sight-dependent species may suffer reduced feeding ability leading to limited growth and lowered resistance to disease if high levels of suspended particulates persist. The biological and the chemical content of the suspended material may react with the dissolved oxygen in the water, which can result in oxygen depletion. Toxic metals and organics, pathogens, and viruses absorbed or adsorbed to fine-grained particulates in the material may become biologically available to organisms either in the water column or on the substrate. Significant increases in suspended particulate levels create turbid plumes which are highly visible and aesthetically displeasing. The extent and persistence of these adverse impacts caused by discharges depend upon the relative increase in suspended particulates above the amount occurring naturally, the duration of the higher levels, the current patterns, water level, and fluctuations present when such discharges occur, the volume, rate, and duration of the discharge, particulate deposition, and the seasonal timing of the discharge.
(a) Water is the part of the aquatic ecosystem in which organic and inorganic constituents are dissolved and suspended. It constitutes part of the liquid phase and is contained by the substrate. Water forms part of a dynamic aquatic life-supporting system. Water clarity, nutrients and chemical
(b) Possible loss of environmental characteristics and values: The discharge of dredged or fill material can change the chemistry and the physical characteristics of the receiving water at a disposal site through the introduction of chemical constituents in suspended or dissolved form. Changes in the clarity, color, odor, and taste of water and the addition of contaminants can reduce or eliminate the suitability of water bodies for populations of aquatic organisms, and for human consumption, recreation, and aesthetics. The introduction of nutrients or organic material to the water column as a result of the discharge can lead to a high biochemical oxygen demand (BOD), which in turn can lead to reduced dissolved oxygen, thereby potentially affecting the survival of many aquatic organisms. Increases in nutrients can favor one group of organisms such as algae to the detriment of other more desirable types such as submerged aquatic vegetation, potentially causing adverse health effects, objectionable tastes and odors, and other problems.
(a) Current patterns and water circulation are the physical movements of water in the aquatic ecosystem. Currents and circulation respond to natural forces as modified by basin shape and cover, physical and chemical characteristics of water strata and masses, and energy dissipating factors.
(b) Possible loss of environmental characteristics and values: The discharge of dredged or fill material can modify current patterns and water circulation by obstructing flow, changing the direction or velocity of water flow, changing the direction or velocity of water flow and circulation, or otherwise changing the dimensions of a water body. As a result, adverse changes can occur in: Location, structure, and dynamics of aquatic communities; shoreline and substrate erosion and depositon rates; the deposition of suspended particulates; the rate and extent of mixing of dissolved and suspended components of the water body; and water stratification.
(a) Normal water fluctuations in a natural aquatic system consist of daily, seasonal, and annual tidal and flood fluctuations in water level. Biological and physical components of such a system are either attuned to or characterized by these periodic water fluctuations.
(b) Possible loss of environmental characteristics and values: The discharge of dredged or fill material can alter the normal water-level fluctuation pattern of an area, resulting in prolonged periods of inundation, exaggerated extremes of high and low water, or a static, nonfluctuating water level. Such water level modifications may change salinity patterns, alter erosion or sedimentation rates, aggravate water temperature extremes, and upset the nutrient and dissolved oxygen balance of the aquatic ecosystem. In addition, these modifications can alter or destroy communities and populations of aquatic animals and vegetation, induce populations of nuisance organisms, modify habitat, reduce food supplies, restrict movement of aquatic fauna, destroy spawning areas, and change adjacent, upstream, and downstream areas.
(a) Salinity gradients form where salt water from the ocean meets and mixes with fresh water from land.
(b) Possible loss of environmental characteristics and values: Obstructions which divert or restrict flow of either fresh or salt water may change existing salinity gradients. For example, partial blocking of the entrance to an estuary or river mouth that significantly restricts the movement of the salt water into and out of that area can effectively lower the volume of salt water available for mixing within that estuary. The downstream migration of the salinity gradient can occur, displacing the maximum sedimentation zone and requiring salinity-dependent aquatic biota to adjust to the new conditions, move to new locations if possible, or perish. In the freshwater zone,
Possible actions to minimize adverse impacts regarding site characteristics can be found in subpart H.
The impacts described in this subpart should be considered in making the factual determinations and the findings of compliance or non-compliance in subpart B.
(a) An endangered species is a plant or animal in danger of extinction throughout all or a significant portion of its range. A threatened species is one in danger of becoming an endangered species in the foreseeable future throughout all or a significant portion of its range. Listings of threatened and endangered species as well as critical habitats are maintained by some individual States and by the U.S. Fish and Wildlife Service of the Department of the Interior (codified annually at 50 CFR 17.11). The Department of Commerce has authority over some threatened and endangered marine mammals, fish and reptiles.
(b) Possible loss of values: The major potential impacts on threatened or endangered species from the discharge of dredged or fill material include:
(1) Covering or otherwise directly killing species;
(2) The impairment or destruction of habitat to which these species are limited. Elements of the aquatic habitat which are particularly crucial to the continued survival of some threatened or endangered species include adequate good quality water, spawning and maturation areas, nesting areas, protective cover, adequate and reliable food supply, and resting areas for migratory species. Each of these elements can be adversely affected by changes in either the normal water conditions for clarity, chemical content, nutrient balance, dissolved oxygen, pH, temperature, salinity, current patterns, circulation and fluctuation, or the physical removal of habitat; and
(3) Facilitating incompatible activities.
(c) Where consultation with the Secretary of the Interior occurs under section 7 of the Endangered Species Act, the conclusions of the Secretary concerning the impact(s) of the discharge on threatened and endangered species and their habitat shall be considered final.
(a) Aquatic organisms in the food web include, but are not limited to, finfish, crustaceans, mollusks, insects, annelids, planktonic organisms, and the plants and animals on which they feed and depend upon for their needs. All forms and life stages of an organism, throughout its geographic range, are included in this category.
(b) Possible loss of values: The discharge of dredged or fill material can variously affect populations of fish, crustaceans, mollusks and other food web organisms through the release of contaminants which adversely affect adults, juveniles, larvae, or eggs, or result in the establishment or proliferation of an undesirable competitive species of plant or animal at the expense of the desired resident species. Suspended particulates settling on attached or buried eggs can smother the eggs by limiting or sealing off their exposure to oxygenated water. Discharge of dredged and fill material may result in the debilitation or death of sedentary organisms by smothering, exposure to chemical contaminants in dissolved or suspended form, exposure to high levels of suspended particulates, reduction in food supply, or alteration of the substrate upon which they are dependent. Mollusks are particularly
(a) Wildlife associated with aquatic ecosystems are resident and transient mammals, birds, reptiles, and amphibians.
(b) Possible loss of values: The discharge of dredged or fill material can result in the loss or change of breeding and nesting areas, escape cover, travel corridors, and preferred food sources for resident and transient wildlife species associated with the aquatic ecosystem. These adverse impacts upon wildlife habitat may result from changes in water levels, water flow and circulation, salinity, chemical content, and substrate characteristics and elevation. Increased water turbidity can adversely affect wildlife species which rely upon sight to feed, and disrupt the respiration and feeding of certain aquatic wildlife and food chain organisms. The availability of contaminants from the discharge of dredged or fill material may lead to the bioaccumulation of such contaminants in wildlife. Changes in such physical and chemical factors of the environment may favor the introduction of undesirable plant and animal species at the expense of resident species and communities. In some aquatic environments lowering plant and animal species diversity may disrupt the normal functions of the ecosystem and lead to reductions in overall biological productivity.
Possible actions to minimize adverse impacts regarding characteristics of biological components of the aquatic ecosystem can be found in subpart H.
The impacts described in this subpart should be considered in making the factual determinations and the findings of compliance or non-compliance in subpart B. The definition of special aquatic sites is found in § 230.3(q-1).
(a) Sanctuaries and refuges consist of areas designated under State and Federal laws or local ordinances to be managed principally for the preservation and use of fish and wildlife resources.
(b) Possible loss of values: Sanctuaries and refuges may be affected by discharges of dredged or fill material which will:
(1) Disrupt the breeding, spawning, migratory movements or other critical life requirements of resident or transient fish and wildlife resources;
(2) Create unplanned, easy and incompatible human access to remote aquatic areas;
(3) Create the need for frequent maintenance activity;
(4) Result in the establishment of undesirable competitive species of plants and animals;
(5) Change the balance of water and land areas needed to provide cover, food, and other fish and wildlife habitat requirements in a way that modifies sanctuary or refuge management practices;
(6) Result in any of the other adverse impacts discussed in subparts C and D as they relate to a particular sanctuary or refuge.
(a)(1) Wetlands consist of areas that are inundated or saturated by surface
(2) Where wetlands are adjacent to open water, they generally constitute the transition to upland. The margin between wetland and open water can best be established by specialists familiar with the local environment, particularly where emergent vegetation merges with submerged vegetation over a broad area in such places as the lateral margins of open water, headwaters, rainwater catch basins, and groundwater seeps. The landward margin of wetlands also can best be identified by specialists familiar with the local environment when vegetation from the two regions merges over a broad area.
(3) Wetland vegetation consists of plants that require saturated soils to survive (obligate wetland plants) as well as plants, including certain trees, that gain a competitive advantage over others because they can tolerate prolonged wet soil conditions and their competitors cannot. In addition to plant populations and communities, wetlands are delimited by hydrological and physical characteristics of the environment. These characteristics should be considered when information about them is needed to supplement information available about vegetation, or where wetland vegetation has been removed or is dormant.
(b) Possible loss of values: The discharge of dredged or fill material in wetlands is likely to damage or destroy habitat and adversely affect the biological productivity of wetlands ecosystems by smothering, by dewatering, by permanently flooding, or by altering substrate elevation or periodicity of water movement. The addition of dredged or fill material may destroy wetland vegetation or result in advancement of succession to dry land species. It may reduce or eliminate nutrient exchange by a reduction of the system's productivity, or by altering current patterns and velocities. Disruption or elimination of the wetland system can degrade water quality by obstructing circulation patterns that flush large expanses of wetland systems, by interfering with the filtration function of wetlands, or by changing the aquifer recharge capability of a wetland. Discharges can also change the wetland habitat value for fish and wildlife as discussed in subpart D. When disruptions in flow and circulation patterns occur, apparently minor loss of wetland acreage may result in major losses through secondary impacts. Discharging fill material in wetlands as part of municipal, industrial or recreational development may modify the capacity of wetlands to retain and store floodwaters and to serve as a buffer zone shielding upland areas from wave actions, storm damage and erosion.
(a) Mud flats are broad flat areas along the sea coast and in coastal rivers to the head of tidal influence and in inland lakes, ponds, and riverine systems. When mud flats are inundated, wind and wave action may resuspend bottom sediments. Coastal mud flats are exposed at extremely low tides and inundated at high tides with the water table at or near the surface of the substrate. The substrate of mud flats contains organic material and particles smaller in size than sand. They are either unvegetated or vegetated only by algal mats.
(b) Possible loss of values: The discharge of dredged or fill material can cause changes in water circulation patterns which may permanently flood or dewater the mud flat or disrupt periodic inundation, resulting in an increase in the rate of erosion or accretion. Such changes can deplete or eliminate mud flat biota, foraging areas, and nursery areas. Changes in inundation patterns can affect the chemical and biological exchange and decomposition process occurring on the mud flat and change the deposition of suspended material affecting the productivity of the area. Changes may reduce the mud flat's capacity to dissipate storm surge runoff.
(a) Vegetated shallows are permanently inundated areas that under normal circumstances support communities of rooted aquatic vegetation, such as turtle grass and eelgrass in estuarine or marine systems as well as a number of freshwater species in rivers and lakes.
(b) Possible loss of values: The discharge of dredged or fill material can smother vegetation and benthic organisms. It may also create unsuitable conditions for their continued vigor by: (1) Changing water circulation patterns; (2) releasing nutrients that increase undesirable algal populations; (3) releasing chemicals that adversely affect plants and animals; (4) increasing turbidity levels, thereby reducing light penetration and hence photosynthesis; and (5) changing the capacity of a vegetated shallow to stabilize bottom materials and decrease channel shoaling. The discharge of dredged or fill material may reduce the value of vegetated shallows as nesting, spawning, nursery, cover, and forage areas, as well as their value in protecting shorelines from erosion and wave actions. It may also encourage the growth of nuisance vegetation.
(a) Coral reefs consist of the skeletal deposit, usually of calcareous or silicaceous materials, produced by the vital activities of anthozoan polyps or other invertebrate organisms present in growing portions of the reef.
(b) Possible loss of values: The discharge of dredged or fill material can adversely affect colonies of reef building organisms by burying them, by releasing contaminants such as hydrocarbons into the water column, by reducing light penetration through the water, and by increasing the level of suspended particulates. Coral organisms are extremely sensitive to even slight reductions in light penetration or increases in suspended particulates. These adverse effects will cause a loss of productive colonies which in turn provide habitat for many species of highly specialized aquatic organisms.
(a) Steep gradient sections of streams are sometimes characterized by riffle and pool complexes. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a coarse substrate in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. Pools are characterized by a slower stream velocity, a steaming flow, a smooth surface, and a finer substrate. Riffle and pool complexes are particularly valuable habitat for fish and wildlife.
(b) Possible loss of values: Discharge of dredged or fill material can eliminate riffle and pool areas by displacement, hydrologic modification, or sedimentation. Activities which affect riffle and pool areas and especially riffle/pool ratios, may reduce the aeration and filtration capabilities at the discharge site and downstream, may reduce stream habitat diversity, and may retard repopulation of the disposal site and downstream waters through sedimentation and the creation of unsuitable habitat. The discharge of dredged or fill material which alters stream hydrology may cause scouring or sedimentation of riffles and pools. Sedimentation induced through hydrological modification or as a direct result of the deposition of unconsolidated dredged or fill material may clog riffle and pool areas, destroy habitats, and create anaerobic conditions. Eliminating pools and meanders by the discharge of dredged or fill material can reduce water holding capacity of streams and cause rapid runoff from a watershed. Rapid runoff can deliver large quantities of flood water in a short time to downstream areas resulting in the destruction of natural habitat, high property loss, and the need for further hydraulic modification.
Possible actions to minimize adverse impacts on site or material characteristics can be found in subpart H.
The effects described in this subpart should be considered in making the factual
(a) Municipal and private water supplies consist of surface water or ground water which is directed to the intake of a municipal or private water supply system.
(b) Possible loss of values: Discharges can affect the quality of water supplies with respect to color, taste, odor, chemical content and suspended particulate concentration, in such a way as to reduce the fitness of the water for consumption. Water can be rendered unpalatable or unhealthy by the addition of suspended particulates, viruses and pathogenic organisms, and dissolved materials. The expense of removing such substances before the water is delivered for consumption can be high. Discharges may also affect the quantity of water available for municipal and private water supplies. In addition, certain commonly used water treatment chemicals have the potential for combining with some suspended or dissolved substances from dredged -or fill material to form other prod-ucts that can have a toxic effect on -con-sumers.
(a) Recreational and commercial fisheries consist of harvestable fish, crustaceans, shellfish, and other aquatic organisms used by man.
(b) Possible loss of values: The discharge of dredged or fill materials can affect the suitability of recreational and commercial fishing grounds as habitat for populations of consumable aquatic organisms. Discharges can result in the chemical contamination of recreational or commercial fisheries. They may also interfere with the reproductive success of recreational and commercially important aquatic species through disruption of migration and spawning areas. The introduction of pollutants at critical times in their life cycle may directly reduce populations of commercially important aquatic organisms or indirectly reduce them by reducing organisms upon which they depend for food. Any of these impacts can be of short duration or prolonged, depending upon the physical and chemical impacts of the discharge and the biological availability of contaminants to aquatic organisms.
(a) Water-related recreation encompasses activities undertaken for amusement and relaxation. Activities encompass two broad categories of use: consumptive, e.g., harvesting resources by hunting and fishing; and non-comsumptive, e.g. canoeing and sight-seeing.
(b) Possible loss of values: One of the more important direct impacts of dredged or fill disposal is to impair or destroy the resources which support recreation activities. The disposal of dredged or fill material may adversely modify or destroy water use for recreation by changing turbidity, suspended particulates, temperature, dissolved oxygen, dissolved materials, toxic materials, pathogenic organisms, quality of habitat, and the aesthetic qualities of sight, taste, odor, and color.
(a) Aesthetics associated with the aquatic ecosystem consist of the perception of beauty by one or a combination of the senses of sight, hearing, touch, and smell. Aesthetics of aquatic ecosystems apply to the quality of life enjoyed by the general public and property owners.
(b) Possible loss of values: The discharge of dredged or fill material can mar the beauty of natural aquatic ecosystems by degrading water quality, creating distracting disposal sites, inducing inappropriate development, encouraging unplanned and incompatible human access, and by destroying vital elements that contribute to the compositional harmony or unity, visual distinctiveness, or diversity of an area. The discharge of dredged or fill material can adversely affect the particular features, traits, or characteristics of an aquatic area which make it valuable to property owners. Activities which degrade water quality, disrupt natural substrate and vegetational characteristics, deny access to or visibility of the resource, or result in changes in odor, air quality, or noise
(a) These preserves consist of areas designated under Federal and State laws or local ordinances to be managed for their aesthetic, educational, historical, recreational, or scientific value.
(b) Possible loss of values: The discharge of dredged or fill material -into such areas may modify the aes-thetic, educational, historical, rec-re-a-tional and/or scientific qualities there-by reducing or eliminating the uses -for which such sites are set aside and -managed.
Possible actions to minimize adverse impacts regarding site or material characteristics can be found in subpart H.
The purpose of these evaluation procedures and the chemical and biological testing sequence outlined in § 230.61 is to provide information to reach the determinations required by § 230.11. Where the results of prior evaluations, chemical and biological tests, scientific research, and experience can provide information helpful in making a determination, these should be used. Such prior results may make new testing unnecessary. The information used shall be documented. Where the same information applies to more than -one determination, it may be docu-mented once and referenced in later deter-minations.
(a) If the evaluation under paragraph (b) indicates the dredged or fill material is not a carrier of contaminants, then the required determinations pertaining to the presence and effects of contaminants can be made without testing. Dredged or fill material is most likely to be free from chemical, biological, or other pollutants where it is composed primarily of sand, gravel, or other naturally occurring inert material. Dredged material so composed is generally found in areas of high current or wave energy such as streams with large bed loads or coastal areas with shifting bars and channels. However, when such material is discolored or contains other indications that contaminants may be present, further inquiry should be made.
(b) The extraction site shall be examined in order to assess whether it is sufficiently removed from sources of pollution to provide reasonable assurance that the proposed discharge material is not a carrier of contaminants. Factors to be considered include but are not limited to:
(1) Potential routes of contaminants or contaminated sediments to the extraction site, based on hydrographic or other maps, aerial photography, or other materials that show watercourses, surface relief, proximity to tidal movement, private and public roads, location of buildings, municipal and industrial areas, and agricultural or forest lands.
(2) Pertinent results from tests previously carried out on the material at the extraction site, or carried out on similar material for other permitted projects in the vicinity. Materials shall be considered similar if the sources of contamination, the physical configuration of the sites and the sediment composition of the materials are comparable, in light of water circulation and stratification, sediment accumulation and general sediment characteristics. Tests from other sites may be relied on only if no changes have occurred at the extraction sites to render the results irrelevant.
(3) Any potential for significant introduction of persistent pesticides from land runoff or percolation;
(4) Any records of spills or disposal of petroleum products or substances designated as hazardous under section 311 of the Clean Water Act (See 40 CFR part 116);
(5) Information in Federal, State and local records indicating significant introduction of pollutants from industries, municipalities, or other sources, including types and amounts of waste materials discharged along the potential routes of contaminants to the extraction site; and
(6) Any possibility of the presence of substantial natural deposits of minerals or other substances which could be released to the aquatic environment in harmful quantities by man-induced discharge activities.
(c) To reach the determinations in § 230.11 involving potential effects of the discharge on the characteristics of the disposal site, the narrative guidance in subparts C through F shall be used along with the general evaluation procedure in § 230.60 and, if necessary, the chemical and biological testing sequence in § 230.61. Where the discharge site is adjacent to the extraction site and subject to the same sources of contaminants, and materials at the two sites are substantially similar, the fact that the material to be discharged may be a carrier of contaminants is not likely to result in degradation of the disposal site. In such circumstances, when dissolved material and suspended particulates can be controlled to prevent carrying pollutants to less contaminated areas, testing will not -be required.
(d) Even if the § 230.60(b) evaluation (previous tests, the presence of polluting industries and information about their discharge or runoff into waters of the U.S., bioinventories, etc.) leads to the conclusion that there is a high probability that the material proposed for discharge is a carrier of contaminants, testing may not be necessary if constraints are available to reduce contamination to acceptable levels within the disposal site and to prevent contaminants from being transported beyond the boundaries of the disposal site, if such constraints are acceptable to the permitting authority and the Regional Administrator, and if the potential discharger is willing and able to implement such constraints. However, even if tests are not performed, the permitting authority must still determine the probable impact of the operation on the receiving aquatic ecosystem. Any decision not to test must be explained in the determinations made under § 230.11.
The Agency is today proposing revised testing guidelines. The evaluation and testing procedures in this section are based on the 1975 section 404(b)(1) interim final Guidelines and shall remain in effect until the revised testing guidelines are published as final regulations.
(a) No single test or approach can be applied in all cases to evaluate the effects of proposed discharges of dredged or fill materials. This section provides some guidance in determining which test and/or evaluation procedures are appropriate in a given case. Interim guidance to applicants concerning the applicability of specific approaches or procedures will be furnished by the permitting authority.
(b)
(1)
(2)
(ii) Major constituents to be analyzed in the elutriate are those deemed critical by the permitting authority, after evaluating and considering any comments received from the Regional Administrator, and considering results of the evaluation in § 230.60. Elutriate concentrations should be compared to concentrations of the same constituents in water from the disposal site. Results should be evaluated in light of the volume and rate of the intended discharge, the type of discharge, the hydrodynamic regime at the disposal site, and other information relevant to the impact on water quality. The permitting authority should consider the mixing zone in evaluating water column effects. The permitting authority may specify bioassays when such procedures will be of value.
(3)
(c) Procedure for comparison of sites.
(1) When an inventory of the total concentration of contaminants would be of value in comparing sediment at the dredging site with sediment at the disposal site, the permitting authority may require a sediment chemical analysis. Markedly different concentrations of contaminants between the excavation and disposal sites may aid in making an environmental assessment of the proposed disposal operation. Such differences should be interpreted in terms of the potential for harm as supported by any pertinent scientific literature.
(2) When an analysis of biological community structure will be of value to assess the potential for adverse environmental impact at the proposed disposal site, a comparison of the biological characteristics between the excavation and disposal sites may be required by the permitting authority. Biological indicator species may be useful in evaluating the existing degree of stress at both sites. Sensitive species representing community components colonizing various substrate types within the sites should be identified as possible bioassay organisms if tests for toxicity are required. Community structure studies should be performed only when they will be of value in determining discharge conditions. This is particularly applicable to large quantities of dredged material known to contain adverse quantities of toxic materials. Community studies should include benthic organisms such as microbiota and harvestable shellfish and finfish. Abundance, diversity, and distribution should be documented and correlated with substrate type and other appropriate physical and chemical environmental characteristics.
(d) Physical tests and evaluation. The effect of a discharge of dredged or fill material on physical substrate characteristics at the disposal site, as well as on the water circulation, fluctuation, salinity, and suspended particulates content there, is important in making factual determinations in § 230.11. Where information on such effects is not otherwise available to make these factual determinations, the permitting authority shall require appropriate physical tests and evaluations as are justified and deemed necessary. Such tests may include sieve tests, settleability tests, compaction tests, mixing zone and suspended particulate plume determinations, and site assessments of water flow, circulation, and salinity characteristics.
There are many actions which can be undertaken in response to § 203.10(d) to minimize the adverse effects of discharges of dredged or fill material. Some of these, grouped by type of activity, are listed in this subpart.
The effects of the discharge can be minimized by the choice of the disposal site. Some of the ways to accomplish this are by:
(a) Locating and confining the discharge to minimize smothering of -organisms;
(b) Designing the discharge to avoid a disruption of periodic water inundation patterns;
(c) Selecting a disposal site that has been used previously for dredged ma-terial discharge;
(d) Selecting a disposal site at which the substrate is composed of material similar to that being discharged, such as discharging sand on sand or mud -on mud;
(e) Selecting the disposal site, the discharge point, and the method of -discharge to minimize the extent of -any plume;
(f) Designing the discharge of dredged or fill material to minimize or prevent the creation of standing bodies of water in areas of normally fluctuating water levels, and minimize or prevent the drainage of areas subject to such fluctuations.
The effects of a discharge can be minimized by treatment of, or limitations on the material itself, such as:
(a) Disposal of dredged material in such a manner that physiochemical conditions are maintained and the potency and availability of pollutants are reduced.
(b) Limiting the solid, liquid, and gaseous components of material to be discharged at a particular site;
(c) Adding treatment substances to the discharge material;
(d) Utilizing chemical flocculants to enhance the deposition of suspended particulates in diked disposal areas.
The effects of the dredged or fill material after discharge may be controlled by:
(a) Selecting discharge methods and disposal sites where the potential for erosion, slumping or leaching of materials into the surrounding aquatic ecosystem will be reduced. These sites or methods include, but are not limited to:
(1) Using containment levees, sediment basins, and cover crops to reduce erosion;
(2) Using lined containment areas to reduce leaching where leaching of chemical constituents from the discharged material is expected to be a problem;
(b) Capping in-place contaminated material with clean material or selectively discharging the most contaminated material first to be capped with the remaining material;
(c) Maintaining and containing discharged material properly to prevent point and nonpoint sources of pollution;
(d) Timing the discharge to minimize impact, for instance during periods of unusual high water flows, wind, wave, and tidal actions.
The effects of a discharge can be minimized by the manner in which it is dispersed, such as:
(a) Where environmentally desirable, distributing the dredged material widely in a thin layer at the disposal site to maintain natural substrate contours and elevation;
(b) Orienting a dredged or fill material mound to minimize undesirable obstruction to the water current or circulation pattern, and utilizing natural bottom contours to minimize the size of the mound;
(c) Using silt screens or other appropriate methods to confine suspended particulate/turbidity to a small area where settling or removal can occur;
(d) Making use of currents and circulation patterns to mix, disperse and dilute the discharge;
(e) Minimizing water column turbidity by using a submerged diffuser system. A similar effect can be accomplished by submerging pipeline discharges or otherwise releasing materials near the bottom;
(f) Selecting sites or managing discharges to confine and minimize the release of suspended particulates to give decreased turbidity levels and to maintain light penetration for organisms;
(g) Setting limitations on the amount of material to be discharged per unit of time or volume of receiving water.
Discharge technology should be adapted to the needs of each site. In determining whether the discharge operation sufficiently minimizes adverse
(a) Using appropriate equipment or machinery, including protective devices, and the use of such equipment or machinery in activities related to the discharge of dredged or fill material;
(b) Employing appropriate maintenance and operation on equipment or machinery, including adequate training, staffing, and working procedures;
(c) Using machinery and techniques that are especially designed to reduce damage to wetlands. This may include machines equipped with devices that scatter rather than mound excavated materials, machines with specially designed wheels or tracks, and the use of mats under heavy machines to reduce wetland surface compaction and -rutting;
(d) Designing access roads and channel spanning structures using culverts, open channels, and diversions that will pass both low and high water flows, accommodate fluctuating water levels, and maintain circulation and faunal movement;
(e) Employing appropriate machinery and methods of transport of the material for discharge.
Minimization of adverse effects on populations of plants and animals can be achieved by:
(a) Avoiding changes in water current and circulation patterns which would interfere with the movement of animals;
(b) Selecting sites or managing discharges to prevent or avoid creating habitat conducive to the development of undesirable predators or species which have a competitive edge ecologically over indigenous plants or -animals;
(c) Avoiding sites having unique habitat or other value, including habitat of threatened or endangered -species;
(d) Using planning and construction practices to institute habitat development and restoration to produce a new or modified environmental state of higher ecological value by displacement of some or all of the existing environmental characteristics. Habitat development and restoration techniques can be used to minimize adverse impacts and to compensate for destroyed habitat. Use techniques that have been demonstrated to be effective in circumstances similar to those under consideration wherever possible. Where proposed development and restoration techniques have not yet advanced to the pilot demonstration stage, initiate their use on a small scale to allow corrective action if unanticipated adverse impacts occur;
(e) Timing discharge to avoid spawning or migration seasons and other biologically critical time periods;
(f) Avoiding the destruction of remnant natural sites within areas already affected by development.
Minimization of adverse effects on human use potential may be achieved by:
(a) Selecting discharge sites and following discharge procedures to prevent or minimize any potential damage to the aesthetically pleasing features of the aquatic site (e.g. viewscapes), particularly with respect to water quality;
(b) Selecting disposal sites which are not valuable as natural aquatic areas;
(c) Timing the discharge to avoid the seasons or periods when human recreational activity associated with the aquatic site is most important;
(d) Following discharge procedures which avoid or minimize the disturbance of aesthetic features of an aquatic site or ecosystem;
(e) Selecting sites that will not be detrimental or increase incompatible human activity, or require the need for frequent dredge or fill maintenance activity in remote fish and wildlife areas;
(f) Locating the disposal site outside of the vicinity of a public water supply intake.
(a) In the case of fills, controlling runoff and other discharges from activities to be conducted on the fill;
(b) In the case of dams, designing water releases to accommodate the needs of fish and wildlife;
(c) In dredging projects funded by Federal agencies other than the Corps of Engineers, maintain desired water
(d) When a significant ecological change in the aquatic environment is proposed by the discharge of dredged or fill material, the permitting authority should consider the ecosystem that will be lost as well as the environmental benefits of the new system.
(a) Consistent with these Guidelines, EPA and the permitting authority, on their own initiative or at the request of any other party and after consultation with any affected State that is not the permitting authority, may identify sites which will be considered as:
(1) Possible future disposal sites, including existing disposal sites and non-sensitive areas; or
(2) Areas generally unsuitable for disposal site specification;
(b) The identification of any area as a possible future disposal site should not be deemed to constitute a permit for the discharge of dredged or fill material within such area or a specification of a disposal site. The identification of areas that generally will not be available for disposal site specification should not be deemed as prohibiting applications for permits to discharge dredged or fill material in such areas. Either type of identification constitutes information to facilitate individual or General permit application and processing.
(c) An appropriate public notice of the proposed identification of such areas shall be issued;
(d) To provide the basis for advanced identification of disposal areas, and areas unsuitable for disposal, EPA and the permitting authority shall consider the likelihood that use of the area in question for dredged or fill material disposal will comply with these Guidelines. To facilitate this analysis, EPA and the permitting authority should review available water resources management data including data available from the public, other Federal and State agencies, and information from approved Coastal Zone Management programs and River Basin Plans;
(e) The permitting authority should maintain a public record of the identified areas and a written statement of the basis for identification.
33 U.S.C. 1344(c).
(a) The Regulations of this part include the procedures to be followed by the Environmental Protection agency in prohibiting or withdrawing the specification, or denying, restricting, or withdrawing the use for specification, of any defined area as a disposal site for dredged or fill material pursuant to section 404(c) of the Clean Water Act (“CWA”), 33 U.S.C. 1344(c). The U.S. Army Corps of Engineers or a state with a 404 program which has been approved under section 404(h) may grant permits specifying disposal sites for dredged or fill material by determining that the section 404(b)(1) Guidelines (40 CFR Part 230) allow specification of a particular site to receive dredged or fill material. The Corps may also grant permits by determining that the discharge of dredged or fill material is necessary under the economic impact provision of section 404(b)(2). Under section 404(c), the Administrator may exercise a veto over the specification by the U.S. Army Corps of Engineers or by a state of a site for the discharge of dredged or fill material. The Administrator may also prohibit the specification of a site under section 404(c) with
(b) These regulations establish procedures for the following steps:
(1) The Regional Administrator's proposed determinations to prohibit or withdraw the specification of a defined area as a disposal site, or to deny, restrict or withdraw the use of any defined area for the discharge of any particular dredged or fill material;
(2) The Regional Administrator's recommendation to the Administrator for determination as to the specification of a defined area as a disposal site.
(3) The Administrator's final determination to affirm, modify or rescind the recommended determination after consultation with the Chief of Engineers or with the state.
(c) Applicability: The regulations set forth in this part are applicable whenever the Administrator is considering whether the specification of any defined area as a disposal site should be prohibited, denied, restricted, or withdrawn. These regulations apply to all existing, proposed or potential disposal sites for discharges of dredged or fill material into waters of the United States, as defined in 40 CFR 230.2.
For the purposes of this part, the definitions of terms in 40 CFR 230.2 shall apply. In addition, the term:
(a)
(b)
(c)
(d)
(e)
(f)
(a) If the Regional Administrator has reason to believe after evaluating the information available to him, including any record developed under the section 404 referral process specified in 33 CFR 323.5(b), that an “unacceptable adverse effect” could result from the specification or use for specification of a defined area for the disposal of dredged or fill material, he may initiate the following actions:
(1) The Regional Administrator will notify the District Engineer or the state, if the site is covered by an approved state program, the owner of record of the site, and the applicant, if any, in writing that the Regional Administrator intends to issue a public notice of a proposed determination to prohibit or withdraw the specification, or to deny, restrict or withdraw the use for specification, whichever the case may be, of any defined area as a -disposal site.
(2) If within 15 days of receipt of the Regional Administrator's notice under
(b) Public notice of every proposed determination and notice of all public hearings shall be given by the Regional Administrator. Every public notice shall contain, at a minimum:
(1) An announcement that the Regional Administrator has proposed a determination to prohibit or withdraw specification, or to deny, restrict, or withdraw the use for specification, of an area as a disposal site, including a summary of the facts on which the proposed determination is based;
(2) The location of the existing, proposed or potential disposal site, and a summary of its characteristics;
(3) A summary of information concerning the nature of the proposed discharge, where applicable;
(4) The identity of the permit applicant, if any;
(5) A brief description of the right to, and procedures for requesting, a public hearing; and
(6) The address and telephone number of the office where interested persons may obtain additional information, including copies of the proposed determination; and
(7) Such additional statements, representations, or information as the -Regional Administrator considers -necessary or proper.
(c) In addition to the information required under paragraph (b) of this section, public notice of a public hearing held under § 231.4 shall contain the -following information:
(1) Reference to the date of public notice of the proposed determination;
(2) Date, time and place of the hearing; and
(3) A brief description of the nature and purpose of the hearing including the applicable rules and procedures.
(d) The following procedures for giving public notice of the proposed determination or of a public hearing shall be followed:
(1) Publication at least once in a daily or weekly newspaper of general circulation in the area in which the defined area is located. In addition the Regional Administrator may (i) post a copy of the notice at the principal office of the municipality in which the defined area is located, or if the defined area is not located near a sizeable community, at the principal office of the political subdivision (State, county or local, whichever is appropriate) with general jurisdiction over the area in which the disposal site is located, and (ii) post a copy of the notice at the United States Post Office serving that area.
(2) A copy of the notice shall be mailed to the owner of record of the site, to the permit applicant or permit holder, if any, to the U.S. Fish and Wildlife Service, National Marine Fisheries Service and any other interested Federal and State water pollution control and resource agencies, and to any person who has filed a written request with the Regional Administrator to receive copies of notices relating to section 404(c) determinations;
(3) A copy of the notice shall be mailed to the appropriate District and Division Engineer(s) and state;
(4) The notice will also be published in the
(a) The Regional Administrator shall provide a comment period of not less than 30 or more than 60 days following the date of public notice of the proposed determination. During this period any interested persons may submit written comments on the proposed determination. Comments should be directed to whether the proposed determination should become the final determination and corrective action that could be taken to reduce the adverse impact of the discharge. All such comments shall be considered by the Regional Administrator or his designee in preparing his recommended determination in § 231.5.
(b) Where the Regional Administrator finds a significant degree of public interest in a proposed determination or that it would be otherwise in the public interest to hold a hearing, or if an affected landowner or permit applicant or holder requests a hearing, he or his designee shall hold a public hearing. Public notice of that hearing shall be given as specified in § 231.3(c). No hearing may be held prior to 21 days after the date of the public notice. The hearing may be scheduled either by the Regional Administrator at his own initiative, or in response to a request received during the comment period provided for in paragraph (a) of this section. If no public hearing is held the Regional Administrator shall notify any persons who requested a hearing of the reasons for that decision. Where practicable, hearings shall be conducted in the vicinity of the affected site.
(c) Hearings held under this section shall be conducted by the Regional Administrator, or his designee, in an orderly and expeditious manner. A record of the proceeding shall be made by -either tape recording or verbatim -transcript.
(d) Any person may appear at the hearing and submit oral or written statements and data and may be represented by counsel or other authorized representative. Any person may present written statements for the hearing file prior to the time the hearing file is closed to public submissions, and may present proposed findings and recommendations. The Regional Administrator or his designee shall afford the participants an opportunity for -rebuttal.
(e) The Regional Administrator, or his designee, shall have discretion to establish reasonable limits on the nature, amount or form of presentation of documentary material and oral presentations. No cross examination of any hearing participant shall be permitted, although the Regional Administrator, or his designee, may make appropriate inquiries of any such participant.
(f) The Regional Administrator or his designee shall allow a reasonable time not to exceed 15 days after the close of the public hearing for submission of written comments. After such time has expired, unless such period is extended by the Regional Administrator or his designee for good cause, the hearing file shall be closed to additional public written comments.
(g) No later than the time a public notice of proposed determination is issued, a Record Clerk shall be designated with responsibility for maintaining the administrative record identified in § 231.5(e). Copying of any documents in the record shall be permitted under appropriate arrangements to prevent their loss. The charge for such copies shall be in accordance with the written schedule contained in part 2 of this chapter.
(a) The Regional Administrator or his designee shall, within 30 days after the conclusion of the public hearing (but not before the end of the comment period), or, if no hearing is held, within 15 days after the expiration of the comment period on the public notice of the proposed determination, either withdraw the proposed determination or prepare a recommended determination to prohibit or withdraw specification, or to deny, restrict, or withdraw the use for specification, of the disposal site because the discharge of dredged -or fill material at such site would be -likely to have an unacceptable ad-verse -effect.
(b) Where a recommended determination is prepared, the Regional Administrator or his designee shall promptly forward the recommended determination and administrative record to the
(c) Where the Regional Administrator, or his designee, decides to withdraw the proposed determination, he shall promptly notify the Administrator by mail, with a copy to the Assistant Administrator for Water and Waste Management, who shall have 10 days from receipt of such notice to notify the Regional Administrator of his intent to review such withdrawal. Copies of the notification shall be sent to all persons who commented on the proposed determination or participated at the hearing. Such persons may submit timely written recommendations concerning review.
(1) If the Administrator does not notify him, the Regional Administrator shall give notice at the withdrawal of the proposed determination as provided in § 231.3(d). Such notice shall constitute final agency action.
(2) If the Administrator does decide to review, the Regional Administrator or his designee shall forward the administrative record to the Administrator for a final determination under § 231.6. Where there is review of a withdrawal of proposed determination or review of a recommended determination under § 231.6, final agency action does not occur until the Administrator makes a final determination.
(d) Any recommended determination under paragraph (b) of this section shall include the following:
(1) A summary of the unacceptable adverse effects that could occur from use of the disposal site for the proposed discharge;
(2) Recommendations regarding a final determination to prohibit, deny, restrict, or withdraw, which shall confirm or modify the proposed determination, with a statement of reasons.
(e) The administrative record shall consist of the following:
(1) A copy of the proposed deter-mination, public notice, written com-ments on the public notice and written -submissions in the hearing file;
(2) A transcript or recording of the public hearing, where a hearing was held;
(3) The recommended determination;
(4) Where possible a copy of the record of the Corps or the state -pertaining to the site in question;
(5) Any other information considered by the Regional Administrator or his designee.
After reviewing the recommendations of the Regional Administrator or his designee, the Administrator shall within 30 days of receipt of the -recommendations and administrative record initiate consultation with the Chief of Engineers, the owner of record, and, where applicable, the State and the applicant, if any. They shall have 15 days to notify the Administrator of their intent to take corrective action to prevent an unacceptable adverse effect(s), satisfactory to the Administrator. Within 60 days of receipt of the recommendations and record, the Administrator shall make a final determination affirming, modifying, or rescinding the recommended determination. The final determination shall describe the satisfactory corrective action, if any, make findings, and state the reasons for the final determination. Notice of such final determination shall be published as provided in § 231.3, and shall be given to all persons who participated in the public hearing. Notice of the Administrator's final determination shall also be published in the
Where a permit has already been issued, and the Administrator has reason to believe that a discharge under the permit presents an imminent danger of irreparable harm to municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas) wildlife, or recreational areas, and that the public health, interest, or safety requires, the Administrator may ask the Chief of Engineers to suspend the permit under 33 CFR 325.7, or the state, pending completion of proceedings under Part 231. The Administrator may also take appropriate action as authorized under section 504
The Administrator or the Regional Administrator may, upon a showing of good cause, extend the time requirements in these regulations. Notice of any such extension shall be published in the
33 U.S.C. 1344.
Part 232 contains definitions applicable to the section 404 program for discharges of dredged or fill material. These definitions apply to both the federally operated program and State administered programs after program approval. This part also describes those activities which are exempted from regulation. Regulations prescribing the substantive environmental criteria for issuance of section 404 permits appear at 40 CFR part 230. Regulations establishing procedures to be followed by the EPA in denying or restricting a disposal site appear at 40 CFR part 231. Regulations containing the procedures and policies used by the Corps in administering the 404 program appear at 33 CFR parts 320-330. Regulations specifying the procedures EPA will follow, and the criteria EPA will apply in approving, monitoring, and withdrawing approval of section 404 State programs appear at 40 CFR part 233.
(i) The addition of dredged material to a specified discharge site located in waters of the United States;
(ii) The runoff or overflow, associated with a dredging operation, from a contained land or water disposal area; and
(iii) Any addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation.
(2)(i) The Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback. This paragraph (i) does
(ii)
(3) The term
(i) Discharges of pollutants into waters of the United States resulting from the onshore subsequent processing of dredged material that is extracted for any commercial use (other than fill). These discharges are subject to section 402 of the Clean Water Act even though the extraction and deposit of such material may require a permit from the Corps or applicable state.
(ii) Activities that involve only the cutting or removing of vegetation above the ground (e.g., mowing, rotary cutting, and chainsawing) where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material.
(iii) Incidental fallback.
(4) Section 404 authorization is not required for the following:
(i) Any incidental addition, including redeposit, of dredged material associated with any activity that does not have or would not have the effect of destroying or degrading an area of waters of the U.S. as defined in paragraphs (5) and (6) of this definition; however, this exception does not apply to any person preparing to undertake mechanized landclearing, ditching, channelization and other excavation activity in a water of the United States, which would result in a redeposit of dredged material, unless the person demonstrates to the satisfaction of the Corps, or EPA as appropriate, prior to commencing the activity involving the discharge, that the activity would not have the effect of destroying or degrading any area of waters of the United States, as defined in paragraphs (5) and (6) of this definition. The person proposing to undertake mechanized landclearing, ditching, channelization or other excavation activity bears the burden of demonstrating that such activity would not destroy or degrade any area of waters of the United States.
(ii) Incidental movement of dredged material occurring during normal dredging operations, defined as dredging for navigation in
(iii) Certain discharges, such as those associated with normal farming, silviculture, and ranching activities, are not prohibited by or otherwise subject to regulation under Section 404. See 40 CFR 232.3 for discharges that do not require permits.
(5) For purposes of this section, an activity associated with a discharge of dredged material destroys an area of waters of the United States if it alters the area in such a way that it would no longer be a water of the United States.
Unauthorized discharges into waters of the United States do not eliminate Clean Water Act jurisdiction, even where such unauthorized discharges have the effect of destroying waters of the United States.
(6) For purposes of this section, an activity associated with a discharge of dredged material degrades an area of waters of the United States if it has more than a
(2) In addition, placement of pilings in waters of the United States constitutes a discharge of fill material and requires a Section 404 permit when such placement has or would have the effect of a discharge of fill material. Examples of such activities that have the effect of a discharge of fill material include, but are not limited to, the following: Projects where the pilings are so closely spaced that sedimentation rates would be increased; projects in which the pilings themselves effectively would replace the bottom of a waterbody; projects involving the placement of pilings that would reduce the reach or impair the flow or circulation of waters of the United States; and projects involving the placement of pilings which would result in the adverse alteration or elimination of aquatic functions.
(i) Placement of pilings in waters of the United States that does not have or would not have the effect of a discharge of fill material shall not require a Section 404 permit. Placement of pilings for linear projects, such as bridges, elevated walkways, and powerline structures, generally does not have the effect of a discharge of fill material. Furthermore, placement of pilings in waters of the United States for piers, wharves, and an individual house on stilts generally does not have the effect of a discharge of fill material. All pilings, however, placed in the
(ii) [Reserved]
(i) Replacing any portion of a water of the United States with dry land; or
(ii) Changing the bottom elevation of any portion of a water of the United States.
(2) Examples of such fill material include, but are not limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the waters of the United States.
(3) The term fill material does not include trash or garbage.
All waters which are currently used, were used in the past, or may be susceptible to us in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.
All interstate waters including interstate wetlands.
All other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which would or could affect interstate or foreign commerce including any such waters:
Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
Which are used or could be used for industrial purposes by industries in interstate commerce.
All impoundments of waters otherwise defined as waters of the United States under this definition;
Tributaries of waters identified in paragraphs (g)(1)-(4) of this section;
The territorial sea; and
Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (q)(1)-(6) of this section.
Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
Except as specified in paragraphs (a) and (b) of this section, any discharge of dredged or fill material that may result from any of the activities described in paragraph (c) of this section is not prohibited by or otherwise subject to regulation under this part.
(a) If any discharge of dredged or fill material resulting from the activities listed in paragraph (c) of this section contains any toxic pollutant listed under section 307 of the Act, such discharge shall be subject to any applicable toxic effluent standard or prohibition, 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 identified in paragraph (c) 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 may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernable alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration.
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 silvicultural to agricultural use when there is a discharge of dredged or fill material into waters of the United States in conjunction with constuction of dikes, drainage ditches or other works or structures used to effect such conversion. A conversion of section 404 wetland to a non-wetland is a change in use of an area of waters of the U.S. A discharge which 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.
(c) The following activities are exempt from section 404 permit requirements, except as specified in paragraphs (a) and (b) of this section:
(1)(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 (d) of this section.
(ii)(A) To fall under this exemption, the activities specified in paragraph (c)(1) of this section must be part of an established (i.e., ongong) farming, silviculture, or ranching operation, and must be in accordance with definitions in paragraph (d) of this section. Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation.
(B) Activities which bring an area into farming, silviculture 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 converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operation. If an activity takes place outside the waters of the United States, or if it does not involve a discharge, it does not need a section 404 permit whether or not it was part of an es-tab-lished farming, silviculture or ranching -operation.
(2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, cause-ways, 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. Discharge associated with siphons, pumps, headgates, wingwalls, wiers, 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 United States. The term “construction site” refers to any site involving the
(5) Any activity with respect to which a State has an approved program under section 208(b)(4) of the Act which meets the requirements of section 208(b)(4)(B) and (C).
(6) Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained in accordance with best management practices (BMPs) to assure that flow and circulation patterns and chemical and biological characteristics of waters of the United States are not impaired, that the reach of the waters of the United States is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized. The BMPs which must be applied to satisfy this provision include the following baseline provisions:
(i) Permanent roads (for farming or forestry activities), temporary access roads (for mining, forestry, or farm purposes) and skid trails (for logging) in waters of the United States shall be held to the minimum feasible number, width, and total length consistent -with the purpose of specific farming, -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 such roads which must cross water bodies) to minimize discharges of dredged or fill material into waters of the United States;
(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 to prevent erosion during and following construction;
(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 the waters of the United States (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself;
(vi) In designing, constructing, and maintaining roads, vegetative disturbance in the waters of the United States 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 exist;
(xi) The discharge shall not be located in the proximity of a public water supply intake;
(xii) The discharge shall not occur -in areas of concentrated shellfish -production;
(xiii) The discharge shall not occur in a component of the National Wild and Scenic River System;
(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.
(d) For purpose of paragraph (c)(1) of this section, cultivating, harvesting, minor drainage, plowing, and seeding are defined as follows:
(1) 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.
(2) 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,
(3)(i) Minor drainage means:
(A) The discharge of dredged or fill material incidental to connecting upland drainage facilities to waters of the United States, adequate to effect the removal of excess soil moisture from upland croplands. Construction and maintenance of upland (dryland) facilities, such as ditching and tiling, incidental to the planting, cultivating, protecting, or harvesting of crops, involve no discharge of dredged or fill material into waters of the United States, and as such never require a section 404 permit;
(B) The discharge of dredged or fill material for the purpose of installing ditching or other water control facilities incidental to planting, cultivating, protecting, or harvesting of rice, cranberries or other wetland crop species, where these activities and the discharge occur in waters of the United States which are in established use for such agricultural and silvicultural wetland crop production;
(C) The discharge of dredged or fill material for the purpose of manipulating the water levels of, or regulating the flow or distribution of water within, existing impoundments which have been constructed in accordance with applicable requirements of the Act, and which are in established use for the production or rice, cranberries, or other wetland crop species.
The provisions of paragraphs (d)(3)(i) (B) and (C) of this section apply to areas that are in established use exclusively for wetland crop production as well as areas in established use for conventional 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.
(D) The discharge of dredged or fill material incidental to the emergency removal of sandbars, gravel bars, or other similar blockages which are formed during flood flows or other events, where such blockages close or constrict previously existing drain-age-ways 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 after such blockages are discovered in order to be eligible for exemption.
(ii) Minor drainage in waters of the United States is limited to drainage within areas that are part of an established farming or silviculture 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 adequate to life in saturated soil conditions), or conversion from one wetland use to another (for example, silviculture to farming).
(4) Plowing means all forms of primary tillage, including moldboard, chisel, or wide-blade plowing, discing, harrowing, and similar physical means used on farm, forest or ranch land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. Plowing does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dryland. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing. Rock crushing activities which result in the loss of natural drainage characteristics, the reduction of water storage and recharge capabilities, or the overburden of natural water filtration capacities do not constitute plowing. Plowing, as described above, will never involve a discharge of dredged or fill material.
(5) Seeding means the sowing of seed and placement of seedlings to produce farm, ranch, or forest crops and includes the placement of soil beds for seeds or seedlings on established farm and forest lands.
(e) Federal projects which qualify under the criteria contained in section 404(r) of the Act are exempt from section 404 permit requirements, but may be subject to other State or Federal requirements.
33 U.S.C. 1251
(a) This part specifies the procedures EPA will follow, and the criteria EPA will apply, in approving, reviewing, and withdrawing approval of State programs under section 404 of the Act.
(b) Except as provided in § 232.3, a State program must regulate all discharges of dredged or fill material into waters regulated by the State under section 404(g)-(1). Partial State programs are not approvable under section 404. A State's decision not to assume existing Corps' general permits does not constitute a partial program. The discharges previously authorized by general permit will be regulated by State individual permits. However, in many cases, States other than Indian Tribes will lack authority to regulate activities on Indian lands. This lack of authority does not impair that State's ability to obtain full program approval in accordance with this part, i.e., inability of a State which is not an Indian Tribe to regulate activities on Indian lands does not constitute a partial program. The Secretary of the Army acting through the Corps of Engineers will continue to administer the program on Indian lands if a State which is not an Indian Tribe does not seek and have authority to regulate activities on Indian lands.
(c) Nothing in this part precludes a State from adopting or enforcing requirements which are more stringent or from operating a program with greater scope, than required under this part. Where an approved State program has a greater scope than required by Federal law, the additional coverage is not part of the Federally approved program and is not subject to Federal oversight or enforcement.
State assumption of the section 404 program is limited to certain waters, as provided in section 404(g)(1). The Federal program operated by the Corps of Engineers continues to apply to the remaining waters in the State even after program approval. However, this does not restrict States from regulating discharges of dredged or fill material into those waters over which the Secretary retains section 404 jurisdiction.
(d) Any approved State Program shall, at all times, be conducted in accordance with the requirements of the Act and of this part. While States may impose more stringent requirements, they may not impose any less stringent requirements for any purpose.
The definitions in parts 230 and 232 as well as the following definitions apply to this part.
(a) Any information submitted to EPA pursuant to these regulations may be claimed as confidential by the submitter at the time of submittal and a final determination as to that claim will be made in accordance with the procedures of 40 CFR part 2 and paragraph (c) of this section.
(b) Any information submitted to the Director may be claimed as confidential in accordance with State law, subject to paragraphs (a) and (c) of this section.
(c) Claims of confidentiality for the following information will be denied:
(1) The name and address of any permit applicant or permittee,
(2) Effluent data,
(3) Permit application, and
(4) Issued permit.
Any public officer or employee who has a direct personal or pecuniary interest in any matter that is subject to decision by the agency shall make known such interest in the official records of the agency and shall refrain from participating in any manner in such decision.
Any State that seeks to administer a 404 program under this part shall submit to the Regional Administrator at least three copies of the following:
(a) A letter from the Governor of the State requesting program approval.
(b) A complete program description, as set forth in § 233.11.
(c) An Attorney General's statement, as set forth in § 233.12.
(d) A Memorandum of Agreement with the Regional Administrator, as set forth in § 233.13.
(e) A Memorandum of Agreement with the Secretary, as set forth in § 233.14.
(f) Copies of all applicable State statutes and regulations, including those governing applicable State administrative procedures.
The program description as required under § 233.10 shall include:
(a) A description of the scope and structure of the State's program. The description should include extent of State's jurisdiction, scope of activities regulated, anticipated coordination, scope of permit exemptions if any, and permit review criteria;
(b) A description of the State's permitting, administrative, judicial review, and other applicable procedures;
(c) A description of the basic organization and structure of the State agency (agencies) which will have responsibility for administering the program. If more than one State agency is responsible for the administration of the program, the description shall address the responsibilities of each agency and how the agencies intend to coordinate administration and evaluation of the program;
(d) A description of the funding and manpower which will be available for program administration;
(e) An estimate of the anticipated workload, e.g., number of discharges.
(f) Copies of permit application forms, permit forms, and reporting forms;
(g) A description of the State's compliance evaluation and enforcement programs, including a description of how the State will coordinate its enforcement strategy with that of the Corps and EPA;
(h) A description of the waters of the United States within a State over which the State assumes jurisdiction under the approved program; a description of the waters of the United States within a State over which the Secretary retains jurisdiction subsequent to program approval; and a comparison of the State and Federal definitions of wetlands.
States should obtain from the Secretary an identification of those waters of the U.S. within the State over which the Corps retains authority under section 404(g) of the Act.
(i) A description of the specific best management practices proposed to be used to satisfy the exemption provisions of section 404(f)(1)(E) of the Act for construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment.
(a) Any State that seeks to administer a program under this part shall submit a statement from the State Attorney General (or the attorney for those State or interstate agencies which have independence legal counsel), that the laws and regulations of the State, or an interstate compact, provide adequate authority to carry out the program and meet the applicable requirements of this part. This statement shall cite specific statutes and administrative regulations which are lawfully adopted at the time the statement is signed and which shall be fully effective by the time the program is approved, and, where appropriate, judicial decisions which demonstrate adequate authority. The attorney signing the statement required by this section must have authority to represent
(b) If a State seeks approval of a program covering activities on Indian lands, the statement shall contain an analysis of the State's authority over such activities.
(c) The State Attorney General's statement shall contain a legal analysis of the effect of State law regarding the prohibition on taking private property without just compensation on the successful implementation of the State's program.
(d) In those States where more than one agency has responsibility for administering the State program, the statement must include certification that each agency has full authority to administer the program within its category of jurisdiction and that the State, as a whole, has full authority to administer a complete State section 404 program.
(a) Any State that seeks to administer a program under this part shall submit a Memorandum of Agreement executed by the Director and the Regional Administrator. The Memorandum of Agreement shall become effective upon approval of the State program. When more than one agency within a State has responsibility for administering the State program, Directors of each of the responsible State agencies shall be parties to the Memorandum of Agreement.
(b) The Memorandum of Agreement shall set out the State and Federal responsibilities for program administration and enforcement. These shall include, but not be limited to:
(1) Provisions specifying classes and categories of permit applications for which EPA will waive Federal review (as specified in § 233.51).
(2) Provisions specifying the frequency and content of reports, documents and other information which the State may be required to submit to EPA in addition to the annual report, as well as a provision establishing the submission date for the annual report. The State shall also allow EPA routinely to review State records, reports and files relevant to the administration and enforcement of the approved program.
(3) Provisions addressing EPA and State roles and coordination with respect to compliance monitoring and enforcement activities.
(4) Provisions addressing modification of the Memorandum of Agreement.
(a) Before a State program is approved under this part, the Director shall enter into a Memorandum of Agreement with the Secretary. When more than one agency within a State has responsibility for administering the State program, Directors of each of the responsible agencies shall be parties of the Memorandum of Agreement.
(b) The Memorandum of Agreement shall include:
(1) A description of waters of the United States within the State over which the Secretary retains jurisdiction, as identified by the Secretary.
(2) Procedures whereby the Secretary will, upon program approval, transfer to the State pending 404 permit applications for discharges in State regulated waters and other relevant information not already in the possession of the Director.
Where a State permit program includes coverage of those traditionally navigable waters in which only the Secretary may issue section 404 permits, the State is encouraged to establish in this MOA procedures for joint processing of Federal and State permits, including joint public notices and public hearings.
(3) An identification of all general permits issued by the Secretary the terms and conditions of which the State intends to administer and enforce upon receiving approval of its program, and a plan for transferring responsibility for these general permits to the State, including procedures for the prompt transmission from the Secretary to the Director of relevant information not already in the possession of the Director, including support files for permit issuance, compliance reports and records of enforcement actions.
(a) The 120 day statutory review period shall commence on the date of receipt of a complete State program submission as set out in § 233.10 of this part. EPA shall determine whether the submission is complete within 30 days of receipt of the submission and shall notify the State of its determination. If EPA finds that a State's submission is incomplete, the statutory review period shall not begin until all the necessary information is received by EPA.
(b) If EPA determines the State significantly changes its submission during the review period, the statutory review period shall begin again upon the receipt of a revised submission.
(c) The State and EPA may extend the statutory review period by agreement.
(d) Within 10 days of receipt of a complete State section 404 program submission, the Regional Administrator shall provide copies of the State's submission to the Corps, FWS, and NMFS (both Headquarters and appropriate Regional organizations.)
(e) After determining that a State program submission is complete, the Regional Administrator shall publish notice of the State's application in the
(1) Provide for a comment period of not less than 45 days during which interested members of the public may express their views on the State program.
(2) Provide for a public hearing within the State to be held not less than 30 days after notice of hearing is published in the
(3) Indicate where and when the State's submission may be reviewed by the public;
(4) Indicate whom an interested member of the public with questions should contact; and
(5) Briefly outline the fundamental aspects of the State's proposed program and the process for EPA review and decision.
(f) Within 90 days of EPA's receipt of a complete program submission, the Corps, FWS, and NMFS shall submit to EPA any comments on the State's program.
(g) Within 120 days of receipt of a complete program submission (unless an extension is agreed to by the State), the Regional Administrator shall approve or disapprove the program based on whether the State's program fulfills the requirements of this part and the Act, taking into consideration all comments received. The Regional Administrator shall prepare a responsiveness summary of significant comments received and his response to these comments. The Regional Administrator shall respond individually to comments received from the Corps, FWS, and NMFS.
(h) If the Regional Administrator approves the State's section 404 program, he shall notify the State and the Secretary of the decision and publish notice in the
(i) If the Regional Administrator disapproves the State's program based on the State not meeting the requirements of the Act and this part, the Regional Administrator shall notify the State of the reasons for the disapproval and of any revisions or modifications to the State's program which are necessary to obtain approval. If the State resubmits a program submission remedying the identified problem areas, the approval procedure and statutory review period shall begin upon receipt of the revised submission.
(a) The State shall keep the Regional Administrator fully informed of any
(b) Any approved program which requires revision because of a modification to this part or to any other applicable Federal statute or regulation shall be revised within one year of the date of promulgation of such regulation, except that if a State must amend or enact a statute in order to make the required revision, the revision shall take place within two years.
(c) States with approved programs shall notify the Regional Administrator whenever they propose to transfer all or part of any program from the approved State agency to any other State agency. The new agency is not authorized to administer the program until approved by the Regional Administrator under paragraph (d) of this section.
(d) Approval of revision of a State program shall be accomplished as follows:
(1) The Director shall submit a modified program description or other documents which the Regional Administrator determines to be necessary to evaluate whether the program complies with the requirements of the Act and this part.
(2) Notice of approval of program changes which are not substantial revisions may be given by letter from the Regional Administrator to the Governor or his designee.
(3) Whenever the Regional Administrator determines that the proposed revision is substantial, he shall publish and circulate notice to those persons known to be interested in such matters, provide opportunity for a public hearing, and consult with the Corps, FWS, and NMFS. The Regional Administrator shall approve or disapprove program revisions based on whether the program fulfills the requirements of the Act and this part, and shall publish notice of his decision in the
(4) Substantial program changes shall become effective upon approval by the Regional Administrator and publication of notice in the
(e) Whenever the Regional Administrator has reason to believe that circumstances have changed with respect to a State's program, he may request and the State shall provide a supplemental Attorney General's statement, program description, or such other documents or information as are necessary to evaluate the program's compliance with the requirements of the Act and this part.
No permit shall be issued by the Director in the following circumstances:
(a) When permit does not comply with the requirements of the Act or regulations thereunder, including the section 404(b)(1) Guidelines (part 230 of this chapter).
(b) When the Regional Administrator has objected to issuance of the permit under § 233.50 and the objection has not been resolved.
(c) When the proposed discharges would be in an area which has been prohibited, withdrawn, or denied as a disposal site by the Administrator under section 404(c) of the Act, or when the discharge would fail to comply with a restriction imposed thereunder.
(d) If the Secretary determines, after consultation with the Secretary of the Department in which the Coast Guard is operating, that anchorage and navigation of any of the navigable waters would be substantially impaired.
(a) Under section 404(h)(5) of the Act, States may, after program approval, administer and enforce general permits previously issued by the Secretary in State regulated waters.
If States intend to assume existing general permits, they must be able to ensure compliance with existing permit conditions an any reporting monitoring, or prenotification requirements.
(b) The Director may issue a general permit for categories of similar activities if he determines that the regulated activities will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment. Any general permit issued shall be in compliance with the section 404(b)(1) Guidelines.
(c) In addition to the conditions specified in § 233.23, each general permit shall contain:
(1) A specific description of the type(s) of activities which are authorized, including limitations for any single operation. The description shall be detailed enough to ensure that the requirements of paragraph (b) of this -section are met. (This paragraph super-cedes § 233.23(c)(1) for general permits.)
(2) A precise description of the geographic area to which the general permit applies, including limitations on the type(s) of water where operations may be conducted sufficient to ensure that the requirements of paragraph (b) of this section are met.
(d) Predischarge notification or other reporting requirements may be required by the Director on a permit-by-permit basis as appropriate to ensure that the general permit will comply with the requirement (section 404(e) of the Act) that the regulated activities will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment.
(e) The Director may, without revoking the general permit, require any person authorized under a general permit to apply for an individual permit. This discretionary authority will be based on concerns for the aquatic environment including compliance with paragraph (b) of this section and the 404(b)(1) Guidelines (40 CFR part 230.)
(1) This provision in no way affects the legality of activities undertaken pursuant to the general permit prior to notification by the Director of such requirement.
(2) Once the Director notifies the discharger of his decision to exercise discretionary authority to require an individual permit, the discharger's activity is no longer authorized by the general permit.
(a) Notwithstanding any other provision of this part, the Director may issue a temporary emergency permit for a discharge of dredged or fill material if unacceptable harm to life or severe loss of physical property is likely to occur before a permit could be issued or modified under procedures normally required.
(b) Emergency permits shall incorporate, to the extent possible and not inconsistent with the emergency situation, all applicable requirements of § 233.23.
(1) Any emergency permit shall be limited to the duration of time (typically no more than 90 days) required to complete the authorized emergency action.
(2) The emergency permit shall have a condition requiring appropriate restoration of the site.
(c) The emergency permit may be terminated at any time without process (§ 233.36) if the Director determines that termination is necessary to protect human health or the environment.
(d) The Director shall consult in an expeditious manner, such as by telephone, with the Regional Administrator, the Corps, FWS, and NMFS about issuance of an emergency permit.
(e) The emergency permit may be oral or written. If oral, it must be followed within 5 days by a written emergency permit. A copy of the written permit shall be sent to the Regional Administrator.
(f) Notice of the emergency permit shall be published and public comments solicited in accordance with § 233.32 as soon as possible but no later than 10 days after the issuance date.
(a) For each permit the Director shall establish conditions which assure compliance with all applicable statutory and regulatory requirements, including the 404(b)(1) Guidelines, applicable section 303 water quality standards, and applicable section 307 effluent standards and prohibitions.
(b) Section 404 permits shall be effective for a fixed term not to exceed 5 years.
(c) Each 404 permit shall include conditions meeting or implementing the following requirements:
(1) A specific identification and complete description of the authorized activity including name and address of permittee, location and purpose of discharge, type and quantity of material to be discharged. (This subsection is not applicable to general permits).
(2) Only the activities specifically described in the permit are authorized.
(3) The permittee shall comply with all conditions of the permit even if that requires halting or reducing the permitted activity to maintain compliance. Any permit violation constitutes a violation of the Act as well as of State statute and/or regulation.
(4) The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit.
(5) The permittee shall inform the Director of any expected or known actual noncompliance.
(6) The permittee shall provide such information to the Director, as the Director requests, to determine compliance status, or whether cause exists -for permit modification, revocation or -termination.
(7) Monitoring, reporting and recordkeeping requirements as needed to safeguard the aquatic environment. (Such requirements will be determined on a case-by-case basis, but at a minimum shall include monitoring and reporting of any expected leachates, reporting of noncompliance, planned changes or transfer of the permit.)
(8) Inspection and entry. The permittee shall allow the Director, or his authorized representative, upon presentation of proper identification, at reasonable times to:
(i) Enter upon the permittee's premises where a regulated activity is located or where records must be kept under the conditions of the permit,
(ii) Have access to and copy any records that must be kept under the conditions of the permit,
(iii) Inspect operations regulated or required under the permit, and
(iv) Sample or monitor, for the purposes of assuring permit compliance or as otherwise authorized by the Act, any substances or parameters at any location.
(9) Conditions assuring that the discharge will be conducted in a manner which minimizes adverse impacts upon the physical, chemical and biological integrity of the waters of the United States, such as requirements for restoration or mitigation.
(a) Except when an activity is authorized by a general permit issued pursuant to § 233.21 or is exempt from the requirements to obtain a permit under § 232.3, any person who proposes to discharge dredged or fill material into State regulated waters shall complete, sign and submit a permit application to the Director. Persons proposing to discharge dredged or fill material under the authorization of a general permit must comply with any reporting requirements of the general permit.
(b) A complete application shall include:
(1) Name, address, telephone number of the applicant and name(s) and address(es) of adjoining property owners.
(2) A complete description of the proposed activity including necessary drawings, sketches or plans sufficient for public notice (the applicant is not generally expected to submit detailed engineering plans and specifications); the location, purpose and intended use of the proposed activity; scheduling of the activity; the location and dimensions of adjacent structures; and a list of authorizations required by other Federal, interstate, State or local agencies for the work, including all approvals received or denials already made.
(3) The application must include a description of the type, composition, source and quantity of the material to be discharged, the method of discharge, and the site and plans for disposal of the dredged or fill material.
(4) A certification that all information contained in the application is true and accurate and acknowledging
(5) All activities which the applicant plans to undertake which are reasonably related to the same project should be included in the same permit application.
(c) In addition to the information indicated in § 233.30(b), the applicant will be required to furnish such additional information as the Director deems appropriate to assist in the evaluation of the application. Such additional information may include environmental data and information on alternate methods and sites as may be necessary for the preparation of the required environmental documentation.
(d) The level of detail shall be reasonably commensurate with the type and size of discharge, proximity to critical areas, likelihood of long-lived toxic chemical substances, and potential level of environmental degradation.
EPA encourages States to provide permit applicants guidance regarding the level of detail of information and documentation required under this subsection. This guidance can be provided either through the application form or on an individual basis. EPA also encourages the State to maintain a program to inform potential applicants for permits of the requirements of the State program and of the steps required to obtain permits for activities in State regulated waters.
(a) If a proposed discharge may affect the biological, chemical, or physical integrity of the waters of any State(s) other than the State in which the discharge occurs, the Director shall provide an opportunity for such State(s) to submit written comments within the public comment period and to suggest permit conditions. If these recommendations are not accepted by the Director, he shall notify the affected State and the Regional Administrator prior to permit issuance in writing of his failure to accept these recommendations, together with his reasons for so doing. The Regional Administrator shall then have the time provided for in § 233.50(d) to comment upon, object to, or make recommendations.
(b) State section 404 permits shall be coordinated with Federal and Federal-State water related planning and review processes.
(a) Applicability.
(1) The Director shall give public notice of the following actions:
(i) Receipt of a permit application.
(ii) Preparation of a draft general permit.
(iii) Consideration of a major modification to an issued permit.
(iv) Scheduling of a public hearing.
(v) Issuance of an emergency permit.
(2) Public notices may describe more than one permit or action.
(b) Timing.
(1) The public notice shall provide a reasonable period of time, normally at least 30 days, within which interested parties may express their views concerning the permit application.
(2) Public notice of a public hearing shall be given at least 30 days before the hearing.
(3) The Regional Administrator may approve a program with shorter public notice timing if the Regional Administrator determines that sufficient public notice is provided for.
(c) The Director shall give public notice by each of the following methods:
(1) By mailing a copy of the notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive his rights to receive notice for any classes or categories of permits):
(i) The applicant.
(ii) Any agency with jurisdiction over the activity or the disposal site, whether or not the agency issues a permit.
(iii) Owners of property adjoining the property where the regulated activity will occur.
(iv) All persons who have specifically requested copies of public notices. (The Director may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Director may delete from the list the name of any person who fails to respond to such a request.)
(v) Any State whose waters may be affected by the proposed discharge.
(2) In addition, by providing notice in at least one other way (such as advertisement in a newspaper of sufficient
(d) All public notices shall contain at least the following information:
(1) The name and address of the applicant and, if different, the address or location of the activity(ies) regulated by the permit.
(2) The name, address, and telephone number of a person to contact for further information.
(3) A brief description of the comment procedures and procedures to request a public hearing, including deadlines.
(4) A brief description of the proposed activity, its purpose and intended use, so as to provide sufficient information concerning the nature of the activity to generate meaningful comments, including a description of the type of structures, if any, to be erected on fills, and a description of the type, composition and quantity of materials to be discharged.
(5) A plan and elevation drawing showing the general and specific site location and character of all proposed activities, including the size relationship of the proposed structures to the size of the impacted waterway and depth of water in the area.
(6) A paragraph describing the various evaluation factors, including the 404(b)(1) Guidelines or State-equivalent criteria, on which decisions are based.
(7) Any other information which would significantly assist interested parties in evaluating the likely impact of the proposed activity.
(e) Notice of public hearing shall also contain the following information:
(1) Time, date, and place of hearing.
(2) Reference to the date of any previous public notices relating to the permit.
(3) Brief description of the nature and purpose of the hearing.
(a) Any interested person may request a public hearing during the public comment period as specified in § 233.32. Requests shall be in writing and shall state the nature of the issues proposed to be raised at the hearing.
(b) The Director shall hold a public hearing whenever he determines there is a significant degree of public interest in a permit application or a draft general permit. He may also hold a hearing, at his discretion, whenever he determines a hearing may be useful to a decision on the permit application.
(c) At a hearing, any person may submit oral or written statements or data concerning the permit application or draft general permit. The public comment period shall automatically be extended to the close of any public hearing under this section. The presiding officer may also extend the comment period at the hearing.
(d) All public hearings shall be reported verbatim. Copies of the record of proceedings may be purchased by any person from the Director or the reporter of such hearing. A copy of the transcript (or if none is prepared, a tape of the proceedings) shall be made available for public inspection at an appropriate State office.
(a) The Director will review all ap-plications for compliance with the 404(b)(1) Guidelines and/or equivalent State environmental criteria as well as any other applicable State laws or regulations.
(b) The Director shall consider all comments received in response to the public notice, and public hearing if a hearing is held. All comments, as well as the record of any public hearing, shall be made part of the official record on the application.
(c) After the Director has completed his review of the application and consideration of comments, the Director will determine, in accordance with the record and all applicable regulations, whether or not the permit should be issued. No permit shall be issued by the Director under the circumstances described in § 233.20. The Director shall prepare a written determination on each application outlining his decision and rationale for his decision. The determination shall be dated, signed and included in the official record prior to final action on the application. The official record shall be open to the -public.
(a) If the Regional Administrator comments on a permit application or draft general permit under § 233.50, the Director shall follow the procedures specified in that section in issuing the permit.
(b) If the Regional Administrator does not comment on a permit application or draft general permit, the Director shall make a final permit decision after the close of the public comment period and shall notify the applicant.
(1) If the decision is to issue a permit, the permit becomes effective when it is signed by the Director and the applicant.
(2) If the decision is to deny the -permit, the Director will notify the -applicant in writing of the reason(s) for -denial.
(a)
(1) Permittee's noncompliance with any of the terms or conditions of the permit;
(2) Permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts or the permittee's misrepresentation of any relevant facts at the time;
(3) Information that activities authorized by a general permit are having more than minimal individual or cumulative adverse effect on the environment, or that the permitted activities are more appropriately regulated by individual permits;
(4) Circumstances relating to the authorized activity have changed since the permit was issued and justify changed permit conditions or temporary or permanent cessation of any discharge controlled by the permit;
(5) Any significant information relating to the activity authorized by the permit if such information was not available at the time the permit was issued and would have justified the imposition of different permit conditions or denial at the time of issuance;
(6) Revisions to applicable statutory or regulatory authority, including toxic effluent standards or prohibitions or water quality standards.
(b)
(c)
(2) Minor modification of permits. The Director may, upon the consent of the permittee, use abbreviated procedures to modify a permit to make the following corrections or allowance for changes in the permitted activity:
(i) Correct typographical errors;
(ii) Require more frequent monitoring or reporting by permittee;
(iii) Allow for a change in ownership or operational control of a project or activity where the Director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the Director;
(iv) Provide for minor modification of project plans that do not significantly change the character, scope, and/or purpose of the project or result in significant change in environmental impact;
(v) Extend the term of a permit, so long as the modification does not extend the term of the permit beyond 5 years from its original effective date and does not result in any increase in the amount of dredged or fill material allowed to be discharged.
The application and any required reports must be signed by the person who
A Corps 404 permit does not continue in force beyond its expiration date under Federal law if, at that time, a State is the permitting authority. States authorized to administer the 404 Program may continue Corps or State-issued permits until the effective date of the new permits, if State law allows. Otherwise, the discharge is being conducted without a permit from the time of expiration of the old permit to the effective date of a new State-issued permit, if any.
States that choose to receive electronic documents must satisfy the requirements of 40 CFR Part 3—(Electronic reporting) in their state program.
(a) In order to abate violations of the permit program, the State shall maintain a program designed to identify persons subject to regulation who have failed to obtain a permit or to comply with permit conditions.
(b) The Director and State officers engaged in compliance evaluation, upon presentation of proper identification, shall have authority to enter any site or premises subject to regulation or in which records relevant to program operation are kept in order to copy any records, inspect, monitor or otherwise investigate compliance with the State program.
(c) The State program shall provide for inspections to be conducted, samples to be taken and other information to be gathered in a manner that will produce evidence admissible in an enforcement proceeding.
(d) The State shall maintain a program for receiving and ensuring proper consideration of information submitted by the public about violations.
(a) Any State agency administering a program shall have authority:
(1) To restrain immediately and effectively any person from engaging in any unauthorized activity;
(2) To sue to enjoin any threatened or continuing violation of any program requirement;
(3) To assess or sue to recover civil penalties and to seek criminal remedies, as follows:
(i) The agency shall have the authority to assess or recover civil penalties for discharges of dredged or fill material without a required permit or in violation of any section 404 permit condition in an amount of at least $5,000 per day of such violation.
(ii) The agency shall have the authority to seek criminal fines against any person who willfully or with criminal negligence discharges dredged or fill material without a required permit or violates any permit condition issued under section 404 in the amount of at least $10,000 per day of such violation.
(iii) The agency shall have the authority to seek criminal fines against any person who knowingly makes false statements, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under the Act, these regulations or the approved State program, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under the permit, in an amount of at least $5,000 for each instance of violation.
(b)(1) The approved maximum civil penalty or criminal fine shall be assessable for each violation and, if the
(2) The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must bear when it brings an action under the Act.
(c) The civil penalty assessed, sought, or agreed upon by the Director under paragraph (a)(3) of this section shall be appropriate to the violation.
To the extent that State judgments or settlements provide penalties in amounts which EPA believes to be substantially inadequate in comparison to the amounts which EPA would require under similar facts, EPA may, when authorized by section 309 of the Act, commence separate action for penalties.
(d)(1) The Regional Administrator may approve a State program where the State lacks authority to recover penalties of the levels required under paragraphs (a)(3)(i)-(iii) of this section only if the Regional Administrator determines, after evaluating a record of at least one year for an alternative enforcement program, that the State has an alternate, demonstrably effective method of ensuring compliance which has both punitive and deterrence effects.
(2) States whose programs were approved via waiver of monetary penalties shall keep the Regional Administrator informed of all enforcement actions taken under any alternative method approved pursuant to paragraph (d)(1) of this section. The manner of reporting will be established in the Memorandum of Agreement with the Regional Administrator (§ 233.13).
(e) Any State administering a program shall provide for public participation in the State enforcement process by providing either:
(1) Authority which allows intervention of right in any civil or administrative action to obtain remedies specified in paragraph (a)(3) of this section by any citizen having an interest which is or may be adversely affected, or
(2) Assurance that the State agency or enforcement authority will:
(i) Investigate and provide written responses to all citizen complaints submitted pursuant to State procedures;
(ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and
(iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action.
(f)
(a) The Director shall promptly transmit to the Regional Administrator:
(1) A copy of the public notice for any complete permit applications received by the Director, except those for which permit review has been waived under § 233.51. The State shall supply the Regional Administrator with copies of public notices for permit applications for which permit review has been waived whenever requested by EPA.
(2) A copy of a draft general permit whenever the State intends to issue a general permit.
(3) Notice of every significant action taken by the State agency related to the consideration of any permit application except those for which Federal review has been waived or draft general permit.
(4) A copy of every issued permit.
(5) A copy of the Director's re-sponse to another State's comments/-recommendations, if the Director does -not accept these recommendations (§ 233.32(a)).
(b) Unless review has been waived under § 233.51, the Regional Administrator shall provide a copy of each public notice, each draft general permit, and other information needed for review of the application to the Corps, FWS, and NMFS, within 10 days of receipt. These agencies shall notify the Regional Administrator within 15 days of their receipt if they wish to comment on the public notice or draft general permit. Such agencies should submit their evaluation and comments to the Regional Administrator within 50 days of such receipt. The final decision to comment, object or to require permit conditions shall be made by the Regional Administrator. (These times may be shortened by mutual agreement of the affected Federal agencies and the State.)
(c) If the information provided is inadequate to determine whether the permit application or draft general permit meets the requirements of the Act, these regulations, and the 404(b)(1) Guidelines, the Regional Administrator may, within 30 days of receipt, request the Director to transmit to the Regional Administrator the complete record of the permit proceedings before the State, or any portions of the record, or other information, including a supplemental application, that the Regional Administrator determines necessary for review.
(d) If the Regional Administrator intends to comment upon, object to, or make recommendations with respect to a permit application, draft general permit, or the Director's failure to accept the recommendations of an affected State submitted pursuant to § 233.31(a), he shall notify the Director of his intent within 30 days of receipt. If the Director has been so notified, the permit shall not be issued until after the receipt of such comments or 90 days of the Regional Administrator's receipt of the public notice, draft general permit or Director's response (§ 233.31(a)), whichever comes first. The Regional Administrator may notify the Director within 30 days of receipt that there is no comment but that he reserves the right to object within 90 days of receipt, based on any new information brought out by the public during the comment period or at a hearing.
(e) If the Regional Administrator has given notice to the Director under paragraph (d) of this section, he shall submit to the Director, within 90 days of receipt of the public notice, draft general permit, or Director's response (§ 233.31(a)), a written statement of his comments, objections, or recommendations; the reasons for the comments, objections, or recommendations; and the actions that must be taken by the Director in order to eliminate any objections. Any such objection shall be based on the Regional Administrator's determination that the proposed permit is (1) the subject of an interstate dispute under § 233.31(a) and/or (2) outside requirements of the Act, these regulations, or the 404(b)(1) Guidelines. The Regional Administrator shall make available upon request a copy of any comment, objection, or recom-mendation on a permit application or draft general permit to the permit applicant or to the public.
(f) When the Director has received an EPA objection or requirement for a permit condition to a permit application or draft general permit under this section, he shall not issue the permit unless he has taken the steps required by the Regional Administrator to eliminate the objection.
(g) Within 90 days of receipt by the Director of an objection or requirement for a permit condition by the Regional Administrator, the State or any interested person may request that the Regional Administrator hold a public hearing on the objection or requirement. The Regional Administrator shall conduct a public hearing whenever requested by the State proposing to issue the permit, or if warranted by significant public interest based on requests received.
(h) If a public hearing is held under paragraph (g) of this section, the Regional Administrator shall, following that hearing, reaffirm, modify or withdraw the objection or requirement for a permit condition, and notify the Director of this decision.
(1) If the Regional Administrator withdraws his objection or requirement for a permit condition, the Director may issue the permit.
(2) If the Regional Administrator does not withdraw the objection or requirement for a permit condition, the Director must issue a permit revised to satisfy the Regional Administrator's objection or requirement for a permit condition or notify EPA of its intent to deny the permit within 30 days of receipt of the Regional Administrator's notification.
(i) If no public hearing is held under paragraph (g) of this section, the Director within 90 days of receipt of the objection or requirement for a permit condition shall either issue the permit revised to satisfy EPA's objections or notify EPA of its intent to deny the permit.
(j) In the event that the Director neither satisfies EPA's objections or requirement for a permit condition nor denies the permit, the Secretary shall process the permit application.
(a) The MOA with the Regional Administrator shall specify the categories of discharge for which EPA will waive Federal review of State permit applications. After program approval, the MOA may be modified to reflect any additions or deletions of categories of discharge for which EPA will waive review. The Regional Administrator shall consult with the Corps, FWS, and NMFS prior to specifying or modifying such categories.
(b) With the following exceptions, any category of discharge is eligible for consideration for waiver:
(1) Draft general permits;
(2) Discharges with reasonable potential for affecting endangered or threatened species as determined by FWS;
(3) Discharges with reasonable potential for adverse impacts on waters of another State;
(4) Discharges known or suspected to contain toxic pollutants in toxic amounts (section 101(a)(3) of the Act) or hazardous substances in reportable quantities (section 311 of the Act);
(5) Discharges located in proximity of a public water supply intake;
(6) Discharges within critical areas established under State or Federal law, including but not limited to National and State parks, fish and wildlife sanctuaries and refuges, National and historical monuments, wilderness areas and preserves, sites identified or proposed under the National Historic Preservation Act, and components of the National Wild and Scenic Rivers System.
(c) The Regional Administrator retains the right to terminate a waiver as to future permit actions at any time by sending the Director written notice of termination.
(a) The starting date for the annual period to be covered by reports shall be established in the Memorandum of Agreement with the Regional Administrator (§ 233.13.)
(b) The Director shall submit to the Regional Administrator within 90 days after completion of the annual period, a draft annual report evaluating the State's administration of its program identifying problems the State has encountered in the administration of its program and recommendations for resolving these problems. Items that shall be addressed in the annual report include an assessment of the cumulative impacts of the State's permit program on the integrity of the State regulated waters; identification of areas of particular concern and/or interest within the State; the number and nature of individual and general permits issued, modified, and denied; number of violations identified and number and nature of enforcement actions taken; number of suspected unauthorized activities reported and nature of action taken; an estimate of extent of activities regulated by general permits; and the number of permit applications received but not yet processed.
(c) The State shall make the draft annual report available for public inspection.
(d) Within 60 days of receipt of the draft annual report, the Regional Administrator will complete review of the draft report and transmit comments,
(e) Within 30 days of receipt of the Regional Administrator's comments, the Director will finalize the annual report, incorporating and/or responding to the Regional Administrator's comments, and transmit the final report to the Regional Administrator.
(f) Upon acceptance of the annual report, the Regional Administrator shall publish notice of availability of the final annual report.
(a) A State with a program approved under this part may voluntarily transfer program responsibilities required by Federal law to the Secretary by taking the following actions, or in such other manner as may be agreed upon with the Administrator.
(1) The State shall give the Administrator and the Secretary 180 days notice of the proposed transfer. The State shall also submit a plan for the orderly transfer of all relevant program information not in the possession of the Secretary (such as permits, permit files, reports, permit applications) which are necessary for the Secretary to administer the program.
(2) Within 60 days of receiving the notice and transfer plan, the Administrator and the Secretary shall evaluate the State's transfer plan and shall identify for the State any additional information needed by the Federal government for program administration.
(3) At least 30 days before the transfer is to occur the Administrator shall publish notice of transfer in the
(b) The Administrator may withdraw program approval when a State program no longer complies with the requirements of this part, and the State fails to take corrective action. Such circumstances include the following:
(1) When the State's legal authority no longer meets the requirements of this part, including:
(i) Failure of the State to promulgate or enact new authorities when necessary; or
(ii) Action by a State legislature or court striking down or limiting State authorities.
(2) When the operation of the State program fails to comply with the requirements of this part, including:
(i) Failure to exercise control over activities required to be regulated under this part, including failure to issue permits;
(ii) Issuance of permits which do not conform to the requirements of this part; or
(iii) Failure to comply with the public participation requirements of this part.
(3) When the State's enforcement program fails to comply with the requirements of this part, including:
(i) Failure to act on violations of permits or other program requirements;
(ii) Failure to seek adequate enforcement penalties or to collect administrative fines when imposed, or to implement alternative enforcement methods approved by the Administrator; or
(iii) Failure to inspect and monitor activities subject to regulation.
(4) When the State program fails to comply with the terms of the Memorandum of Agreement required under § 233.13.
(c) The following procedures apply when the Administrator orders the commencement of proceedings to determine whether to withdraw approval of a State program:
(1)
(2)
(i)
(ii)
(iii)
(3)
(A) Section 22.02—(use of number/gender);
(B) Section 22.04—(authorities of Presiding Officer);
(C) Section 22.06—(filing/service of rulings and orders);
(D) Section 22.09—(examination of filed documents);
(E) Section 22.19 (a), (b) and (c)—(prehearing conference);
(F) Section 22.22—(evidence);
(G) Section 22.23—(objections/offers of proof);
(H) Section 22.25—(filing the transcript; and
(I) Section 22.26—(findings/conclusions).
(ii) The following provisions are also applicable:
(A) Computation and extension of time.
(
(
(
(B) Ex parte discussion of proceeding. At no time after the issuance of the order commencing proceedings shall the Administrator, the Regional Administrator, the Regional Judicial Officer, the Presiding Officer, or any other person who is likely to advise these officials in the decisions on the case, discuss ex parte the merits of the proceeding with any interested person outside the Agency, with any Agency staff member who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any representative of such person. Any ex parte memorandum or other communication addressed to the Administrator, the Regional Administrator, the Regional Judicial Officer, or the Presiding Officer during the pendency of the proceeding and relating to the merits thereof, by
(C) Intervention—(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(A) Appear by counsel or other representative in all hearing and prehearing proceedings;
(B) Agree to stipulations of facts which shall be made a part of the record.
(7)
(ii) Copies of the recommended decision shall be served upon all parties.
(iii) Within 20 days after the certification and filing of the record and recommended decision, all parties may file with the Administrator exceptions to the recommended decision and a supporting brief.
(8)
(ii) If the Administrator concludes that the State has administered the program in conformity with the Act and this part, his decision shall constitute “final agency action” within the meaning of 5 U.S.C. 704.
(iii) If the Administrator concludes that the State has not administered the program in conformity with the Act and regulations, he shall list the deficiencies in the program and provide the State a reasonable time, not to exceed 90 days, to take such appropriate corrective action as the Administrator determines necessary.
(iv) Within the time prescribed by the Administrator the State shall take such appropriate corrective action as required by the Administrator and shall file with the Administrator and all parties a statement certified by the State Director that appropriate corrective action has been taken.
(v) The Administrator may require a further showing in addition to the certified statement that corrective action has been taken.
(vi) If the state fails to take appropriate corrective action and file a certified statement thereof within the time prescribed by the Administrator, the Administrator shall issue a supplementary order withdrawing approval -of the State program. If the State -takes appropriate corrective action, the -Administrator shall issue a supplementary order stating that approval of authority is not withdrawn.
(vii) The Administrator's supplementary order shall constitute final Agency action within the meaning of 5 U.S. 704.
(d) Withdrawal of authorization under this section and the Act does not relieve any person from complying with the requirements of State law, nor does it affect the validity of actions taken by the State prior to withdrawal.
Section 518(e) of the CWA, 33 U.S.C. 1378(e), authorizes the Administrator to treat an Indian Tribe as eligible to apply for the 404 permit program under section 404(g)(1) if it meets the following criteria:
(a) The Indian Tribe is recognized by the Secretary of the Interior.
(b) The Indian Tribe has a governing body carrying out substantial governmental duties and powers.
(c) The functions to be exercised by the Indian Tribe pertain to the management and protection of water resources which are held by an Indian Tribe, held by the Untied States in trust for the Indians, held by a member of an Indian Tribe if such property interest is subject to a trust restriction an alienation, or otherwise within the borders of the Indian reservation.
(d) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised, in a manner consistent with the terms and purposes of the Act and applicable regulations, of an effective section 404 dredge and fill permit program.
An Indian Tribe may apply to the Regional Administrator for a determination that it meets the statutory criteria which authorize EPA to treat the Tribe in a manner similar to that in which it treats a State, for purposes of the section 404 program. The application shall be concise and describe how the Indian Tribe will meet each of the requirements of § 233.60. The application should include the following information:
(a) A statement that the Tribe is recognized by the Secretary of the Interior.
(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. This Statement should:
(1) Describe the form of the Tribal government.
(2) Describe the types of governmental functions currently performed by the Tribal governing body, such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population; taxation; and the exercise of the power of eminent domain; and
(3) Identify the source of the Tribal government's authority to carry out the governmental functions currently being performed.
(c)(1) A map or legal description of the area over which the Indian Tribe asserts regulatory authority pursuant to section 518(e)(2) of the CWA and § 233.60(c);
(2) A statement by the Tribal Attorney General (or equivalent official) which describes the basis for the Tribe's assertion under section 518(e)(2) (including the nature or subject matter of the asserted regulatory authority) which may include a copy of documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's assertion of authority;
(d) A narrative statement describing the capability of the Indian Tribe to administer an effective 404 permit program. The Statement may include:
(1) A description of the Indian Tribe's previous management experience which may include the administration of programs and services authorized by the Indian Self Determination & Education Act (25 U.S.C. 450
(2) A list of existing environmental or public health programs administered by the Tribal governing body, and a copy of related Tribal laws, regulations, and policies;
(3) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government.
(4) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary responsibility for establishing and administering a section 404 dredge and fill permit program or plan which proposes how the Tribe will acquire additional administrative and technical expertise. The plan must address how the Tribe will obtain the funds to acquire the administrative and technical expertise.
(5) A description of the technical and administrative abilities of the staff to administer and manage an effective, environmentally sound 404 dredge and fill permit program.
(e) The Administrator may, at his discretion, request further documentation necessary to support a Tribal application.
(f) If the Administrator has previously determined that a Tribe has met the requirements for eligibility or for “treatment as a State” for programs authorized under the Safe Drinking Water Act or the Clean Water Act, then that Tribe need only provide additional information unique to the particular statute or program for which the Tribe is seeking additional authorization.
(a) The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to § 233.61 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.
(b) The Regional Administrator shall follow the procedures described in § 233.15 in processing a Tribe's request to assume the 404 dredge and fill permit program.
The applicable regulatory program for discharges of dredged or fill material into waters of the United States in Michigan that are not presently used, or susceptible for use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to the ordinary high water mark, including wetlands adjacent thereto, except those on Indian lands, is the program administered by the Michigan Department of Natural Resources, approved by EPA, pursuant to section 404 of the CWA. Notice of this approval was published in the
(a)
(1) The Great Lakes Submerged Lands Act, MCL 322.701
(2) The Water Resources Commission Act, MCL 323.1
(3) The Goemaere-Anderson Wetland Protection Act, MCL 281.701
(4) The Inland Lakes and Stream Act, MCL 281.951
(5) The Michigan Administrative Procedures Act of 1969, MCL 24-201
(6) An act concerning the Erection of Dams, MCL 281.131
(7) R 281.811 through R 281.819 inclusive, R 281.821, R 281.823, R 281.824, R 281.832 through R 281.839 inclusive, and R 281.841 through R 281.845 inclusive of the Michigan Administrative Code (1979 ed., 1982 supp.).
(b)
(1) Administrative Procedures Act, MCLA 24.201
(2) Freedom of Information Act, MCLA 15.231
(3) Open Meetings Act, MCLA 15.261
(4) Michigan Environmental Protection Act, MCLA 691.1201
(c)
(2) The Memorandum of Agreement between the U.S. Army Corps of Engineers and the Michigan Department of Natural Resources, signed by the Commander, North Central Division, on March 27, 1984.
(d)
(e) The Program description and any other materials submitted as part of the original application or supplements thereto.
The applicable regulatory program for discharges of dredged or fill material into waters of the United States in New Jersey that are not presently used, or susceptible for use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to the ordinary high water mark, including wetlands adjacent thereto, except those on Indian lands, is the program administered by the New Jersey Department of Environmental Protection and Energy, approved by EPA, pursuant to section 404 of the CWA. The program becomes effective March 2, 1994. This program consists of the following elements, as submitted to EPA in the State's program application:
(a)
(b) Copies of materials incorporated by reference may be inspected at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(1) New Jersey Statutory Requirements Applicable to the Freshwater Wetlands Program, 1994.
(2) New Jersey Regulatory Requirements Applicable to the Freshwater Wetlands Program, 1994.
(c)
(1) Administrative Procedure Act, N.J.S.A. 52:14B-1
(2) New Jersey Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1
(3) Open Public Meetings Act, N.J.S.A. 10:4-6
(4) Examination and Copies of Public Records, N.J.S.A. 47:1A-1
(5) Environmental Rights Act, N.J.S.A. 2A:35A-1
(6) Department of Environmental Protection (and Energy), N.J.S.A. 13:1D-1
(7) Water Pollution Control Act, N.J.S.A. 58:10A-1
(d)
(1) The Memorandum of Agreement between EPA Region II and the New Jersey Department of Environmental Protection and Energy, signed by the EPA Region II Acting Regional Administrator on June 15, 1993.
(2) The Memorandum of Agreement between the U.S. Army Corps of Engineers and the New Jersey Department of Environmental Protection and Energy, signed by the Division Engineer on March 4, 1993.
(3) The Memorandum of Agreement between EPA Region II, the New Jersey Department of Environmental Protection and Energy, and the U.S. Fish and Wildlife Service, signed by all parties on December 22, 1993.
(e)
(1) Attorney General's Statement, signed by the Attorney General of New Jersey, as submitted with the request for approval of The State of New Jersey's 404 Program.
(2) The program description and any other materials submitted as part of the original application or supplements thereto.
42 U.S.C. 6914b-1.
The purpose of this part is to require that plastic ring carriers be made of degradable materials as described in §§ 238.20 and 238.30. The requirements of this part apply to all processors and importers of plastic ring carriers in the United States as defined in § 238.20.
For the purpose of this part:
(a) No processor or person shall manufacture or import, in bulk, ring carriers intended for use in the United States unless they are designed and manufactured so that the ring carriers degrade to the point of 5 percent elongation at break, when tested in accordance with ASTM D-3826-91, “Standard Practice for Determining Degradation End Point in Degradable Polyolefins Using a Tensile Test”, after the ring carrier is exposed to, either:
(1) 250 light-hours of UV in accordance with ASTM D-5208-91,” Standard Practice for Operating Fluorescent Ultraviolet (UV) and Condensation Apparatus for Exposure of Photodegradable Plastics”, using cycle A; or
(2) 35 days, during June and July, to marine conditions in a location below the latitude 26 degrees North, in continental United States waters.
(b) The incorporation by reference of ASTM D-3826-91, “Standard Practice for Determining Degradation End Point in Degradable Polyolefins Using a Tensile Test”, and ASTM D-5208-91, “Standard Practice for Operating Fluorescent Ultraviolet (UV) and Condensation Apparatus for Exposure of Photodegradable Plastics,” was approved by the director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies are available from the American Society of Testing and Materials, 1916 Race Street, Philadelphia, PA 19103. Copies may be inspected at the Resource Conservation and Recovery Act (RCRA) Docket Information Center, (5305), U.S. Environmental Protection Agency Headquarters, 1200 Pennsylvania Ave., NW., Washington, DC 20460 or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: